UPDATED 07b TOM Remedial Law Bar Reviewer II

Sancte Michael, defende nos in proelio!
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TOM Bar Reviewer in Remedial Law II

Special Proceedings. Criminal Procedure. Evidence. Summary Procedure. Small Claims.
Katarungang Pambarangay. Procedure for Environmental Cases.
COVERAGE
IV. Special Proceedings 2

V. Criminal Procedure 4
5.1. General matters 4
5.2. Prosecution of offenses [Rule 110] 4
5.3. Prosecution of civil action [Rule 111] 5
5.4. Preliminary investigation [Rule 112] 5
5.5. Arrest [Rule 113] 6
5.6. Bail [Rule 114] 7
5.7. Rights of the accused [Rule 115] 10
5.8. Arraignment and plea [Rule 116] 11
5.9. Motion to quash [Rule 117] 11
5.10. Pre-trial [Rule 118] 11
5.11. Trial [Rule 119] 11
5.12. Judgment [Rule 120] 12
5.13. New trial or reconsideration [Rule 121] 12
5.14. Appeal [Rule 122] 13
5.15. Search and seizure [Rule 126] 13
5.16. Provisional remedies [Rule 127] 14
VI. Evidence 15
VII. Revised Rules on Summary Procedure 15
VIII. Rule of Procedure for Small Claims Cases 15
IX. Katarungang Pambarangay Law 15
X. Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC) 18
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IV. Special Proceedings
4.1. Writ of habeas corpus 2

Scope of the writ 4
WHC & THE CONSTITUTION 4
Purpose 4
Nature of the petition 5
Period of appeal 5
Grounds for the issuance of writ of habeas corpus as a consequence of judicial
proceeding 6
Who may grant the writ 7
WHO ISSUES THE WRIT? 10
To whom writ is directed 11
How service is made 11
How writ is executed and returned 11
4.13.1. Contents of the petition 11
4.13.2. Contents of the return 12
Return to be signed and sworn to 12
Hearing on return 13
4.13.3. Distinguish peremptory writ from preliminary citation 13
4.13.4. When not proper/applicable 14
In cases of Illegal Confinement or Detention 15
Voluntary restraint 15
4.13.5. When writ disallowed/discharged 15
4.13.6. Habeas corpus vs. Amparo vs. Habeas data vs. Kalikasan 15
Bar areas related to this table:******* 18
4.13.7. Rules on Custody of Minors and Writ of Habeas Corpus in relation to Custody of
Minors (A.M. No. 03-04-04-SC) 28
Who may file a petition for custody of minor 29
Where filed 29
Contents of the verified petition 29
Provisional order awarding custody 31
SOME TECHNICAL MATTERS 31
POSSIBLE SCENARIOS ON THE SECOND FORM OF HABEAS CORPUS***** 32
4.2. Writ of Amparo (A.M. No. 07-9-12-SC) 33
ON THE WRIT OF AMPARO 34

Nature of writ of Amparo 34
Right to life, liberty and security 34
4.14.1. Coverage 36
Writ NOT available for protection of property right 37
Writ NOT available in a labor dispute 39
Inclusion of name in the Order of Battle NOT sufficient 39
4.14.2. Distinguish from habeas corpus and habeas data 40
4.14.3. Differences between amparo and search warrant 41
4.14.4. Who may file 41
Where to file 41
Contents of the petition (AMPARO)***** 42
Sufficiency of the petition in form and substance 42
4.14.5. Contents of return 43
Where returnable; enforceable 43
4.14.6. Effects of failure to file return 44
4.14.7. Omnibus waiver rule 44
4.14.8. Procedure for hearing 44
Issuance of the Writ 45
4.14.9. Institution of separate action 45
4.14.10. Effect of filing of a criminal action 45
4.14.11. Consolidation 46
4.14.12. Interim reliefs available to petitioner and respondent 46
4.14.13. Quantum of proof in application for issuance of writ of amparo 47
Judgment 47
4.3. Writ of Habeas Data (A.M. No. 08-1-16-SC) 48
4.15.1. Scope of writ 49
4.15.2. Availability of writ 49
4.15.3. Distinguished from habeas corpus and amparo 50
4.15.4. Contents of the petition 50
Who may file 51
4.15.5. Contents of return 51
4.15.6. Instances when petition may be heard in chambers 51
4.15.7. Consolidation 52
4.15.8. Effect of filing of a criminal action 52
4.15.9. Institution of separate action 52
4.15.10. Quantum of proof in application for issuance of writ of amparo 52

Issuance of the writ vs. Privilege of the writ***** 53
Omitted Rules (Bar 2017) 53
——————————————————————————————
4.1. Writ of habeas corpus
ON THE WRIT OF HABEAS CORPUS

1. It is a writ directed to the person detaining another and commanding
him to produce the body of the prisoner at a certain time and place with
the day and the cause of his caption and detention, to do, submit to and receive
whatsoever, the court or judge awarding the writ shall consider in that behalf.
2. It is regarded as “palladium of liberty”, [palladium: a safeguard; a source of
protection], a prerogative writ which does not issue as a matter of right but
in the sound discretion of the court or judge.
SCOPE OF THE WRIT

******Habeas corpus extends to:
1. Cases of illegal1 confinement or detention by which a person is deprived
of his liberty; and
2. Cases by which the rightful custody of the person is withheld from the
person entitled thereto (Sec. 1, Rule 102).
WHC & THE CONSTITUTION

1. Sec 18, Art. VII talk about the suspension of the PRIVILEGE of the writ of
habeas corpus [privilege = right to avail of Rule 102]
2. Sec. 15, Art. III refers to grounds for the suspension of the PWHC
[] Section 15. The privilege of the writ of habeas corpus shall not be
suspended except in cases of invasion or rebellion, when the public safety
requires it.
3. It is repeated in Sec. 18, Art. VII.2
1*****Hence, if the person is arrested under the instance of valid warrantless arrest [Sections 5 & 13, Rule
113; Sec. 23, Rule 114], this writ shall not lie.
2
[] Section 18. The President… In case of invasion or rebellion, when the public safety requires
it, he may, for a period not exceeding sixty days, suspend the PRIVILEGE of the writ of
habeas corpus or place the Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the privilege of the writ of
habeas corpus, the President shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a MAJORITY of ALL its Members in regular or
special session, may revoke such proclamation or suspension, which revocation shall not be set
Purpose
1. The essential object and purpose of the writ of habeas corpus is to inquire
into all manner of involuntary restraint as distinguished from voluntary and to
relieve a person therefrom if such restraint is illegal.
2. ****To justify the grant of the petition, the restraint of liberty must be an
illegal and involuntary deprivation of freedom of action. The illegal restraint
of liberty must be ACTUAL and EFFECTIVE, not merely nominal or
moral (Ilusorio v. Bildner, G.R. Nos. 135789-90, May 16, 2000).
3. Under Section 1, Rule 102 of the Rules of Court, the writ of habeas corpus
extends to “all cases of illegal confinement or detention by which any
person is deprived of his liberty, or by which the rightful custody of any person
is withheld from the person entitled thereto.” The remedy of habeas corpus
has one objective: to inquire into the CAUSE OF DETENTION of a
person, and if found illegal, the court orders the release of the detainee. If,
however, the detention is proven lawful, then the habeas corpus
proceedings terminate (In the Matter of the Petition for Habeas Corpus of
Kunting, G.R. No. 167193, April 19, 2006).
Nature of the petition

1. Habeas Corpus is a SUMMARY REMEDY. It is analogous to a
PROCEEDING IN REM when instituted for the sole purpose of having the
person of restraint presented before the judge in order that the cause of his
detention may be inquired into and his statements final. The writ of habeas
corpus does not act upon the prisoner who seeks relief, but upon the
person who holds him in what is alleged to be the unlawful authority.
aside by the President. Upon the initiative of the President, the Congress may, in the same
manner, EXTEND such proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
he suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.
*****During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be released.
******Hence, the only parties before the court are the petitioner
(prisoner) and the person holding the petitioner in custody, and the only
question to be resolved is whether the custodian has authority to deprive
the petitioner of his liberty (Caballes v. CA, G.R. No. 163108, February 23,
2005).
2. *****The writ itself plays the role of SUMMONS in ordinary actions;
the court ACQUIRES JURISDICTION OVER THE PERSON of the respondent
by mere service of the writ (Sec. 7, Rule 102).
3. ******The writ of habeas corpus and certiorari may be ANCILLARY to
each other where necessary to give effect to the supervisory powers of the
higher courts.3 A writ of habeas corpus reaches the body and the
jurisdictional matters, but not the record. A writ of certiorari reaches the
record but not the body. *****Hence, a writ of habeas corpus may be used
with the writ of certiorari for the purpose of review (Galvez v. CA, G.R.
No. 114046, October 24, 1994).
4. The person released by virtue of habeas corpus may no longer be
imprisoned again for the same offense, except by the lawful order or
process of a court having jurisdiction of the cause or offense (Sec. 17, Rule
102).
5. In habeas corpus cases, the judgment in favor of the applicant cannot
contain a provision for damages.
Period of appeal
[] Under BP 129, the period of appeal in habeas corpus cases shall be ******48
hours4 from the notice of the judgment or final order appealed from.
3 [] Q: A municipal trial judge, who is related within the third degree of consanguinity to Archie,
complainant, has conducted an ex parte preliminary investigation without affording Ben, accused, opportunity
to be heard and thereafter issued a warrant of arrest, pursuant to which Ben has been detained, and
subsequently forwarded the records of the case to the provincial prosecutor for appropriate action. Will
habeas corpus and certiorari lie?
YES, a petition for habeas corpus to relieve Ben under the illegal warrant of arrest, and for
certiorari to assail the warrant of arrest may be filed, and *****the judge may properly be made
respondent, even though the accused has been in physical custody of the Provincial warden, as the
judge has constructive custody of the accused. For the illegal order and warrant of arrest issued by
the judge subsists and Ben is offered no speedy, adequate remedy or appeal in the ordinary course
of law. The writ of habeas corpus, although not designed to interrupt the orderly administration of
justice, can be invoked, in fine, by the attendance of special circumstance that requires immediate action
(Calvan v. CA, G.R. No.140823, October 3, 2000).
4 Dorothy filed a petition for writ of habeas corpus against her husband, Roy, to get from him custody of
their 5 year old son, Jeff. The court granted the petition and required Roy to turn over Jeff to his mother.
Roy sought reconsideration but the court denied it. He filed a notice of appeal five days from receipt of
the order denying his motion for reconsideration. Did he file a timely notice of appeal? (2011 BAR)
(A) No, since he filed it more than 2 days after receipt of the decision granting the petition.
(B) No, since he filed it more than 2 days after receipt of the order denying his motion for
reconsideration.
GROUNDS FOR THE ISSUANCE OF WRIT OF HABEAS CORPUS

as a consequence of judicial proceeding
******
1. There has been a deprivation of a constitutional5 right6 resulting in
restraint of person;7 NB: the arrest was illegal.8
(C) Yes, since he filed it within 15 days from receipt of the denial of his motion for reconsideration.
(D) Yes, since he filed it within 7 days from receipt of the denial of his motion for reconsideration.
5
[] Bar 1998: In 1978, Pete was convicted by the then CFI of Cavite on the sole basis of his
extrajudicial confession. The decision soon became final and Pete has since been serving
sentence until now, although to this day, he insists that he is innocent and that his confession
had been coerced. He later learned of the SC’s decision in People v. Galit in which the Court
reversed a conviction that had been based solely on an uncounseled confession. He
forthwith caused a petition for habeas corpus to be filed, alleging that his confinement has all along
been illegal. The Government opposed the petition on the ground that the decision of
conviction had long become final and may no longer be reopened and that he is in fact serving
sentence. Will habeas corpus lie? Reasons.
YES. *****Once a deprivation of a CONSTITUTIONAL RIGHT is shown to exist,
the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the
appropriate remedy to assail the legality of the detention (Gumabon v. Director of Prisons,
G.R. No. L-30026, January. 30, 1971).
6
[] *****Violation of Art. 124 RPC (Arbitrary Detention) is a ground for the issuance of a WHC
because it amounts to illegal confinement. PHWC also applies to the following:*****
a. Art. 269. Unlawful arrest.
b. Art. 125. Failure to deliver the prisoner to proper judicial authorities within 12-18-36H.
c. Art. 126. Delaying release.
d. Not just physical arrest or being confined in jail, but also restriction of freedom of
movement [Villavicencio vs. Lukban, when the Mayor of Manila sent all the prostitutes to
Davao… there is illegal confinement]
e. Compelling a person to change his residence, which he cannot resist.
7 [] In all petitions for habeas corpus, the court must inquire into every phase and aspect of petitioner’s
detention, from the moment petitioner was taken into custody up to the moment the court passes upon
the merits of the petition and only after such a scrutiny can the court satisfy itself that the due process
clause of the Constitution has been satisfied (Bernarte v. CA, G.R. No. 107741, November 18, 1996).
8 Q: Hercules was walking near a police station when a police officer signalled for him to approach. As soon
as Hercules came near, the police officer frisked him but the latter found no contraband. The police
officer told Hercules to get inside the police station. Inside the police station, Hercules asked the police
officer, "Sir, may problema po ba?" Instead of replying, the police officer locked up Hercules inside the
police station jail.
[] What is the remedy available to Hercules to secure his immediate release from detention?
(2015)A: The remedy available to Hercules is to file a petition for habeas corpus questioning the
illegality of his warrantless arrest. The writ of habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is deprived of liberty (Sec. 1, Rule 102).
[] If Hercules filed with the Ombudsman a complaint for warrantless search, as counsel for the
police officer, what defense will you raise for the dismissal of the complaint? A: As counsel of policeman, I
will raise the defense of presumption of regularity in the performance of duty. I can also raise the
defense that the police officer has the duty to search Hercules under the “Stop-and-Frisk” rule. A stop-
and-frisk situation must precede a warrantless arrest, be limited to the person’s outer clothing, and
should be grounded upon a genuine reason, in the light of the police officers experience and
surrounding conditions, to warrant the belief that the person detained has weapons concealed about him
2. The court has no jurisdiction9 to impose the sentence;

3. An excessive penalty has been imposed, the sentence being void as to
excess;
4. Where the law is amended, as when the penalty is lowered (Feria v. CA,
G.R. No. 122954, February 15, 2000).10 NB: if there is already conviction, the
petition won’t prosper.11
(Valdez v. People, G.R. No. 170180, November 23, 2007). The “stop-and-frisk” search should be used
“when dealing with rapidly unfolding and potentially criminal situation in the city streets where
unarguably there is no time to secure a search warrant.” “Stop-and-frisk” searches (sometimes referred to
as Terry searches) are necessary for law enforcement, that is, law enforcers should be given the legal
arsenal to prevent the commission of the offenses. This should be balanced, however, with the need
to protect the privacy of citizens in accordance with Article III, Section 2 of the Constitution (People of
the Philippines v. Victor Cogaed, G.R. No. 200334, July 30, 2014).
[] If Hercules opts to file a civil action against the police officer, will he have a cause of action? A:
YES. Hercules has a cause of action to file civil action against the police officer under Article 32(4) in
relation to Article 2219(6) and (10) of the New Civil code, which provides that a police officer may be liable
for damages when the right to be secure in one’s person, house, papers and effects against
unreasonable searches and seizures is impaired. The indemnity includes moral damages. Exemplary
damages may also be adjudicated (Galvante v. Casimiro, G.R. No. 162808, April 22, 2008).
9 *****When the MTC sentenced the convict with prision mayor, PWHC applies, because the MTC cannot
convict someone beyond 6 years. It also applies if the MTC convicted the person for only 6 years, but he is
still in prison beyond 6 years, *****because any confinement beyond 6 years would already be illegal
detention.
10
[] Q: Rita Labriaga was caught selling two tea bags of marijuana in Daraga, Albay in a buy-
bust operation conducted by the Narcotics Command. Rita was found in possession of 115 grams
of marijuana. Rita was convicted for violation of RA 6425 and was sentenced to life
imprisonment. Rita filed a motion for reconsideration with modification of sentence. Rita prays for
the retroactive application to her case of RA 7659 which imposes imprisonment of prision correccional
for less than 250 grams of marijuana and for her eventual release from confinement at the
Correctional Institution for Women in Mandaluyong as a consequence of the application of the
new law to her case. It appears that she already served sentence for more than a year. Should
the motion be granted?
YES. *****The appropriate remedy is to file a petition for habeas corpus considering
that the decision in this case is final. However, in accordance with the ruling in Angeles v.
Bilibid Prison (G.R. No. 117568, January 4, 1995) and People v. Agustin (G.R. No. 98362,
September 5, 1995), in which the *****SC held that the rules on habeas corpus should be
liberally applied in cases which are sufficient in substance, the motion in this case must be
treated as a substantial compliance with the rules on habeas corpus. Rita Labriaga, having
served more than the maximum imposable penalty of prision correccional, should be released
(People v. Labriaga, G.R. No. 92418, November 20, 1995).
11
[] Bar 2008: After Alma had started serving her sentence for violation of BP 22, she filed a
petition of writ of habeas corpus, citing Vaca v. CA where the sentence of imprisonment of a
party found guilty of violation of BP 22 was reduced to a fine equal to double the amount of
the check involved. She prayed that her sentence be similarly modified and that she be
immediately released from detention. In the alternative, she prayed that pending determination on
whether the Vaca ruling applies to her, she be allowed to post bail pursuant to Sec. 14, Rule 102,
which provides that if a person is lawfully imprisoned or restrained on a charge of having
committed an offense not punishable by death, he may be admitted to bail in the discretion
of the court. Accordingly, the trial court allowed Alma to post bail and then ordered her release.
a. In your opinion, is the decision of the trial court correct, under Rule 102? NO.
5. Denial of right to a speedy trial (since it is jurisdictional);

6. Where the results of post-conviction DNA testing are favorable to the
convict;12
7. Enable the parents to regain custody of a minor child, even if the latter be
in the custody of a third person of her own free will;
8. In determining the constitutionality of a statute (People v. Vera, G.R.
No. L-45685, November 16, 1937).
9. When testing the legality of an alien’s confinement and proposed
expulsion from the Philippines (Lao Tang Bun v. Fabre, G.R. No. L-1673,
October 22, 1948).13
10. In permitting an alien to land in the Philippines (Lim Cheng v. Insular
Collector of Customs, G.R. No. 16406, September 13, 1920); and
11. In determining the legality of an extradition (United States v. Rauscher, 7
S. Ct. 234, 30 L. Ed. 425, December 6, 1886).
12. When a supervening event occurred such as marriage in cases of rape.14
*****Section 4, Rule 102 of the Rules of Court (habeas corpus) does not authorize a court to
discharge by writ of habeas corpus a person charged with or convicted of an offense in the
Philippines, or of a person suffering imprisonment under lawful judgment.
b. Under the Rules of Criminal Procedure? NO. The trial court’s Order releasing Alma on
bail even after judgment against her has become final and in fact she has started serving
sentence, is a brazen disregard of the mandate in Sec. 24, Revised Rules of Criminal Procedure
that: “In no case shall bail be allowed after the accused has commenced to serve sentence”
(People v. Fitzgerald, G.R. No. 149723, October 27, 2006).
12 C, a convict, was able to get favorable results of a post-conviction DNA testing showing that C could not
have committed the crime. To gain freedom, C may: (2012 BAR)
a. file a petition for Writ of Habeas Corpus before the court of origin.
b. applyforfullpardon.
c. file a Motion to annul judgment of conviction on the ground of fraud.
d. fileaMotionfornewtrialunderRule121.
13
[] Q: Luis Ramos initiated a complaint-affidavit for deportation before the Bureau of
Immigration and Deportation (BID) against Jimmy Go alleging that the latter is an illegal and
undesirable alien. The complaint for deportation was dismissed but was subsequently reversed by
the Board of Commissioners; hence the corresponding Charge Sheet was filed against Jimmy,
charging him of violating the Philippine Immigration Act of 1940. The Board of Commissioners
issued a warrant of deportation which led to the apprehension of Jimmy. Jimmy commenced
a petition for habeas corpus. Should the petition be granted?
NO. *****Once a person detained is duly charged in court, he may no longer question
his detention through a petition for issuance of a writ of habeas corpus. His remedy would be
to quash the information and/or the warrant of arrest duly issued. The writ of habeas corpus
should not be allowed after the party sought to be released had been charged before any
court. *****The term “court” in this context includes quasi-judicial bodies of governmental
agencies authorized to order the person’s confinement, like the Deportation Board of the Bureau
of Immigration (Carlos Go Sr. v. Luis Ramos, G.R. No. 167569; Jimmy Go v. Luis Ramos, G.R.
No. 167570; Hon. Alipio Fernandez v. Jimmy Go, G.R. No. 171946, September 4, 2009).
14[] Bar 2005: Mariano was convicted by the RTC for raping Victoria and meted the penalty of reclusion
perpetua. ****While serving sentence, Mariano and Victoria got married. Mariano filed a motion in
said court for his release from the penitentiary on his claim that under RA 8353, his marriage to Victoria
Who may grant the writ

1. The RTC, CA, and SC have CONCURRENT15 JURISDICTION to
issue writs of habeas corpus. The MTC, by virtue of special jurisdiction
under BP. 129, can issue the writ in case there is no available RTC judge.
*****Hierarchy of courts is NOT observed.
2. The writ issued by the RTC is enforceable within its territorial
jurisdiction. While the writ issued by the CA or SC is enforceable anywhere
in the Philippines (Sec. 2, Rule 102).
*This provision is another exception to the rule that processes of the
RTC are enforceable throughout the Philippines (Regalado, Vol. II, 10thed.
p.176).
3. The Sandiganbayan may issue writs of habeas corpus only if it is in aid of
its appellate jurisdiction (Sec. 4, P.D. 1606, as amended by RA 8249).
4. Family Courts have EXCLUSIVE jurisdiction to issue writs of habeas
corpus involving custody of minors.16
PROCEDURE FOR GRANT OF WRIT

1. Verified petition signed by the party for whose relief it is intended; or by
some other person in his behalf;
extinguished the criminal action against him for rape, as well as the penalty imposed on him. The court
denied the motion on the ground that it had lost jurisdiction over the case after its decision had
become final and executory. What remedy/ies should the counsel of Mariano take to secure his proper
and most expeditious release from the National Penitentiary? Explain:
His counsel should file a petition for habeas corpus for the illegal confinement of Mariano or a
motion in the court which convicted Mariano to nullify the execution of his sentence or the order of
his commitment on the ground that a SUPERVENING development had occurred.
15
[] Bar 1993: Roxanne, a widow, filed a petition for habeas corpus with the CA against Major
Amor who is allegedly detaining her 18-year old son Bong without authority of law. After Major
Amor had filed a return alleging the cause of detention of Bong, the CA promulgated a
resolution remanding the case to the RTC for a full-blown trial due to the conflicting facts
presented by the parties in their pleadings. In directing the remand, the CA relied on Sec. 9 (1), in
relation to Sec. 21 of BP 129 conferring upon said court the authority to try and decide habeas
corpus cases concurrently with the RTCs. Did the CA act correctly in remanding the petition to the
RTC? Why?
NO, because while the CA has original jurisdiction over habeas corpus concurrent
with the RTC, it has no authority to remand to the latter original actions filed with the former.
On the contrary, the CA is specifically given the power to receive evidence and perform any
and all acts necessary to resolve factual issues raised in cases falling within its original
jurisdiction (Sec. 9, BP 129, as amended by EO 33, s. 1986).
16[] Jurisdiction in case of Habeas Corpus with respect to Custody of Minors. *****Although the Family
Court where the petitioner resides or where the minor may be found has exclusive and original
jurisdiction to hear petitions for habeas corpus with respect to custody of minors, the Supreme Court
and the Court of Appeals can take cognizance of such petition in order that it can be enforceable
within the Philippines. However, the return can be heard in the FC/RTC (if there is no FC in the judicial
region) and there is no need to file a separate petition for custody because the issue can be ventilated in
the petition for the writ.
2. Allowance of writ;
3. Command officer to produce;
4. Service of writ by sheriff or other officer;
5. Return; and
6. Hearing on return (Sec. 5, Rule 102).
WHO ISSUES THE WRIT?

1. GR: If it appears that the writ should issue, the clerk of court issues the writ
under the court’s seal.
2. XPN: In emergency cases, the judge may issue the writ under his own
hand and deputize any person to serve it (Sec. 5, Rule 102).
3. NB: The law even makes it the duty of the court to grant the writ of
habeas corpus, if there is evidence that a person is unjustly restrained
within the court’s jurisdiction, though no application for the writ was made
(Villavicencio v. Lukban, G.R. No. L-14639, March 25, 1919).
To whom writ is directed

1. In case of imprisonment or restraint by an officer.
a. The writ shall be directed to him.
b. The officer shall produce the body of the person before the court.
c. State the cause of detention and prove his authority.
2. In case of imprisonment or restraint by a person not an officer
a. ****The writ shall be directed to an officer.
b. The officer shall take and produce the body of the person before the
court.
c. The officer shall summon the person detaining another to appear
before the court to show the cause of the imprisonment or restraint (Sec. 6, Rule
102).
How service is made

1. By leaving the original of the writ with the person to whom it is directed or to
any person having custody if the former cannot be found or has not the person in
his custody; and
2. By preserving a copy on which to make return of service.
****The writ itself plays the role of summons in ordinary actions;
court acquires jurisdiction over the person of the respondent by MERE
SERVICE of writ (Sec. 7, Rule 102).
How writ is executed and returned

1. GR: Officer to whom writ is directed shall convey the detained person on
the day specified in the writ:
a. Before the judge who allowed the writ; or

b. If he is absent, before any judge of the same court.
2. XPN: If the person to be produced has sickness or infirmity such that he
cannot be brought before the court without danger (Sec. 8, Rule 102).
4.13.1. Contents of the petition

*A party for whose relief it is intended, or some person on his behalf,17 may
apply through a verified petition for a writ of habeas corpus and should
contain the following (to be construed liberally18):
1. That the person in whose behalf the application is made is imprisoned or
restrained of his liberty;
2. The officer or name of the person by whom he is so imprisoned or
restrained; or, if both are unknown or uncertain, such officer or person may
be described by an assumed appellation, and the person who is served
with the writ shall be deemed the person intended;
3. The place where he is so imprisoned or restrained, if known;
4. The cause of his detention; and
5. The verified petition must be signed.
4.13.2. Contents of the return

*When the person to be produced is imprisoned or restrained by an officer,
the person who makes the return shall state therein, and in other cases the
person in whose custody the prisoner is found shall state, in writing to the
court or judge before whom the writ is returnable, plainly and unequivocally:
1. Whether he has or has not the party in his custody or power, or under
17 Q: A was arrested on the strength of a warrant of arrest issued by the RTC in connection with an
Information for Homicide. W, the live-in partner of A filed a petition for habeas corpus against A's
jailer and police investigators with the Court of Appeals.
1. Does W have the personality to file the petition for habeas corpus? (2%) Yes. W, the live-in
partner of A, has the personality to file the petition for habeas corpus because it may be filed by “some
person in his behalf.” (Sec. 3, Rule 102, Rules of Court.)
2. Is the petition tenable?(3%)(1998BarQuestion) No. The petition is not tenable because the
warrant of arrest was issued by a court which had jurisdiction to issue it (Sec. 4, Rule 102, Rules of
Court.)
18
****The formalities required for petitions for habeas corpus must be construed liberally. Strict
compliance with the technical requirements for a habeas corpus petition may be dispensed with
where the allegations in the application are sufficient to make out a case for habeas corpus
(Fletcher v. Director of Bureau of Corrections, UDK-14071, July 17, 2009).
The petition for the writ is required to be verified but the defect in form will not be
fatal. In fact, the Supreme Court has held that it is the duty of a court to issue the writ if there
is evidence that a person is unjustly restrained of his liberty within its jurisdiction ******even
if there is no application (Villavicencio v. Lukban, G.R. No. L-14639, March 25, 1919). It is
necessary, however, that the person in whose behalf the petition is filed is under actual and
effective restraint or deprivation of liberty (Gonzales v. Viola, G.R. No. L-43195, August 23,
1935).
restraint;
2. If he has the party in his custody or power, or under restraint, the authority
and the true and whole cause thereof, set forth at large, with a copy of the
writ, order, execution, or other process, if any, upon which the party is
held;
a. If it appears that the prisoner is in the custody of a public officer
under a warrant of commitment in pursuance of law, the return shall be
considered prima facie evidence of the validity of the restraint.
b. If he is restrained of his liberty by an alleged private authority, the
return shall be considered only as a plea of the facts therein set forth, and
the party claiming the custody must prove such facts (Sec. 13, Rule 102).
3. If the party is in his custody or power or is restrained by him, and is not
produced, particularly the nature and gravity of the sickness or infirmity of
such party by reason of which he cannot, without danger, be brought
before the court or judge;
4. If he has had the party in his custody or power, or under restraint, and has
transferred such custody or restraint to another, particularly to whom, at
what time, for what cause, and by what authority such transfer was made
(Sec. 10, Rule 102).
Return to be signed and sworn to

1. GR: The return or statement shall be sworn to by the person who makes
it.
2. XPN: The return is made and signed by a sworn public officer in his
official capacity.
3. XPN to the XPN: When the prisoner is not produced.
4. NB: In all cases, the return or statement shall be signed by the person who
makes it (Sec. 11, Rule 102).
Hearing on return
1. GR: The court or judge before whom the writ is returned or adjourned must
immediately proceed to hear and examine the return.
2. XPN: The hearing may be adjourned for good causes, provided that
conditions upon the safekeeping of the detained person are laid. If the
detained person cannot be produced before the court, the officer or person
detaining must satisfy the court of the gravity of the alleged sickness or
infirmity (Sec. 12, Rule 102).
3. NB: ****During the hearing, the court or judge shall disregard matters of
form and technicalities of the authority or order of commitment.
4. *****The failure of petitioners to file a reply to the return of the writ
warrants the dismissal of the petition because unless controverted, the
allegations on the return are deemed to be true or admitted (Florendo v.

Javier, G.R. No. L-36101, June 29, 1979).
5. Who bears the burden of proof?19*****
a. If the detention is by public authority, the return is considered
prima facie evidence of the validity of the restraint and the petitioner has
the burden of proof to show that the restraint is illegal.
b. If detention is by reason of private authority, the return is
considered only a plea of the facts asserted therein and the person
responsible for the detention has the burden of proof to establish that the
detention is legal and justified.
4.13.3. Distinguish peremptory writ from preliminary citation

******Kinds20 of Writ of Habeas Corpus
1. PRELIMINARY CITATION is issued when a government officer has
the person in his custody, the ILLEGALITY of which is NOT PATENT,
to SHOW CAUSE why the writ of habeas corpus should not issue.
2. PEREMPTORY WRIT is issued when the cause of the detention
appears to be *****PATENTLY ILLEGAL and the non-compliance
therewith is punishable (Lee Yick Hon v. Collector of Customs, G.R. No. 16779,
March 30, 1921).
19
[] Q: When the soldier’s defense to a petition for habeas corpus is that they released the
detainees for whom the petition was filed, but the allegation of release is disputed by the
parents of the detainees, and it is not denied that the detainees have not been seen or heard
from since their supposed release, do the parents have the burden in law of proving that the
their children are still detained by the soldiers or does the burden shifts to the soldiers?
The general rule in the number of cases is that the release of a detained person renders
moot and academic the petition for habeas corpus. *****The cited general rule postulates that
the release of the detainees is an established fact and not in dispute, and they do not constitute
to be missing persons. Where, however, there are grounds for grave doubts about the alleged
release of the detainees, where the standard and prescribed procedure has not been followed, then
the burden of proving by clear and convincing evidence the alleged release is SHIFTED
TO THE SOLDIERS, as the respondents to the petition (Dizon v. Eduardo, G.R. No. L-59118,
March 3, 1988).
20Q: Douglas, married to but separated from Ellen, one day fetched from school his daughter. 5-year old
Susan, and never returned heir to Ellen under whose custody the child was placed by the Regional Trial
Court of Manila in a suit for custody of the child After searching for her daughter for days Ellen learned
that Douglas had been moving the girl from one place to another within Metro Manila the last being the
residence of his sister Mary in Paranaque. Ellen’s current residence is Pasig.
(a) What is meant by a preliminary citation in cases involving deprivation of personal liberty?
Explain.
*****A preliminary citation merely requires the respondent to appear and show cause why the
peremptory writ of habeas corpus should not be granted. (Lee Yick Hon. vs. Collector of Customs,
Phil. 548)
(b) How is a preliminary citation distinguished from a peremptory writ of habeas corpus? Explain.
(1995 Bar Question) On the other hand, the peremptory writ of habeas corpus directs the officer to have
the body of the person restrained of his liberty before the court or judge designated in the writ at the
time and place therein specified. (Sec. 6. Rule 102)
*****In a habeas corpus petition, the order to present an individual

before the court is a PRELIMINARY STEP in the hearing of the petition.
The respondent must produce the person and explain the cause of his
detention. However, this order is NOT a ruling on the propriety of the
remedy or on the substantive matters covered by the remedy. Thus, the
Court’s order to the CA to conduct a factual hearing was not an affirmation of the
propriety of the remedy of habeas corpus (In the Matter of the Petition for
Habeas Corpus of Alejano vs. Cabuay, G.R. No. 160792, August 25, 2005).
4.13.4. When not proper/applicable

*****Habeas corpus is not applicable when the purpose is to:
1. Enforce a right of service;
2. Determine whether a person has committed a crime;
3. Determine a disputed interstate boundary line;
4. Punish respondent;
5. Recover damages or other money award;
6. Assert or vindicate denial of right to bail (In re: Azucena Garcia, G.R. No.
141443, November 18, 2000);
7. Correct errors in appreciation of facts or law.
In cases of Illegal Confinement or Detention

1. GR: The release whether permanent or temporary, of a detained person
renders the petition for habeas corpus moot and academic.
2. XPN: When there are restraints attached to his release which precludes
freedom of action, in which cases the court can still inquire into the nature
of his involuntary restraint (Villavicencio v. Lukban, G.R. No. L-14639,
March 25, 1919).
Voluntary restraint
1. GR: Writ is not available if restraint is voluntary (Kelly v. Director of
Prisons, G.R. No. L-20478, March 14, 1923).
2. XPN: Writ will lie to enable the parents (or person having substituted
parental authority) to recover custody of a minor child although she is in
custody of a 3rd person on her own volition (Tijing v. CA, G.R. No. 125901,
March 8, 2001).
3. NB: Voluntariness is viewed from the point of view of the person
entitled to custody.
4.13.5. When writ disallowed/discharged

*****Instances when the writ shall be disallowed or discharged
1. In cases of supervening events such as issuance of a process and filing
of an information (Velasco v. CA, G.R. No. 118844, July 7, 1995);

2. In cases of improper arrest or lack of preliminary investigation (Paredes
v. Sandiganbayan, G.R. No. 89989, January 28, 1991); ****The proper remedy
is to quash the warrant and conduct or direct preliminary investigation
(Raro v. Sandiganbayan, G.R. No. 108431, July 14, 2000).
3. In cases of invalid arrest due to deportation cases cured by filing of the
deportation proceedings (Santos v. Commissioner of Immigration, G.R. No.
L-25694, November 29, 1976).21
4. ****Petition for habeas corpus is not the appropriate vehicle for asserting
a right to bail22 or vindicating its denial (Galvez v. CA, G.R. No. 114046,
21
[] Q: Upon a complaint that he is issuing fake Alien Certificate Registration, Morgan, a
British national was arrested by the Bureau of Immigration and Deportation (BID). The Board
of Commissioners (BOC) of the BID issued a deportation order against Morgan. A week after,
Elisa, Morgan’s wife, filed a petition for the issuance of a writ of habeas corpus with the
Manila RTC naming the Immigration Commissioner as respondent. After trial, the RTC dismissed
Elisa’s petition on the ground that a petition for the issuance of a writ of habeas corpus is not the
proper remedy. Is the RTC correct?
YES, ****the power to deport aliens is vested on the President of the Philippines,
subject to the requirements of due process. The Immigration Commissioner is vested with
authority to deport aliens under Section 37 of the Philippine Immigration Act of 1940, as
amended. *****Thus, a party aggrieved by a Deportation Order issued by the BOC is
proscribed from assailing said order in the RTC via a petition for a writ of habeas corpus.
In case such motion for reconsideration is denied by the BOC, the aggrieved party may appeal
to the Secretary of Justice and, if the latter denies the appeal, to the Office of the President of
the Philippines. The party may also choose to file a petition for certiorari with the CA under
Rule 65 of the Rules of Court, on the ground that the Secretary of Justice acted with grave abuse
of discretion amounting to excess or lack of jurisdiction in dismissing the appeal, the remedy of
appeal not being an adequate and speedy remedy. In case the Secretary of Justice dismisses the
appeal, the aggrieved party may also resort to filing a petition for review under Rule 43 of the
Rules of Court, as amended (Johnson v. Makalino, G.R. No. 139255, November 24, 2003).
22
[] Q: Edward Serapiois under detention pursuant to the order of arrest issued by the
Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information
for plunder against Serapio and his co-accused. Edward had in fact voluntarily surrendered
himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been
issued. He filed a petition for habeas corpus contending that he is entitled to the issuance of said
writ because the State, through the prosecution's refusal to present evidence and by the
Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its burden of proving
that as against him, evidence of guilt for the capital offense of plunder is strong. He also maintains
that the issuance by the Sandiganbayan of new orders cancelling the bail hearings which it had
earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus,
since said orders have resulted in a continuing deprivation of Serapio's right to bail. Should the
petition for habeas corpus be granted?
NO. The general rule that habeas corpus does not lie where the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court which had
jurisdiction to issue the same applies. Moreover, a petition for habeas corpus is not the
appropriate remedy for asserting one's right to bail. It cannot be availed of where accused is
entitled to bail not as a matter of right but on the discretion of the court and the latter has
October 24, 1994). An application or admission to bail shall not bar the
accused from challenging the validity of the his arrest, or the legality of
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 (Sec. 26, Rule 114; A.M. No.00-5-03-
SC).23
5. Habeas corpus does not lie where the petitioner has the remedy of appeal
or certiorari because it will not be permitted to perform the functions of a
writ of error or appeal for the purpose of reviewing mere errors or
irregularities in the proceedings (Galvez v. CA, G.R. No. 114046, October 24,
1994). But note that habeas corpus can be filed simultaneously with a petition
for certiorari, supra.
PERSON DISCHARGED NOT TO BE AGAIN IMPRISONED

1. GR: A person who is set at liberty upon a writ of habeas corpus shall not be
again imprisoned for the same offense.
2. XPN: He is imprisoned by virtue of lawful order or process of court
having jurisdiction of the offense or cause (Sec. 17, Rule 102).24
3. NB: The release contemplated under the writ of habeas corpus is one which
is free from any involuntary restraint. When the person so released
continues to be denied of one or more of his constitutional freedoms where
there is present denial of due process, or where the restraints are not merely
involuntary but appear to be unnecessary, the person concerned or those acting
in his behalf may still avail themselves again of the privilege of the writ
(Moncupa v. Enrile, G.R. No. L-63345, January 30, 1986).
4. Can the State reserve the power to re-arrest a person for an offense after a
not abused such discretion in refusing to grant bail, or has not even exercised said discretion.
*****The proper recourse is to file an application for bail with the court where the criminal case
is pending and to allow hearings thereon to proceed. The issuance of a writ of habeas corpus
would not only be unjustified but would also preempt the Sandiganbayan's resolution of the
pending application for bail of Serapio. The recourse of Serapio is to forthwith proceed with the
hearing on his application for bail (Serapio v. Sandiganbayan, G.R. No. 148468, January 28, 2003).
23[] If the person arrested is judicially charged within 3 days from his detention during the suspension of
the writ, the aggrieved party is precluded from inquiring into the legality of the arrest or detention in
the petition for habeas corpus and this justifies its dismissal, as the question of the legality of the
arrest or detention should be raised in the pending criminal case, either in a motion to quash the
warrant of arrest or the information itself (Bernarte v. CA, supra.).
24
[] Habeas Corpus would not lie after the Warrant of Commitment was issued by the court on the
basis of the Information filed against the accused. ****Once a person detained is duly charged in
court, he may no longer question his detention through a petition for issuance of a writ of
habeas corpus. The remedy would be to quash the information and/or the warrant of arrest
duly issued.
[] If the offense is punishable by death, the person lawfully detained shall not be
released, discharged or bailed. If the offense is not punishable by death, he may be
recommitted to imprisonment or admitted to bail in the discretion of the court.
court of competent jurisdiction has absolved him of the offense? NO.

****Such a reservation is repugnant to the principle that the government is
one of laws and not of men. Under this principle, the moment a person is
acquitted of a criminal charge he can no longer be detained or re-arrested
for the same offense (Toyoto v. Ramos, G.R. No. L-69270, October 15,
1985).
5. When prisoner may be removed from one custody to another
a. By legal process;
b. Prisoner is delivered to an inferior officer to carry to jail;
c. By order of proper court or judge directing that he be removed from
one place to another within the Philippines for trial; or
d. In case of fire, epidemic, insurrection or other necessity or public
calamity (Sec. 18, Rule 102).
4.13.6. Habeas corpus vs. Amparo25 vs. Habeas data vs. Kalikasan
*******
HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN
Literal You have the body To protect You have the data It is a Filipino
interpret
ation word which
means “nature”
in English
25 What is the writ of amparo? How is it distinguished from the writ of habeas corpus? (2%) (2009 Bar
Question) SUGGESTED ANSWER:
*****The petition for a writ of amparo is a remedy available to any person whose right to life,
liberty and security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity. The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
The writ of amparo differs from a writ of habeas corpus in that the latter writ is availed of as a
remedy against cases of unlawful confinement or detention by which any person is deprived of his
liberty, or cases by which rightful custody of any person is withheld from another who is lawfully
entitled thereto (Sec 1, Rule 102, Rules of Court).
Descript WRIT directed to REMEDY available to REMEDY Special

ion
the person any person whose right to available to any REMEDY
detaining another, life, liberty, and security person whose right available
commanding him to is violated or threatened to privacy in life, to a natural or
produce the body with violation by an liberty or security juridical person,
of the prisoner at a unlawful act or omission is violated or entity authorized
designated time of a public official or threatened by an by law, people’s
and place, with the employee, or of a private unlawful act or organization,
day and cause of his individual or entity. The omission of a public non-
capture and writ covers extralegal official or employee, governmental
detention, to do, killings and enforced or of a private organization, or
submit to, and disappearances or individual or entity any public
receive whatsoever threats thereof. engaged in the interest group
the court or judge gathering, accredited by or
awarding the writ collecting, or storing registered with
shall consider in that of data or any government
behalf. information agency, on
regarding the behalf of
person, family, persons whose
home and constitutional
correspondence of right to a
the aggrieved party. balanced and
healthful ecology
is violated, or
threatened with
violation by an
unlawful act or
omission of a
public official or
employee, or
private
individual or
entity, involving
environmental
damage of such
magnitude as to
prejudice the
life, health or
property of
inhabitants in
two or more
cities or
provinces.
Availabil *****To all cases of *****To any person whose *****To any person
ity or
Applicab illegal confinement right to life, liberty and whose right to
ility or detention: 1. By security is violated or PRIVACY in life,
which any person is threatened with violation liberty and
deprived of his by an unlawful act or security is violated
liberty; or 2. By omission of a public or threatened with
which the rightful official or employee, or of violation by an
custody of any a private individual or unlawful act or
person is withheld entity (Sec. 1). omission of a public
from the person *****Riano said that it is official or employee,
entitled thereto more of a threatened or of a private
(Sec. 1). liberty because if there is individual or entity
*****Purpose: actual deprivation, it’s engaged in: 1.
immediate release habeas corpus. TOM says Gathering; 2.
from unlawful not exactly, as Amparo Collecting; or 3.
confinement. Does covers “violated or Storing
not preclude filing of threatened with violation”. of data or
criminal action. information
regarding the
person family, home
and correspondence
of the aggrieved
party (Sec. 1).
Office of To direct the person To direct the public To order the To order the
the
Remedy detaining another to officers involved to disclosure or protection of the
produce the body of conduct an investigation as destruction of data constitutional
the person being to the whereabouts and relating to the right right to a
detained and show legality of the detention of to life, liberty or balanced and
the cause of a missing person. security of a person. healthful ecology
detention. and restrain
further acts that
cause
environmental
damage of such
a magnitude that
prejudices the
right to life,
health or
property of
inhabitants in
two or more
cities or
provinces.
Coverag Involves the right to *****Involves the right to It protects the Constitutional
e
liberty of and life, liberty, and security of image, privacy, right to a
rightful custody by the aggrieved party and honor, information, balanced and
the aggrieved party. covers extralegal killings self-determination healthful
and enforced and freedom of ecology.
disappearances. Riano: information of a
more of the threat because person. *****It
if it’s consummated, it is includes the right to
either murder or have derogatory
kidnapping. information about
you be taken out of
the records, like at
the NBI.
Where to RTC or any judge RTC of the place where RTC where the In SC or any
file
(venue) thereof, where the the threat, act or petitioner or stations of the
person is detained; omission was committed respondent resides, CA.
CA or any member or any of its elements or that which has
thereof in instances occurred; SB or any justice jurisdiction over the
authorized by law; thereof; CA or any justice place where the
SB in aid of its thereof; SC or any justice data or
appellate thereof. information is
jurisdiction, or SC gathered, collected
or any member or stored, at the
thereof. option of the
petitioner; or with
SC, CA or SB when
the action concerns
public data files or
government offices.
Who 1. Party for whose In the following ORDER: 1. Any aggrieved A natural or
may file
a relief it is intended; 1. Any member of the party; 2. However, juridical person,
petition or 2. Any person on immediate family; 2. Any in cases of extralegal entity authorized
(petition his behalf ascendant, descendant, killings and enforced by law, people’s
er)
or collateral relative of the disappearances: a. Any organization,
aggrieved party within the member of the non-
4th civil degree of immediate family; governmental
consanguinity or affinity; 3. 2. Any ascendant, organization, or
Any concerned citizen, descendant, or any public
organization, association collateral relative of interest group
or institution the aggrieved party accredited by or
within the 4th civil registered with
degree of any government
consanguinity or agency.
affinity
Respond May or may not be Public official or employee Public official or Public official or
ent
an officer. or a private individual or employee or a employee,
entity. private individual or private
entity engaged in individual or
the gathering, entity.
collecting or storing
of data or
information
regarding the
person, family,
home and
correspondence of
the aggrieved party.
EXTEN If granted by SC, Enforceable anywhere in Enforceable Enforceable
T of
Enforcea CA or SB: the Philippines regardless anywhere in the anywhere in the
bility of enforceable anywhere of who issued the same Philippines Philippines
the writ In the Philippines; If
granted by RTC:
enforceable only
within the judicial
district
When to On any day and at any time. On any day and at any time.
file
Docket Payment is *****Petitioner is Payment is *****Petitioner

fees
required. NB: Rule exempted from payment required. NB: Rule is exempted
on indigent on indigent from payment
petitioner applies. petitioner applies.
Service Served upon the Served upon the Served upon the Served upon the
of writ;
HOW person to whom it respondent personally; or respondent respondent
served is directed (and substituted service personally; or personally; or
preserving a copy on substituted service substituted
which to make service.
return of service),
and if not found or
has not the prisoner
in his custody, to the
other (any) person
having or exercising
such custody
Person Officer by whom Respondent Respondent Respondent

who
makes the prisoner is
the imprisoned or the
return person in whose
custody the prisoner
is found
When to On the day Within 5 working days The respondent Within non-
file a
return specified in the after service of the writ, shall file a verified extendible
writ; Signed and the respondent shall file a written return period of 10
shall also be sworn verified written return together with days after the
to if the prisoner is together with supporting supporting service of writ.
not produced (Sec. affidavits; cannot be affidavits within 5
10). extended except on highly working days from
meritorious grounds (Sec. service of the writ,
9) which period may
be reasonably
extended by the
Court for
justifiable reasons.
EFFEC In case respondent fails to In case respondent
T of
failure to file a return, the court, fails to return, the
file a justice or judge shall court, justice or
return proceed to hear the judge shall proceed
petition ex parte (Sec. 12). to hear the
petition ex parte,
granting petitioner
such relief as the
petition may
warrant unless the
court in its
discretion requires
petitioner to
submit evidence
(Sec. 14).
Return If granted by the SC If issued by RTC: If issued by RTC: If issued by SC,

or CA: returnable returnable before such returnable before returnable
before the court or court; such court; before such
any member or court or CA.
before RTC or any If issued by SB or CA or If issued by SB or
judge thereof; any of their justices: CA or any of their
returnable before such justices: returnable
If granted by RTC: court or to any RTC of the before such court or
returnable before place where the threat, act to any RTC of the
such court or omission was place where the
In writ of habeas committed or any of its petitioner or
corpus in relation to elements occurred; respondent resides
custody of minors, or that which has
the writ may be If issued by SC or any of jurisdiction over the
made returnable to a its justices: returnable place where the data
Family Court or to before such court, or or information is
any regular court before SB, CA, or to any gathered, collected
within the region RTC of the place where or stored;
where the petitioner the threat, act or omission
resides or where the was committed or any of If issued by SC or
minor may be found its elements occurred any of its justices:
for hearing and returnable before
decision on the such court, or
merits (Sec. 20, A.M. before SB, CA, or
No. 03-04-04-SC). to any RTC of the
place where the
petitioner or
respondent resides
or that which has
jurisdiction over the
place where the data
or information is
gathered, collected
or stored.
General Not prohibited. Not allowed. Not allowed. Not allowed.
denial
Liability Forfeit to the Imprisonment or fine for Imprisonment or Indirect

of the
person to aggrieved party the committing contempt. fine for committing contempt.
whom the sum of P1000, and contempt.
writ is
directed if may also be
he refuses punished for
to make a
return contempt.
Hearing Date and time of Summary hearing shall be Summary hearing The hearing
hearing is specified conducted not later than shall be conducted including the
in the writ; Hearing 7 days from the date of not later than 10 preliminary
on return (Sec. 12). issuance of the writ. (Sec working days from conference shall
6); The hearing on the the date of not extend
petition shall be issuance of the beyond 60 days
summary. However, the writ (Sec 7); same as and shall be
court, justice or judge may Amparo. given the same
call for a preliminary priority as
conference to simplify petitions for
the issues and determine writs of habeas
the possibility of corpus, amparo
obtaining stipulations and habeas data.
and admissions from the
parties. The hearing shall
be from day to day until
completed and given the
same priority as petitions
for habeas corpus (Sec.
13).
INTERI 1. Unless for good 1. Temporary Protection
M reliefs
cause shown, the Order;
hearing is adjourned, 2. Inspection Order;
in which event the 3. Production Order; and
court shall make an 4. Witness Protection
order for the Order (Sec. 14).
safekeeping of the
person imprisoned
or restrained as the
nature of the case
requires; 2. The
court or judge must
be satisfied that the
person's illness is so
grave that he cannot
be produced without
any danger
(Sec. 12).
JUDGM When the court or The court shall render Same with Amparo
ENT
judge has examined judgment within ten (10) with an addition
into the cause of days from the time the that upon finality,
caption and restraint petition is submitted for the judgment shall
of the prisoner, and decision. If the allegations be enforced by the
is satisfied that he is in the petition are proven sheriff or any lawful
unlawfully by substantial evidence, officers as may be
imprisoned or the court shall grant the designated by the
restrained, he shall privilege of the writ and court, justice or
forthwith order his such reliefs as may be judge within 5
discharge from proper and appropriate; working days
confinement, but otherwise, the privilege be (Sec. 16).
such discharge shall shall denied (Sec. 18).
not be effective
until a copy of the
order has been
served on the
officer or person
detaining the
prisoner. If the
officer or person
detaining the
prisoner does not
desire to appeal, the
prisoner shall be
forthwith released
(Sec. 15).
Period of Within 48 hours Rule 45 by petition for *Same as amparo Within 15 days
appeal
from notice of the review on certiorari with (Sec 19) from the date of
judgment or final peculiar features: Appeal notice of the
order appealed from. may raise questions of adverse
fact or law or both; judgment or
Period of appeal shall be 5 denial of motion
working days from the for
date of notice of the reconsideration.
adverse judgment;
Same priority as habeas
corpus cases (Sec. 19).
Instituti This Rule shall not Same as Writ of

on of
SEPARA preclude the filing of Amparo
TE separate criminal, civil (Sec. 20).
actions or administrative actions
(Sec. 21).
EFFEC When a criminal action has Same as Writ of

T of
filing been commenced, no Amparo
CRIMI separate petition for the (Sec. 21).
NAL writ shall be filed. The
action
reliefs under the writ shall
be available by motion in
the criminal case (Sec. 2).
CONSO When a criminal action is Same as Writ of

LIDATI
ON filed subsequent to the Amparo
filing of a petition for the (Sec. 22).
writ, the latter shall be
consolidated with the
criminal action.
When a criminal action
and a separate civil action
are filed subsequent to a
petition for a writ of
amparo, the latter shall be
consolidated with the
criminal action (Sec. 23).
Prohibit None***** 1. Motion to dismiss; 2. 1. Motion to

ed
pleading Motion for extension of dismiss;
s& time to file opposition, 2. Motion for
motions affidavit, position paper extension of time
and other pleadings [In to file return;
WA, a motion for 3. Motion for
extension of time to file postponement;
the return is no longer a 4. Motion for a bill
prohibited pleading, as it of particulars;
may be granted by the 5. Counterclaim or
court on highly cross-claim;
meritorious cases]; 3. 6. Third-party
Dilatory motion for complaint;
postponement; 7. Reply; and
4. Motion for a bill of 8. Motion to declare
particulars; respondent in
5. Counterclaim or cross- default; 9.
claim; Intervention; 10.
6. Third-party complaint; Memorandum; 11.
7. Reply; 8. Motion to Motion for
declare respondent in reconsideration of
default; 9. Intervention; interlocutory orders
10. Memorandum; 11. or interim relief
Motion for orders; and
reconsideration of 12. Petition for
interlocutory orders or certiorari,
interim relief orders; and mandamus or
12. Petition for certiorari, prohibition against
mandamus or any interlocutory
prohibition against any order (Sec. 13).
interlocutory order.
Bar areas related to this table:*******

1. On prohibited pleadings: MTD.26
2. Where to file in habeas data: SC, CA or SB when the action concerns public data
26Q: Marinella is a junior officer of the Armed Forces of the Philippines who claims to have personally
witnessed the malversation of funds given by US authorities in connection with the Balikatan exercises.
Marinella alleges that as a result of her expose, there are operatives within the military who are out to kill
her. She files a. petition for the issuance of a writ of amparo against, among others, the Chief of Staff but
without alleging that the latter ordered that she be killed. Atty. Daro, counsel for the Chief of Staff, moves
for the dismissal of the Petition for failure to allege that his client issued any order to kill or harm
Marinella. Rule on Atty. Daro's motion. Explain. (3%) (2010 Bar Question) SUGGESTED ANSWER:
*****The motion to dismiss must be denied on the ground that it is a prohibited pleading under
Section 11(a) of the Rule on the Writ of Amparo. Moreover, said Rule does not require the petition
therefor to allege a complete detail of the actual or threatened violation of the victim's rights. It is
sufficient that there be an allegation of real threat against petitioner's life, liberty and/ or security (Gen.
A. Razon, Jr. v. Tagitis, G.R. No. 182498, Dec. 03, 2009).
files or government offices.27
4.13.7. Rules on Custody of Minors and Writ of Habeas Corpus in

relation to Custody of Minors (A.M. No. 03-04-04-SC)
WHO MAY FILE a petition for custody of minor

1. A verified petition for the rightful custody of a minor may be filed by any
person claiming such right. The party against whom it may be filed shall
be designated as the respondent (Sec. 2, AM No. 03-04-04-SC).
2. *****In cases involving minors, the purpose of a petition for habeas corpus
is not limited to the production of the child before the court; the main
purpose of the petition for habeas corpus is to determine who has the
RIGHTFUL CUSTODY over the child (Bagtas v. Santos, G.R. No. 166682,
November 27, 2009).
3. ****By filing a petition for declaration of nullity of marriage, the issue of
custody of the children is deemed automatically submitted pursuant to the
express provisions of Articles 4928 and 5029 of the Family Code (Yu v. Yu,
G.R. No. 164915, March 10, 2006).
Where filed
1. The petition for custody of minor is filed with the Family Court of the
27 A wants to file a Petition for Writ of Habeas Data against the AFP in connection with threats to his life
allegedly made by AFP intelligence officers. A needs copies of AFP highly classified intelligence
reports collected by Sgt. Santos who is from AFP. A can file his petition with: (2012 BAR)
a. RTCwhereAFPislocated;
b. RTCwhereSgt.Santosresides; c. Supreme Court;
d. Court of Appeals.
Aiternative Answer:
b. RTC where Sgt. Santos resides c. Supreme Court
28 [] FC, Art. 49. During the pendency of the action and in the absence of adequate provisions in a written
agreement between the spouses, the Court shall provide for the support of the spouses and the custody
and support of their common children. The Court shall give paramount consideration to the MORAL
AND MATERIAL WELFARE of said children and their CHOICE of the parent with whom they
wish to remain as provided to in Title IX. It shall also provide for appropriate visitation rights of the
other parent.
29
[] FC, Art. 50. The effects provided for by paragraphs (2), (3), (4) and (5) of Article 43 and by
Article 44 shall also apply in the proper cases to marriages which are declared ab initio or
annulled by final judgment under Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition and
distribution of the properties of the spouses, the custody and support of the common
children, and the delivery of the presumptive legitimes, unless such matters had been
adjudicated in previous judicial proceedings.
All creditors of the spouses as well as of the absolute community or the conjugal partnership shall be
notified of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated, shall be
adjudicated in accordance with the provisions of Articles 102 and 129.
province or city where

a. the petitioner resides or where
b. the minor may be found (Sec. 3, AM No. 03-04-04-SC).
2. *****The CA30 and the SC have concurrent jurisdiction with Family
courts in habeas corpus cases where the custody of minors is involved.
The provisions of RA 8369 must be read in harmony with RA 7029 and BP
129 ― that Family courts have concurrent jurisdiction with the CA and the SC
in petitions for habeas corpus where the custody of minors is at issue
(Thornton v. Thornton, G.R. No. 154598, August 16, 2004; Madriñan v.
Madriñan, G.R. No. 159374, July 12, 2007).
3. The difference is the enforceability of the writ.31
30 Q: While Marietta was in her place of work in Makati City, her estranged husband Carlo barged into her
house in Paranaque City, abducted their six-year old son, Percival, and brought the child to his hometown in
Baguio City. Despite Marietta's pleas, Carlo refused to return their child. Marietta, through counsel, filed a
petition for habeas corpus against Carlo in the Court of Appeals in Manila to compel him to produce their
son before the court and for her to regain custody. She alleged in the petition that despite her efforts, she
could no longer locate her son. In his comment, Carlo alleged that the petition was erroneously filed in the
Court of Appeals as the same should have been filed in the Family Court in Baguio City which, under
Republic Act no. 8369. has exclusive jurisdiction over the petition. Marietta replied that under Rule 102 of
the Rules of Court, as amended, the petition may be filed in the Court of Appeals and if granted, the writ of
habeas corpus shall be enforceable anywhere in the Philippines. Whose contention is correct? Explain. (5%)
(2005 Bar Question)
SUGGESTED ANSWER: Marietta's contention is correct. The Court of Appeals has concurrent
jurisdiction with the family courts and the Supreme Court in petitions for habeas corpus where the
custody of minors is at issue, notwithstanding the provision in the Family Courts Act (Republic Act No.
8369) that family courts have exclusive jurisdiction in such cases. (Thornton v. Thornton, 436 SCRA 550
[2004]). Sec. 20, par. 6 of SC AM No. 03-04-04 [2003] provides: "the petition may likewise be filed with the
Supreme Court, Court of Appeals, or with any of its members and, if so granted, the writ shall be
enforceable anywhere in the Philippines. The writ may be made returnable to a Family Court or to
any regular court within the region where the petitioner resides or where the minor may be found for
hearing and decision on the merits."
31 Q: Widow A and her two children, both girls, aged 8 and 12 years old, reside in Angeles City, Pampanga.
A leaves her two daughters in their house at night because she works in a brothel as a prostitute. Realizing
the danger to the morals of these two girls, B, the father of the deceased husband of A, files a petition for
habeas corpus against A for the custody of the girls in the Family Court in Angeles City. In said petition, B
alleges that he is entitled to the custody of the two girls because their mother is living a disgraceful life. The
court issues the writ of habeas corpus. When A learns of the petition and the writ, she brings her two
children to Cebu City. At the expense of B, the sheriff of the said Family Court goes to Cebu City and
serves the writ on A. A files her comment on the petition raising the following defenses: [Resolve the
petition in the light of the above defenses of A. (2003 Bar Question)]
a) The enforcement of the writ of habeas corpus in Cebu City is illegal: The writ of habeas corpus
issued by the Family Court in Angeles City may not be legally enforced in Cebu City, because the writ is
enforceable only within the judicial region to which the Family Court belongs, unlike the writ granted
by the Supreme Court or Court of Appeals which is enforceable anywhere in the Philippines. (Sec. 20
of Rule on Custody of Minors and Writ of Habeas. Corpus in Relation to Custody of Minors. (A.M. No. 03-
04-04-SC; see also Sec. 4 of Rule 102, Rules of Court.)
b) B has no personality to institute the petition: B, the father of the deceased husband of A, has
the personality to institute the petition for habeas corpus of the two minor girls, because the
grandparent has the right of custody as against the mother A who is a prostitute. (Sections 2 and 13,
Id.)
Contents of the verified petition

1. The personal circumstances of the petitioner and of the respondent.
2. The name, age and present whereabouts of the minor and his or her
relationship to the petitioner and the respondent.
3. The material operative facts constituting deprivation of custody.
4. Such other matters which are relevant to the custody of the minor.
5. Certificate of Non-Forum Shopping SIGNED PERSONALLY by the
petitioner (Sec. 4, AM No. 03-04-04-SC).
[] In Sompong v. CA, et al. (G.R. No. 11876, January 31, 1996), the
Court laid down the following REQUISITES in petitions for habeas corpus
involving minors:******
a. That the petitioner has the right of custody over the minor;
b. That the rightful custody of the minor is being withheld from the
petitioner by the respondent; and
c. That it is to the BEST INTEREST of the minor concerned to be in
the custody of petitioner and not that of the respondent.
Provisional order awarding custody

******As far as practicable, the following ORDER OF PREFERENCE shall
be observed in the award of custody:
1. Both parents jointly;32
2. Either parent, taking into account all relevant considerations, especially the
choice of the minor over 7 years of age and of sufficient discernment,
unless the parent chosen is unfit or disqualified;
3. The grandparent or if there are several grandparents, the grandparent
chosen by the minor over 7 years of age and of sufficient discernment, unless
32[] Q: In a petition for habeas corpus that was filed by Loran against his estranged wife, as well as
against his parents-in-law whom he alleged were unlawfully restraining him from having custody of his
child, the trial court issued an order directing the aforesaid persons to appear in court and produce the child
in question and to show cause why the said child should not be discharged from restraint. Does the trial
court's Order run counter to Art. 213 of the Family Code?
NO. ****The assailed order of the trial court did not grant custody of the minor to any of the
parties but was merely a procedural directive addressed to the petitioners for them to produce the minor
in court and explain why they are restraining his liberty. Moreover, Art. 213 of the Family Code deals with
the adjudication of custody and serves as a guideline for the proper award of-custody by the court.
While the petitioners can raise it as a counter argument in the custody suit, it may not however be invoked
by them to prevent the father from seeing the child. ****Habeas corpus may be resorted to in cases
where rightful custody is withheld from a person entitled thereto. Under Art. 211 of the Family Code,
both parents in this case have JOINT PARENTAL AUTHORITY over their child and consequently
JOINT CUSTODY over him. Further, although the couple is separated de facto, the issue of
custody has yet to be adjudicated by the court. ******In the absence of a judicial grant of custody,
both parents are still entitled to the custody of their child (Salientes, et al. v. Abanilla, et al., G.R. No.
162734, August 29, 2006).
the grandparent chosen is unfit or disqualified;

4. The eldest brother or sister over 21 years of age unless he or she is unfit or
disqualified;
5. The actual custodian of the minor over 21 years of age unless the former is
unfit or disqualified; or
6. Any other person or institution the court may deem suitable to provide
proper care and guidance for the minor (Sec. 13, AM No. 03-04-04-SC).
[] NB: Maternal preference rule.33
SOME TECHNICAL MATTERS

1. *****Motion to dismiss is not allowed except on the ground of lack
jurisdiction over the subject matter or the parties.
2. Respondent must file a verified answer within 5 days from the service of
summons and copy of the petition.
3. Pre-trial is mandatory (Sec. 9, AM No. 03-04-04-SC).
4. Temporary VISITATION RIGHTS: The court shall provide in its order
awarding provisional custody appropriate visitation rights to the NON-
CUSTODIAL PARENT or parents unless the court finds said parent or
parents unfit or disqualified (Sec. 15, AM No. 03-04-04-SC).
5. Issuance of HOLD DEPARTURE ORDER: The minor child cannot be
brought out of the country without leave from court while the petition is
pending. The court, motu proprio or upon application under oath, may
issue ex parte a hold departure order, addressed to the Bureau of Immigration and
Deportation, directing it not to allow the departure of the minor from the
Philippines without the permission of the court (Sec. 16, AM No. 03-04-04-
SC).
6. In case of LEGAL SEPARATION of the parents: The custody of the
minor children shall be awarded to the innocent spouse, unless otherwise
33
[] Q: In a petition for habeas corpus which he filed before the CA, Joey sought custody of his
minor son from his former live-in partner, Loreta. Joey alleged that the child's mother was
abroad most of the time and thus, he should be given joint custody over their son. The CA
however denied the petition, and on the basis of Art. 213, par (2) of the Family Code, awarded
custody of the child in favor of the mother. Was the CA correct in denying Joey’s petition for
habeas corpus for the custody of his minor son?
YES. ******Under Art. 176 of the FC, parental authority over an illegitimate child is
vested SOLELY in the mother, and this is true notwithstanding that the child has been
recognized by the father as his offspring. At most, such recognition by the father would be a
ground for ordering the latter to GIVE SUPPORT to, but NOT CUSTODY of, the child
(David v. CA, 250 SCRA 82). Custody over the minor in this case was therefore awarded correctly
to the mother, and this is all the more so in view of Art. 213 of the Family Code which lays down
the MATERNAL PREFERENCE RULE. There is also no showing that Joey was able to
show proof of any COMPELLING REASON to wrest from the mother parental authority over
their minor child.
directed by the court in the interest of the minor children. But when the
husband and wife are living separately and apart from each other, WITHOUT
DECREE of the court, the court shall award the care, custody and control
of each child as will be for his BEST INTEREST, permitting the child to
choose which parent he prefers to live with if he is over 7 years of age unless
the parent so chosen be unfit to take charge of the child by reason of moral depravity,
habitual drunkenness or poverty (Sy v. CA, G.R. No. 124518, December 27,
2007). NB: The question of who between the spouses should have custody
of their minor child could also be determined in the petition for
declaration of nullity of their marriage which is already pending in the
RTC.34
POSSIBLE SCENARIOS ON THE SECOND FORM OF HABEAS

CORPUS*****
1. Salvana vs. Gaela 1931. A child ran away from home. She did not want to
return to her parents. SC said that even if the child left voluntarily, as long as
she is still under Parental Authority, it’s considered deprivation of rightful
custody.
2. Salientes vs. Abanilla 29 Aug 2006: Newly-wed couple stayed in the house of
the parents of the wife. Mother in law pestered the couple. Husband could not
take it anymore, but the wife decided to stay behind with the child (3 y/o).
Now, the wife and her parents do not want the dad to see the child. PWHC
applies because Art. 21335 cannot be used against Art. 21136 FC. The latter
speaks about joint parental authority, hence, custody.
3. Bagtas vs. Santos 2007. Minor got pregnant. Left the child to her friends
34
[] Bar 2007: Husband H files a petition for declaration of nullity of marriage before the RTC
of Pasig City. Wife W files a petition for habeas corpus before the RTC of Pasay City, praying
for custody over their minor child. H files a motion to dismiss the wife’s petition on the ground of
the pendency of the other case. Rule.
A: *****The motion to dismiss the petition for habeas corpus should be granted to
avoid multiplicity of suits. The question of who between the spouses should have custody of
their minor child could also be determined in the petition for declaration of nullity of their
marriage which is already pending in the RTC of Pasig City. In other words, the petition filed in
Pasay City, praying for custody of the minor child is UNNECESSARY and violates only the
cardinal rule of procedure against multiplicity of suits. ****Hence, the latter suit may be
abated by a motion to dismiss on the ground of LITIS PENDENTIA (Yu v. Yu, G.R. No.
164915, March 10, 2006).
35[] Art. 213. In case of separation of the parents, parental authority shall be exercised by the parent
designated by the Court. The Court shall take into account all relevant considerations, especially the
choice of the child over seven years of age, unless the parent chosen is unfit.
36
[] Art. 211. The father and the mother shall jointly exercise parental authority over the
persons of their common children. In case of disagreement, the father's decision shall prevail,
unless there is a judicial order to the contrary.
Children shall always observe respect and reverence towards their parents and are obliged
to obey them as long as the children are under parental authority.
with a document, “kayo na ang mag-alaga”. Can the grandparents of the child
file a PWHC? Yes, because they have substitute parental authority, over that
of the friends of the mom.
——————————————————————————————
4.2. Writ of Amparo (A.M. No. 07-9-12-SC)
ON THE WRIT OF AMPARO

1. It is a remedy available to any person whose ******right to LIFE,
LIBERTY AND SECURITY is violated or THREATENED with violation
by an unlawful act or omission of a public official or employee, or of a
PRIVATE individual or entity. The writ shall cover EXTRALEGAL
KILLINGS and ENFORCED DISAPPEARANCES or THREATS
thereof (Sec. 1, A.M. No. 07-9-12-SC). NB: *****It does not include violation
of freedom of religion.
2. The Rule on the Writ of Amparo is now a procedural law anchored, not
only on the constitutional rights to life, liberty and security, but on a
concrete statutory definition as well of what an ‘enforced or involuntary
disappearance’ is. Therefore, A.M. No. 07-9-12-SC’s reference to enforced
disappearances should be construed to mean the enforced or involuntary
disappearance of persons contemplated in Section 3(g) of RA No. 9851,
otherwise known as “Philippine Act on Crimes against International
Humanitarian Law, Genocide, and Other Crimes against Humanity.”
(Navia et al v. Pardico, G.R. No. 184467, June 19, 2012 citing Rubrico v.
Macapagal Arroyo)
Nature of writ of Amparo

1. An amparo proceeding is NOT CRIMINAL in nature. While the principal
objective of its proceedings is the initial determination of whether an
enforced disappearance, extralegal killing or threats thereof had transpired—
the writ does not fix liability for such disappearance, killing or threats,
whether that may be criminal, civil or administrative under the applicable substantive law
(Roxas v. Macapagal Arroyo, G.R. No. 189155, September 7, 2010).
a. ******Amparo is neither a criminal, nor a civil nor an administrative
proceeding. But on 19 Feb 2013 [De Lima vs. Gatdula], the Court noted that
evidence required is only SUBSTANTIAL EVIDENCE, not proof
beyond reasonable doubt.
b. *****It also ruled that Amparo is a Special Proceeding. By analogy,
Habeas Data is also a Special Proceeding. Hence, the end result is not a
finding of civil/criminal/administrative liability, *****but an ORDER
from the Court for him to REFRAIN from the performance of certain acts. It
is like an INJUNCTION (prohibitory: don’t arrest him/mandatory: free him

if arrested), but don’t use this analogy in the bar. It pinpoints the person who
has threatened the life, security, liberty of another.
2. It partakes of the nature of a PREROGATIVE WRIT that does not
determine guilt nor pinpoint criminal culpability for the disappearance;
rather, it determines RESPONSIBILITY, or at least ACCOUNTABILITY,
for the enforced disappearance for PURPOSES OF IMPOSING THE
APPROPRIATE REMEDIES to address the disappearance (Razon, Jr. v.
Tagitis G.R. No. 182498, December 3, 2009). [] ******The concept of
responsibility is not the same as accountability under an amparo
proceeding. One may be accountable for it, although he was not
responsible for the extralegal killing or enforced disappearance (TOM).
a. Responsibility refers to the EXTENT the actors have been
established by substantial evidence to have participated in whatever way,
by action or omission, in an enforced disappearance while
b. Accountability refers to the measure of REMEDIES that should
be addressed to those (i) who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of
responsibility defined above; or (ii) who are imputed with knowledge
relating to the enforced disappearance and who carry the burden of disclosure;
or (iii) those who carry, but have failed to discharge, the burden of
EXTRAORDINARY DILIGENCE in the investigation of the enforced
disappearance (Razon, Jr. v. Tagitis G.R. No. 182498, December 3, 2009).
c. ******The concept of command responsibility is not applicable
in proceedings for a writ of amparo.37 The application of command
responsibility presupposes an imputation of individual liability. It is more
aptly invoked in a full-blown criminal or administrative case rather than in
a summary amparo proceeding (Roxas v. Macapagal Arroyo, G.R. No. 189155,
September 7, 2010).38 ****It must be clarified, however, that the
37If command responsibility were to be invoked and applied to these proceedings, it should, at most, be
only to determine the AUTHOR who, at the first instance, is accountable for, and has the duty to
address, the disappearance and harassments complained of, so as to enable the Court to devise
remedial measures that may be appropriate under the premises to protect rights covered by the writ of
amparo. Thus, the doctrine of command responsibility does not determine criminal, civil or
administrative liabilities but is to be applied merely to ascertain responsibility and accountability of
the persons involved (Rodriguez v. Macapagal Arroyo, G.R. No. 191805, November 15, 2011).
38
DOCTRINE OF COMMAND RESPONSIBILITY in Amparo Proceedings
1. If command responsibility were to be invoked and applied to these proceedings, it should, at
most, be only to determine the AUTHOR who, at the first instance, is accountable for, and
has the duty to address, the disappearances or harassments complained of, so as to enable the
Court to devise remedial measure that may be appropriate under the premises to protect rights
covered by the writ of amparo (Rubrico v. Macapgal-Arroyo, G.R. No. 183871, February 18, 2010).
2. ****The doctrine of command responsibility may be used to determine whether
inapplicability of the doctrine of command responsibility in an amparo

proceeding does not, by any measure, preclude impleading military or
police commanders on the ground that the complained acts in the petition
were committed with their direct or indirect acquiescence. They may be
impleaded—not actually on the basis of command responsibility—but
rather on the ground of their responsibility, or at least accountability
(Roxas v. Macapagal Arroyo, G.R. No. 189155, September 7, 2010). NB:
*****The same rule applies with respect to habeas data.
3. The remedy provides RAPID JUDICIAL RELIEF as it partakes of a
SUMMARY proceeding that requires only SUBSTANTIAL EVIDENCE
to make the appropriate reliefs available to the petitioner; it is ****not an
action to determine criminal guilt requiring proof beyond reasonable doubt, or
liability for damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and
exhaustive proceedings (Deliberations of the Committee on the Revision of
the Rules of Court, August 10, 2007, August 24, 2007, August 31, 2007 and
September 20, 2008).
Right to life, liberty and security

1. The right to life guarantees essentially the right to be alive – upon
which the enjoyment of all other rights is preconditioned – the right to
security of person is a guarantee of the secure quality of his life, viz: The
life to which each person has a right is not a life lived in fear that his person
and property may be unreasonably violated by a powerful ruler. Rather, it
is a life lived with the assurance that the government he established and
consented to, will protect the security of his person and property.
2. The right to liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include “the right to EXIST and the right to be FREE FROM
ARBITRARY RESTRAINT OR SERVITUDE. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy the facilities with which he
has been endowed by his Creator, subject only to such restraint as are
necessary for the common welfare.
3. The RIGHT TO SECURITY includes the following:
a. FREEDOM FROM FEAR – is the right and any threat to the
rights to life, liberty or security is the actionable wrong. Fear is a state of
mind, a reaction; threat is a stimulus, a cause of action. In the amparo context,
it is more correct to say that the “right to security” is actually the “freedom
respondents are accountable for and have the duty to address the abduction of petitioner in
order to enable the courts to devise remedial measures to protect his rights (Rodriguez v. Arroyo,
G.R. Nos. 191805 and 193160, November 15, 2011).
from threat.” Viewed in this light, the “threatened with violation” Clause in
the latter part of Section 1 of the Amparo Rule is a form of violation of the
right to security mentioned in the earlier part of the provision.
b. GUARANTEE OF BODILY AND PSYCHOLOGICAL
INTEGRITY OR SECURITY – Physical injuries inflicted in the context of
extralegal killings and enforced disappearances constitute more than a search
or invasion of the body. It may constitute dismemberment, physical
disabilities, and painful physical intrusion. As the degree of physical injury
increases, the danger to life itself escalates. Notably, in criminal law, physical
injuries constitute a crime against persons because they are an affront to
the bodily integrity or security of a person.
c. GUARANTEE OF PROTECTION OF ONE’S RIGHTS BY
THE GOVERNMENT – the right to security of person in this third sense is
a corollary of the policy that the State “guarantees full respect for human
rights” under Article II, Section 11 of the 1987 Constitution. As the
government is the chief guarantor of order and security, the Constitutional
guarantee of the rights to life, liberty and security of person is rendered
ineffective if government does not afford protection to these rights
especially when they are under threat. Protection includes conducting
effective investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or
threats thereof) and/or their families, and bringing offenders to the bar of
justice (Reyes v. CA, G.R. No. 182161, December 3, 2009).
4.14.1. Coverage
1. Extrajudicial/extralegal killings
2. Enforced disappearances
******The writ of amparo, in its present form, is confined only to these
two instances of “extralegal killings” and “enforced disappearances”.
EXTRALEGAL KILLINGS
1. These are killings committed WITHOUT DUE PROCESs of law, legal
SAFEGUARDS or judicial PROCEEDINGS (Secretary of National Defense v.
Manalo, G.R. No. 180906, October 7, 2008).
ENFORCED DISAPPEARANCE
1. The arrest, detention, or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a political
organization followed by a refusal to acknowledge that deprivation of
freedom or to give information on the fate or whereabouts of those persons,
with the intention of removing from the protection of the law for a
prolonged period of time (Section 3(g), RA No. 9851).

2. ******The elements of enforced disappearance are: (AA-RR)
a. That there be an ARREST, detention, abduction or any form of
deprivation of liberty;
b. That it be carried out by, or with the AUTHORIZATION,
support or acquiescence of, the State or a political organization;
c. That it be followed by the State or political organization’s REFUSAL
to acknowledge or give information on the fate or whereabouts of the
person subject of the amparo petition; and,
d. That the intention for such refusal is to REMOVE the subject
person from the protection of the law for a prolonged period of
time (Navia et al v. Pardico, G.R. No. 184467, June 19, 2012).
STATE PARTICIPATION
1. State participation is an INDISPENSABLE element for the issuance of a
writ of amparo. *****Proof of disappearance alone is not enough. It is
likewise essential to establish that such disappearance was carried out with
the direct or indirect authorization, support or acquiescence of the
government.
2. ******While the writ may lie if the person sought to be held accountable or
responsible in an amparo petition is a private individual or entity, still,
government involvement in the disappearance remains an indispensable
element.39 ****This hallmark of State participation differentiates an
39Q: The residents of Mt. Ahohoy, headed by Masigasig, formed a nongovernmental organization -
Alyansa Laban sa Minahan sa Ahohoy (ALMA) to protest the mining operations of Oro Negro Mining in
the mountain. ALMA members picketed daily at the entrance of the mining site blocking the ingress
and egress of trucks and equipment of Oro Negro, hampering its operations. Masigasig had an
altercation with Mapusok arising from the complaint of the mining engineer of Oro Negro that one
of their trucks was destroyed by ALMA members. Mapusok is the leader of the Association of Peace
Keepers of Ahohoy (APKA), a civilian volunteer organization serving as auxiliary force of the local
police to maintain peace and order in the area. Subsequently, Masigasig disappeared. Mayumi, the wife
of Masigasig, and the members of ALMA searched for Masigasig, but all their efforts proved futile.
Mapagmatyag, a member of ALMA, learned from Maingay, a member of APKA, during their binge
drinking that Masigasig was abducted by other members of APKA, on order of Mapusok. Mayumi
and ALMA sought the assistance of the local police to search for Masigasig, but they refused to extend their
cooperation. Immediately, Mayumi filed with the RTC, a petition for the issuance of the writ of
amparo against Mapusok and APKA. ALMA also filed a petition for the issuance of the writ of amparo
with the Court of Appeals against Mapusok and APKA.
a. *****Respondents Mapusok and APKA, in their Return filed with the RTC, raised among their
defenses that they are not agents of the State; hence, cannot be impleaded as respondents in an amparo
petition. (2015). Is their defense tenable? A: NO. The defense is not tenable. The writ of amparo is a
remedy available to any person whose right to life, liberty and security has been violated or is
threatened with violation by an unlawful act or omission of a public officer or employee or of a private
individual or entity. The writ covers extra-legal killings, enforced disappearances or threats thereof
(Sec. 1, The Rule on the Writ of Amparo, A.M. No. 07-9-12-SC). ******Moreover, the rules do not require
enforced disappearance case from an ordinary case of a missing person

(Navia et al v. Pardico, G.R. No. 184467, June 19, 2012)
Writ NOT available for protection of property right

1. *****A writ of amparo cannot be issued when the protection being asked for
involves a property right, like when it’s an unlawful detainer case. The writ of
amparo was originally conceived as a response to the extraordinary rise in
the number of killings and enforced disappearances, and to the perceived
lack of available and effective remedies to address these extraordinary
concerns. It is intended to address violations of or threats to the rights to
life, liberty or security, as an EXTRAORDINARY AND
INDEPENDENT REMEDY beyond those available under the prevailing
Rules, or as a remedy supplemental to these Rules. What it is not, is a writ to
protect concerns that are PURELY PROPERTY OR COMMERCIAL
(Tapuz v. Del Rosario, G.R. No. 182484, June 17, 2008).
*****The rule is the same with respect to habeas data.
2. *****The threatened demolition of a dwelling by virtue of a final
judgment of the court is not included among the enumeration of rights for
which the remedy of a writ of amparo is made available. Their claim to
dwelling, assuming they still have any despite the final and executory
judgment adverse to them, does not constitute right to life, liberty and
security. There is, therefore, no legal basis for the issuance of the writ of
amparo (Canlas v. Napico Homeowners Association I-XIII, Inc., G.R. No.
182795, June 5, 2008).
Writ NOT available in a labor dispute

1. The writ will not also be issued in a labor dispute. Employment
constitutes a property right under the context of the due process clause of
the Constitution and does not constitute an unlawful violation of the right
to life, liberty, or security (Meralco v Lim, G.R. No. 184769 October 5 2010).
that the respondents should be agents of the State in order to be impleaded as respondents in an
amparo petition (Secretary of National Defense v. Manalo, G.R. No. 180906, October 7, 2008).
b. Respondents Mapusok and APKA, in their Return filed with the Court of Appeals, raised as their
defense that the petition should be dismissed on the ground that ALMA cannot file the petition because
of the earlier petition filed by Mayumi with the RTC. Are respondents correct in raising their defense?
A: YES. The respondents are correct in raising the defense. Under section 2(c) of the Rules on the Writ of
Amparo, *****the filing of a petition by Mayumi who is an immediate member of the family of the
aggrieved party already suspends the right of all other authorized parties to file similar petitions.
Hence, ALMA cannot file the petition because of earlier petition by Mayumi with the RTC.
c. Mayumi later filed separate criminal and civil actions against Mapusok. How will the cases
affect the amparo petition she earlier filed? A: *****When a criminal action and separate civil action are
filed subsequent to a petition for a writ of amparo, the latter shall be consolidated with the criminal
action. After consolidation, the procedure under Rules shall continue to apply to the disposition of
the reliefs in the petition (Sec. 1, Id.).
NB: *****The rule is the same with respect to habeas data.

2. This one is on habeas data, but the same rule applies: Castillo v. Cruz
underscores the emphasis laid down in Tapuz v. del Rosario that the writs of
amparo and habeas data will NOT issue to protect purely property or
commercial concerns nor when the grounds invoked in support of the
petitions therefor are vague or doubtful. Employment constitutes a
property right under the context of the due process clause of the
Constitution. It is evident that respondent’s reservations on the real reasons
for her transfer - a legitimate concern respecting the terms and conditions of
one’s employment - are what prompted her to adopt the extraordinary
remedy of habeas data. ****Jurisdiction over such concerns is inarguably
lodged by law with the NLRC and the Labor Arbiters.
In another vein, there is no showing from the facts presented that
petitioners committed any unjustifiable or unlawful violation of respondent’s
right to privacy vis-a-vis the right to life, liberty or security. To argue that
petitioners’ refusal to disclose the contents of reports allegedly received
on the threats to respondent’s safety amounts to a violation of her right to
privacy is at best speculative. Respondent in fact trivializes these threats
and accusations from unknown individuals in her earlier-quoted portion of
her July 10, 2008 letter as "highly suspicious, doubtful or are just MERE
JOKES if they existed at all." And she even suspects that her transfer to
another place of work "betray[s] the real intent of management]" and
could be a "punitive move." Her posture unwittingly concedes that the issue is
labor-related (Manila Electric Company vs. Lim, G.R. No. 184769, October 5,
2010).
Inclusion of name in the Order of Battle NOT sufficient

[] *******The mere inclusion of a name of a person in the military’s order of
battle is not sufficient reason for the issuance of the writ of amparo. It is
true that the writ covers even THREATENED violations against a person’s
right to life, liberty or security. Further, threat and intimidation that vitiate
the free will – although not involving invasion of bodily integrity –
nevertheless constitute a violation of the right to security in the sense of
“freedom from threat”. It must be stressed, however, that such “threat”
must find RATIONAL BASIS on the surrounding circumstances of the
case. MERE INCLUSION in the military’s order of battle which is not
supported by independent and credible evidence stands on nebulous
grounds. The liberality accorded to amparo cases does not mean that a
claimant is dispensed with the ONUS of proving his case. (Saez v.
Macapagal Arroyo, G.R. No. 183533, September 25, 2012).
*****The rule is the same with respect to habeas data.
4.14.2. Distinguish from habeas corpus and habeas data

*See table, supra.
4.14.3. Differences between amparo and search warrant

1. A SEARCH WARRANT is a court order issued by a judge or magistrate
judge that authorizes the law enforcement officers to conduct a search of a
person or location for evidence of a crime and to confiscate evidence if it is
found. This serves as a protection of the people from the
UNREASONABLE INTRUSION of the government, while a WRIT OF
AMPARO is broader in scope as it protects the constitutional rights to
LIFE, LIBERTY AND SECURITY.
2. ****The production order under the Amparo Rule pertains to a civil
procedure that cannot be identified or confused with unreasonable
searches prohibited by the Constitution. It should not be confused with a
search warrant for law enforcement under Article III, Section 2 of the 1987
Constitution because it is likened to the production of documents or things
under Section 1, Rule 27 of the Rules of Civil Procedure which provides:
“Section 1. Motion for production or inspection order. Upon motion of
any party showing good cause therefor, the court in which an action is pending
may order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any designated
documents, papers, books of accounts, letters, photographs, objects or
tangible things, NOT PRIVILEGED, which constitute or contain evidence
material to any matter involved in the action and which are in his possession,
custody or control”(The Secretary of National Defense vs. Manalo, G.R. No.
180906, October 7, 2008)
4.14.4. Who may file

1. ANY AGGRIEVED PARTY may file the petition.
2. It may also be filed by ANY QUALIFIED person or ENTITY in the
following order:*****
a. Any member of the immediate family, namely: the spouse, children
and parents of the aggrieved party;
b. Any ascendant, descendant or collateral relative of the aggrieved party
within the fourth civil degree of consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
c. Any concerned citizen, ORGANIZATION, association or
institution, if there is no known member of the immediate family or relative
of the aggrieved party (Sec. 2, A.M. No. 07-9-12-SC).
3. ****The filing of a petition by the aggrieved party suspends the right of all
other authorized parties to file similar petitions. Likewise, the filing of the
petition by an authorized party on behalf of the aggrieved party suspends the
right of all others, observing the order established herein (Sec. 2, Ibid.).
*Reason: To prevent the indiscriminate and groundless filing of
petitions for amparo which may even prejudice the right to life, liberty or
security of the aggrieved party.
Where to file
1. Regional Trial Court where the threat, act or omission was committed
or any of its elements occurred;
2. With the Sandiganbayan, Court of Appeals, the Supreme Court or any
justice of such court.
3. *****The writ shall be ENFORCEABLE ANYWHERE in the
Philippines.
The Rule allowing the filing of the petition before the RTC does not
require that the RTC have jurisdiction over the offense complained of
jurisdiction can only be conferred by Congress. The rule merely establishes a
procedure to enforce the right to life, liberty or security of a person which
requires the filing of the petition before the RTC of the place where the threat,
act or omission was committed or any of its elements.
****The intent is to prevent the filing of the petition in some far-
flung area to harass the respondent. Moreover, ****allowing the amparo
petition to be filed in any RTC may prejudice the effective dispensation of
justice, as in most cases, the witnesses and the evidence are located within
the jurisdiction of the RTC where the act or omission was committed
(Annotation on the Writ of Amparo, A.M. NO. 07-9-12-SC).
Contents of the petition (AMPARO)*****
1. Personal circumstances of the petitioner and of respondent responsible
for the threat, act or omission;
2. Violated or threatened right to life, liberty or security of the party
aggrieved. Stating in detail the circumstances;
3. Specify the names, personal circumstances of the investigating
authority or individuals, as well as the manner and conduct of
investigation;
4. Actions and recourses taken by the petitioner to determine the
whereabouts of aggrieved party and identity of the person responsible for the
threat, act or omission;
5. The relief prayed for; and
6. A general prayer for other just and equitable reliefs may be included
(Sec. 5, A.M. No. 07-9-12-SC).
Sufficiency of the petition in form and substance

1. The pleader must state the ultimate facts constituting the cause of action,
omitting the evidentiary details. However, in an amparo petition, this
requirement must be read in light of the nature and purpose of the
proceeding, which addresses a SITUATION OF UNCERTAINTY; the
petitioner may not be able to describe with certainty how the victim
exactly disappeared, or who actually acted to kidnap, abduct or arrest him
or her, or where the victim is detained, because these information may
purposely be hidden or covered up by those who caused the disappearance.
In this type of situation, to require the level of specificity, detail and
precision is to make the Rule a token gesture of judicial concern for
violations of the constitutional rights to life, liberty and security.
2. ****The TEST in reading the petition should be to determine whether it
contains the details available to the petitioner under the circumstances,
while presenting a cause of action showing a violation of the victim’s
rights to life, liberty and security through State or party action (Razon, Jr. v.
Tagitis G.R. No. 182498, December 3, 2009).
4.14.5. Contents of return

*Within 5 days after service of the writ [The period to file a return cannot be
extended except on highly meritorious grounds (Sec. 9)], the respondent shall
file a verified written return together with supporting affidavits which shall,
among other things, contain the following:
1. The lawful defenses to show that the respondent did not violate or threaten
with violation the right to life, liberty and security of the aggrieved party,
through any act or omission;
2. The steps or actions taken by the respondent to determine the fate or
whereabouts of the aggrieved party and the person or persons responsible for
the threat, act or omission;
3. All relevant information in the possession of the respondent pertaining to
the threat, act or omission against the aggrieved party; and
4. If the respondent is a public official or employee, the return shall further
state the actions that have been or will still be taken:
a. To verify the identity of the aggrieved party;
b. To recover and preserve evidence related to the death or
disappearance of the person identified in the petition which may aid in the
prosecution of the person or persons responsible;
c. To identify witnesses and obtain statements from them concerning
the death or disappearance;
d. To determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may have brought about
the death or disappearance;

e. To identify and apprehend the person or persons involved in the
death or disappearance; and
f. To bring the suspected offenders before a competent court.
5. Other matters relevant to the investigation, its resolution and the
prosecution of the case (Sec. 9, A.M. No. 07-9-12-SC as amended).
Where returnable; enforceable

1. When issued by the RTC or a judge thereof, the writ is returnable before
such court or judge;
2. When issued by the Sandiganbayan. Court of Appeals or any of their
justices, it may be returnable to such court or any justice thereof, ****or to
any RTC where the threat, act or omission was committed or any of its
elements occurred;
3. When issued by the Supreme Court or any of its justices, it may be
returnable to such Court or any justice thereof, ****or before the
Sandiganbayan or the Court of Appeals or any of their justices, or to any
RTC in the place where the threat, act or omission was committed or any of
its elements took place (Sec. 3).
4.14.6. Effects of failure to file return

1. The court, justice or judge shall proceed to hear the petition ex parte. The
****hearing should not be delayed by the failure of the respondent to file a
return, otherwise the right to life, liberty and security of a person would be
easily frustrated (Sec. 12, Ibid.).
2. The failure to file a return cannot be extended except on highly
meritorious grounds. *****Thus, a motion for extension of time to file a
return upon showing of a highly meritorious ground is no longer a
prohibited pleading.
4.14.7. Omnibus WAIVER rule

1.*****The OMNIBUS WAIVER Rule states that all defenses not raised in
the RETURN (answer) are DEEMED WAIVED (Sec. 10, Ibid.). It is
different from the OMNIBUS MOTION Rule which states that defenses
not raised in a MOTION to Dismiss are deemed waived.
2. A motion to dismiss is a prohibited pleading in an application for a writ
of amparo. The filing of a motion to dismiss *****even on the ground of
lack of jurisdiction over the subject matter and the parties is proscribed to
avoid undue delay. The grounds of a motion to dismiss should be
INCLUDED IN THE RETURN and resolved by the court, using its
reasonable discretion as to the time and merit of the motion (Sec. 11, Ibid.).
4.14.8. Procedure for hearing

1. The nature of the hearing on the petition is SUMMARY. However, the
court, justice or judge may call for a PRELIMINARY CONFERENCE to
a. simplify the issues and
b. determine the possibility of obtaining stipulations and
admissions from the parties (Sec. 13, Ibid.).
2. The HEARING shall be from day to day until completed and given the
same priority as petitions for habeas corpus (Sec. 13, Ibid.).
3. If the petitioner fails to appear due to valid cause such as threats on his
life, the ****court shall not dismiss the petition, but shall archive it, if upon
its determination it cannot proceed for a valid cause. A periodic review of the
archived cases shall be made by the amparo court that shall, motu proprio or
upon motion by any party, ****order their REVIVAL when ready for
further proceedings. (Sec. 20, Ibid.).
4. The petition shall be DISMISSED WITH PREJUDICE upon failure to
prosecute the case after the lapse of 2 years from notice to the petitioner of
the order archiving the case (Sec. 20).
5. Due to the EXTRAORDINARY NATURE if the writ, which protects
the MOTHER OF ALL RIGHTS – the RIGHT TO LIFE – *****the
petition may be filed on any day, including Saturdays, Sundays and
holidays; and at any time from morning until evening (Annotation to the
Writ of Amparo).
Issuance of the Writ

1. Upon the filing of the petition, the court, justice or judge shall
immediately order the issuance if the writ if on its face it ought to issue. The
writ shall be served IMMEDIATELY.
2. The writ should set the date and time for a summary hearing of the
petition which shall not be later than seven (7) days from the date if its
issuance (Sec. 13).
4.14.9. Institution of separate action

1. A separate action may be filed after filing a petition for a writ of amparo.
*****It does NOT PRECLUDE the filing of a separate criminal, civil or
administrative action (Sec. 21, Ibid.). ****However, if the evidence so
warrants, the amparo court may refer the case to the Department of Justice
for criminal prosecution (Annotation on the Writ of Amparo, A.M. NO. 07-
9-12-SC).40
2. An independent action for amparo is improper once criminal
proceedings have been commenced. Validity of the arrest or the
proceedings conducted thereafter is a defense that may be set up by
respondents during trial and not before a petition for writ of amparo. The
reliefs afforded by the writs may, however, be made available to the aggrieved
party by motion in the criminal proceedings (Castillo v. Cruz G.R. No.
182165, November 25, 2009). NB: ****The rule is the same with respect to
habeas data.
4.14.10. Effect of filing of a criminal action

*When a criminal action has been commenced, no separate petition for the
writ shall be filed. The reliefs under the writ shall be available by motion in
the criminal case. The procedure under the Rule on the Writ of Amparo shall
govern the disposition of reliefs available under the writ (Sec. 22).
4.14.11. Consolidation
1. When a criminal action is filed subsequent to the filing of a petition for the
writ, the latter shall be *****consolidated with the criminal action.41
2. When a criminal action and a separate civil action are filed subsequent
to a petition for a writ of amparo, the latter shall be consolidated with the
criminal action. After consolidation, the procedure under this Rule shall
continue to apply to the disposition of the reliefs in the petition (Sec. 23).
40
[] Q: Fr. Reyes was arrested and charged with rebellion. Consequently, the DOJ Secretary
issued Hold Departure Order (HDO) No. 45 ordering the Commissioner of Immigration to
include in the hold departure list the name of Fr. Reyes. The RTC dismissed the charge but
the HDO No. 45 still subsisted. Thus, Fr. Reyes filed a petition for writ of amparo to the SC
claiming that the continued restraint on his right to travel is illegal. Should the petition be granted?
NO. *****The right to travel refers to the right to move from one place to another. As
stated in Marcos v. Sandiganbayan, G.R. Nos. 115132-34, Aug. 9, 1995, a person’s right to travel is
subject to the usual constraints imposed by the very necessity of safeguarding the system of
justice. The restriction on Fr. Reyes’ right to travel as a consequence of the pendency of the
criminal case filed against him was NOT UNLAWFUL. Fr. Reyes has failed to establish that
his right to travel was impaired in the manner and to the extent that it amounted to a serious
violation of his right to life, liberty and security. *****Under Sec. 22, A.M. No. 07-9-12-SC (effect
of filing of criminal action), Fr. Reyes should have filed with the RTC-Makati, where the
information for rebellion was filed, a motion to lift HDO No. 45 (Rev. Fr. Robert Reyes v.
CA, G.R. No. 182161, December 3, 2009).
41What is the right correlation between a criminal action and a petition for Writ of Amparo both arising
from the same set of facts? (2011 BAR)
(A) When the criminal action is filed after the Amparo petition, the latter shall be dismissed.
(B) The proceeding in an Amparo petition is criminal in nature.
(C) No separate criminal action may be instituted after an Amparo petition is filed.
(D) When the criminal action is filed after the Amparo petition, the latter shall be consolidated with
the first.
4.14.12. Interim reliefs42 available to petitioner and respondent

Petitioner Respondent
1. Temporary protection order; 1. Inspection order;

2. Inspection order; 2. Production order (Sec. 15)
3. Production order;
4. Witness protection order (Sec. 14)
1. *****An interim relief cannot be granted independently when a writ of

amparo has already been issued. Provisional reliefs are intended to assist
the court before it arrives at a judicious determination of the amparo
petition. The privilege of the writ of amparo, once granted, necessarily
entails the protection of the aggrieved party (Yano v. Sanchez, G.R. No.
186640, February 11, 2010).
2. Temporary protection and witness protection orders
****Temporary protection and witness protection orders may be issued
motu proprio by the court unlike inspection and protection orders which
may be issued only upon verified petition by the party.
3. Inspection Order
A basic requirement before an amparo court may grant an inspection
order is that the place to be inspected is REASONABLY
DETERMINABLE from the allegations of the party seeking the
order. ****While the Amparo Rule does not require that the place to be
inspected be identified with clarity and precision, it is, nevertheless, a
minimum for the issuance of an inspection order that the supporting
allegations of a party be sufficient in itself, so as to make a prima facie case
4.14.13. Quantum of proof in application for issuance of writ of amparo

1. In a petition for a writ of amparo, the parties shall establish their claims by
SUBSTANTIAL EVIDENCE43 (Sec. 17, A.M. No. 07-9-12-SC).
42 Under the Rules on the Writ of Amparo, interim relief orders may be issued by the Court except: (2012
BAR)
i. production order;
j. witness protection order;
k. hold departure order;
l. temporary protection order.
43 Alex filed a petition for writ of amparo against Melba relative to his daughter Toni's involuntary
disappearance. Alex said that Melba was Toni's employer, who, days before Toni disappeared, threatened to
get rid of her at all costs. On the other hand, Melba countered that she had nothing to do with Toni's
disappearance and that she took steps to ascertain Toni's whereabouts. What is the quantum of evidence
required to establish the parties' respective claims? (2011 BAR)
(A) For Alex, probable cause; for Melba, substantial evidence.
2. *****Public officials and employees must prove that EXTRAORDINARY

diligence was exercised in the performance of duty while only ORDINARY
diligence is required for private individual or entity. Public officials or
employees are charged with a higher standard of conduct because it is their
legal duty to obey the Constitution, especially its provisions protecting the
right to life, liberty and security (Sec. 17, A.M. No. 07-9-12-SC). The same
provision provides that respondent ****public official or employee cannot
invoke the presumption that official duty has been regularly performed to
evade responsibility or liability.
Judgment
1. The court shall render judgment within ten (10) days from the time the
petition is submitted for decision (Sec. 18).44
2. No enforcement of [within?] five (5) days like in Habeas Data.
3. Judgment subject to appeal via Rule 45 within five (5) days. The appeal
may raise not only questions of law but also questions of fact or both.45
DOCTRINE OF TOTALITY OF EVIDENCE

[] The doctrine of totality of evidence in amparo cases means that the court
must consider all the pieces of evidence adduced in their totality, not in
isolation with each other, and to consider any evidence otherwise
inadmissible under our usual rules to be admissible if it is consistent with
the admissible evidence adduced. *****In other words, we reduce our rules
to the most basic test of reason – i.e., to the RELEVANCE of the evidence
to the issue at hand and its consistency with all other pieces of adduced
evidence. ****Thus, even hearsay evidence can be admitted if it satisfies
this basic minimum test (Razon, Jr. v. Tagitis G.R. No. 182498, December 3,
2009).
——————————————————————————————
(B) For Alex, preponderance of evidence; for Melba, substantial evidence.

(C) For Alex, proof beyond reasonable doubt; for Melba, ordinary diligence.
(D) For both, substantial evidence.
44 If the allegations are proven with substantial evidence, the court shall grant the privilege of the writ and
such reliefs as may be proper and appropriate. The judgment should contain measures, which the judge
views as essential for the continued protection of the petitioner in the Amparo case. These measures must
be detailed enough so that the judge may be able to verify and monitor the actions taken by the
respondents. It is this judgment that could be subject to appeal to the Supreme Court via Rule 45 De Lima
v. Gatdula, G.R. No. 204528, February 19, 2013).
45 Any party may appeal from the final judgment or order to the SC under Rule 45 within five (5) days.
The appeal may raise not only questions of law but also questions of fact or both *****because its
subject is extralegal killings or enforced disappearances, which might necessitate a review of errors
of fact (Sec. 19, Ibid.). Reason: Amparo proceedings involve determination of facts considering its
subject-extralegal killings and enforced disappearances.
4.3. Writ of Habeas Data (A.M. No. 08-1-16-SC)
ON THE WRIT OF HABEAS DATA46

1. It is a remedy available to any person whose right to privacy in LIFE,
LIBERTY OR SECURITY is violated or threatened by an unlawful act or
omission of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved party
(Sec. 1, A.M. No. 08-1-16-SC).
2. The writ of habeas data was conceptualized as a judicial remedy
enforcing the right to privacy, *****most especially the RIGHT TO
INFORMATIONAL PRIVACY of individuals. The writ operates to
protect a person’s RIGHT to CONTROL INFORMATION REGARDING
HIMSELF, particularly in the instances where such information is being
collected through unlawful means in order to achieve unlawful ends
NATURE OF HEARING ON THE PETITION

1. The nature of the hearing on the petition is SUMMARY. However, the
court, justice or judge may call for a PRELIMINARY CONFERENCE
to SIMPLIFY THE ISSUES and determine the POSSIBILITY OF OBTAINING
STIPULATIONS AND ADMISSIONS from the parties (Sec. 15, A.M. No. 08-1-16-
SC).
4.15.1. Scope of writ

1. The writ of habeas data provides a judicial remedy to protect a person’s right
to control information regarding oneself, particularly in instances where such
information is being collected through unlawful means in order to achieve
unlawful ends. As an independent and summary remedy to protect the right
to privacy – especially the right to informational privacy – the proceedings for
the issuance of the writ of habeas data ****does not entail any finding of
criminal, civil or administrative culpability.
2. If the allegations in the petition are proven through SUBSTANTIAL
EVIDENCE, then the Court may:
a. GRANT access to the database or information;
b. ENJOIN the act complained of; or
46 Q: What is the writ of habeas data? (1%) (2009 Bar Question) SUGGESTED ANSWER:
*****The writ of habeas data is a remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and correspondence of the aggrieved party.
c. In case the database or information contains erroneous data or

information, ORDER its DELETION, DESTRUCTION OR RECTIFICATION
(Rodriguez vs. Arroyo, G.R. No. 191805, November 15, 2011).
3. The writ of habeas data is an independent and summary remedy designed
to PROTECT THE IMAGE, PRIVACY, HONOR, INFORMATION,
AND FREEDOM OF INFORMATION of an individual, and to provide a
forum to enforce one’s RIGHT TO THE TRUTH and to
INFORMATIONAL PRIVACY. It seeks to protect a person’s right to
control information regarding oneself, particularly in instances in which
such information is being collected through unlawful means in order to achieve
unlawful ends. It must be emphasized that in order ******for the privilege of
the writ to be granted, there must exist a NEXUS between the right to
privacy on the one hand, and the right to life, liberty or security on the
other (Gamboa vs. Chan, G.R. No. 193636, July 24, 2011).
4.15.2. Availability of writ

1. To any person
2. Whose right to privacy in life, liberty and security is violated or threatened
3. With violation by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in:47
a. Gathering
b. Collecting; or
c. Storing of data or information regarding the person family, home
and correspondence of the aggrieved party (Sec. 1, A.M. No. 08-1-16-SC).
4.15.3. Distinguished from habeas corpus and amparo

*See table under Habeas corpus, supra
47Q: Azenith, the cashier of Temptation Investments, Inc. (Temptation, Inc.) with principal offices in
Cebu City, is equally hated and loved by her co-employees because she extends cash advances or
"vales" to her colleagues whom she likes. One morning, Azenith discovers an anonymous letter
inserted under the door of her office threatening to kill her. Azenith promptly reports the matter to
her superior Joshua, who thereupon conducts an internal investigation to verify the said threat. Claiming
that the threat is real, Temptation, Inc. opts to transfer Azenith to its Palawan Office, a move she
resists in view of the company's refusal to disclose the results of its investigation. Decrying the move as a
virtual deprivation of her employment, Azenith files a petition for the issuance of a writ of habeas data
before the Regional Trial Court (RTC)to enjoin Temptation, Inc. from transferring her on the ground that
the company's refusal to provide her with a copy of the investigation results compromises her right
to life, liberty and privacy. Resolve the petition. Explain. (5%) (2010 Bar Question) SUGGESTED
ANSWER:
Azenith's petition for the issuance of a writ of habeas data must be dismissed as there is no
showing that her right to privacy in life, liberty or security is violated or threatened by an unlawful
act or omission. Neither was the company shown to be engaged in the gathering, collecting nor
storing of data or information regarding the person, family, home and correspondence of the
aggrieved party (Sec. 1, Rule on the Writ of Habeas Data).
4.15.4. Contents of the petition

1. The personal circumstances of the petitioner and the respondent;
2. The manner the right to privacy is violated or threatened and how it affects
the right to life, liberty or security of the aggrieved party;
3. The actions and recourses taken by the petitioner to secure the data or
information;
4. The location of the files, registers or databases, the government office,
and the person in charge, in possession or in control of the data or
information, if known;
5. The reliefs prayed for, which may include the updating, rectification,
suppression or destruction of the database or information or files kept by the
respondent. In case of threats, the relief may include a prayer for an order
enjoining the act complained of; and
6. Such other relevant reliefs as are just and equitable (Sec. 6, A.M. No. 08-
1-16-SC). [] Section 6 of the Rule on the Writ of Habeas Data requires
******material allegations of ultimate facts in a petition for the issuance of
a writ of habeas data. It cannot be use as a tool for a “fishing expedition.”48
Who may file

1. Any aggrieved party may file a petition for the writ of habeas data.
2. However, in cases of extralegal killings and enforced disappearances,
the petition may be filed by:
a. Any member of the immediate family of the aggrieved party, namely:
the spouse, children and parents; or
b. In default thereof, any ascendant, descendant or collateral relative
of the aggrieved party within the fourth civil degree of consanguinity or
affinity (Sec. 2, A.M. No. 08-1-16-SC).
*****Unlike in amparo, human rights organizations or institutions are
no longer allowed to file the petition.
4.15.5. Contents of return

*The respondent, within 5 working days from the service of the writ, unless
reasonably extended by the Court, shall allege:
1. Lawful defenses such as
48Specifically, we see no concrete allegations of unjustified or unlawful violation of the right to privacy
related to the right to life, liberty or security. The petition likewise has not alleged, much less
demonstrated, any need for information under the control of police authorities other than those it
has already set forth as integral annexes. The necessity or justification for the issuance of the writ, based
on the insufficiency of previous efforts made to secure information, has not also been shown. In sum,
****the prayer for the issuance of a writ of habeas data is nothing more than the “fishing expedition”
that this Court - in the course of drafting the Rule on habeas data - had in mind in defining what the
purpose of a writ of habeas data is not. In these lights, the outright denial of the petition for the issuance
of the writ of habeas data is fully in order (Tapuz vs. Judge Rosario, G.R. No.182484, June 17, 2008).
a. national security,
b. state secrets,
c. privileged communication,
d. confidentiality of the source of information of media and
e. others;
2. If respondent in charge, in possession or in control of the data or
information subject of the petition:
a. Disclosure of the data or information about petitioner, nature of
such data or information, and purpose of its collection;
b. Steps or actions taken by respondent to ensure the security and
confidentiality of the data or information;
c. Currency and accuracy of the data and information held; and
d. Other allegations relevant to the resolution of the proceeding;
3. *****A general denial of the allegations in the petition shall not be
allowed (Sec. 10, A.M. No. 08-1-16-SC).
4.15.6. Instances when petition may be heard in chambers

*Hearing in chambers may be conducted where respondent invokes the
defense that
1. the release of the data or information shall compromise national security
or state secrets, or
2. when the data or information cannot be divulged to the public due its
nature or privileged character (Sec. 12, A.M. No. 08-1-16-SC).
4.15.7. Consolidation
1. When a criminal action is filed subsequent to the filing of a petition for the
writ, the latter shall be consolidated with the criminal action; or
2. When a criminal action and a separate civil action are filed subsequent to
a petition for a writ of habeas data, the petition shall be consolidated with the
criminal action.
3. After consolidation, the procedure under the Rule shall continue to govern
the disposition of the reliefs in the petition (Sec. 21, A.M. No. 08-1-16-SC).
4.15.8. Effect of filing of a criminal action

*****When a criminal action has been commenced, no separate petition for
the writ shall be filed. The reliefs under the writ shall be available by motion
in the criminal case (Sec. 21, A.M. No. 08-1-16-SC).
4.15.9. Institution of separate action

*This Rule shall not preclude the filing of separate criminal, civil or
administrative actions (Sec. 20, A.M. No. 08-1-16-SC).
4.15.10. Quantum of proof in application for issuance of writ of amparo

1. If the allegations in the petition are proven by SUBSTANTIAL
EVIDENCE, the court shall enjoin the act complained of, or order the
deletion, destruction, or rectification of the erroneous data or information and
grant other relevant reliefs as may be just and equitable; otherwise, the privilege
of the writ shall be denied (Sec. 16, A.M. No. 08-1-16-SC)
2. The Court has ruled that ****in view of the recognition of the evidentiary
difficulties attendant to the filing of a petition for the privilege of the writs
of amparo and habeas data, NOT ONLY DIRECT EVIDENCE, but
CIRCUMSTANTIAL EVIDENCE, indicia, and presumptions may be
considered, so long as they lead to conclusions CONSISTENT with the
admissible evidence adduced.
3. Given that the TOTALITY of the evidence presented by the petitioner
failed to support his claims (his inclusion in the “order of battle” and
monitoring activities conducted against him), the reliefs prayed for, therefore,
cannot be granted. *****The liberality accorded to amparo and habeas
data cases does not mean that a claimant is dispensed with the onus of
proving his case. "Indeed, even the liberal standard of substantial
evidence demands some ADEQUATE EVIDENCE." (Saez vs. Arroyo,
G.R. No. 183533, September 25, 2012).
ISSUANCE of the writ vs. PRIVILEGE of the writ*****

ISSUANCE OF THE WRIT PRIVILEGE OF THE WRIT
This is issued upon the filing of the petition if on This is issued after hearing, in the form
its face it ought to issue. NB: Sec. 7. Upon the filing of a judgment. NB: The court shall
of the petition, the court, justice or judge shall render judgment within 10 days from
immediately order the issuance of the writ if on its the time the petition is submitted for
face it ought to issue. The clerk of court shall issue decision. If the allegations in the petition
the writ under the seal of the court and cause it to are proven by substantial evidence, the
be served within 3 days from its issuance; or, in court shall enjoin the act complained
case of urgent necessity, the justice or judge may of, or order the deletion, destruction,
issue the writ under his or her own hand, and may or rectification of the erroneous data or
deputize any officer or person to serve it. The writ information and grant other relevant
shall also set the date and time for summary reliefs as may be just and equitable;
hearing of the petition which shall not be later than otherwise, the privilege of the writ shall
10 work days from the date of its issuance be denied.
Omitted Rules (Bar 2017)

For the 2017 bar exam, the following topics in SPECIAL PROCEEDINGS49
in previous bar exams were taken away; but below are the bar areas:
1. Settlement50 of estate51 of deceased persons, venue and process
a. TESTATE. Probate52 of the will is mandatory;53 What are the
jurisdictional facts that must be alleged in a petition for probate of a
will?(2012 BAR) A: The jurisdictional facts in a petition for probate are: (1) that
49 Anna filed a petition for appointment as regular administratrix of her fathers' estate. Her sister Sophia
moved to dismiss the petition on the ground that the parties, as members of the same family, have not
exerted earnest effort toward a compromise prior to the filing of the petition. Should the petition be
dismissed? (2011 BAR)
(A) Yes, since such earnest effort is jurisdictional in all estate cases.
(B) No, since such earnest effort is not required in special proceedings.
(C) Yes, since such earnest effort is required prior to the filing of the case.
(D) No, since such earnest effort toward a compromise is not required in summary proceedings.
50 Apart from the case for the settlement of her parents' estate, Betty filed an action against her sister, Sigma,
for reconveyance of title to a piece of land. Betty claimed that Sigma forged the signatures of their late
parents to make it appear that they sold the land to her when they did not, thus prejudicing Betty’s legitime.
Sigma moved to dismiss the action on the ground that the dispute should be resolved in the estate
proceedings. Is Sigma correct? (2011 BAR)
(A) Yes, questions of collation should be resolved in the estate proceedings, not in a separate civil
case.
(B) No, since questions of ownership of property cannot be resolved in the estate proceedings.
(C) Yes, in the sense that Betty needs to wait until the estate case has been terminated.
(D) No, the filing of the separate action is proper; but the estate proceeding must be suspended meantime.
51 In proceedings for the settlement of the estate of deceased persons, the court in which the action is
pending may properly (2011 BAR)

(A) pass upon question of ownership of a real property in the name of the deceased but claimed by a
stranger.
(B) pass upon with the consent of all the heirs the issue of ownership of estate asset, contested by
an heir if no third person is affected.
(C) rule on a claim by one of the heirs that an estate asset was held in trust for him by the deceased.
(D) rescind a contract of lease entered into by the deceased before death on the ground of contractual
breach by the lessee.
52 Q: After Lulu’s death, her heirs brought her last will to a lawyer to obtain their respective shares in the
estate. The lawyer prepared a deed of partition distributing Lulu’s estate in accordance with the terms of her
will.
Is the act of the lawyer correct? Why? (2%) (2005 Bar Question) SUGGESTED ANSWER:
No. No will shall pass either real or personal estate unless it is proved and allowed in the proper
court. (Section 1, Rule 75, Rules of Court.)
53 Q: The heirs of H agree among themselves that they will honor the division of H’s estate as indicated in
her Last Will and Testament. To avoid the expense of going to court in a Petition for Probate of the Will,
can they instead execute an Extrajudicial Settlement Agreement among themselves? Explain briefly. (5%)
(2007 Bar Question) SUGGESTED ANSWER:
The heirs of H cannot validly agree to resort to extrajudicial settlement of his estate and do
away with the probate of H’s last will and testament. Probate of the will is mandatory (Guevarra v.
Guevarra, 74 Phil. 479 [1943]). The policy of the law is to respect the will of the testator as manifested in
the other dispositions in his last will and testament, insofar as they are not contrary to law, public
morals and public policy. Extrajudicial settlement of an estate of a deceased is allowed only when the
deceased left no last will and testament and all debts, if any, are paid (Rule 74, Sec. 1, Rules of Court).
a person died leaving a will; (2) in case of a resident, that he resided within
the territorial jurisdiction of the court; and (3) in the case of a non- resident,
that he left an estate within such territorial jurisdiction. The jurisdictional
facts shall be contained in a petition for allowance of will. NB: The law
favors testacy over intestacy.54 The named executor in the will is not obliged
to file a petition for probate: he is only obliged to deliver the will within
twenty (20) days after he knows of the death of the testator.55 Every page of the
will must be signed by the testator and his instrumental witnesses.56 A will will
54 Q: Czarina died single. She left all her properties by will to her friend Duqueza. In the will, Czarina stated
that she did not recognize Marco as an adopted son because of his disrespectful conduct towards her.
Duqueza soon instituted an action for probate of Czarina's will. Marco, on the other hand, instituted
intestate proceedings. Both actions were consolidated before the RTC of Pasig. On motion of Marco,
Duqueza's petition was ordered dismissed on the ground that the will is void for depriving him of his
legitime. Argue for Duqueza. (5%) (2010 Bar Question) SUGGESTED ANSWER:
The petition for probate of Czarina's will, as filed by Duquesa should not be dismissed on mere
motion of Marco who instituted intestate proceedings. The law favors testacy over intestacy, hence, the
probate of the will cannot be dispensed with. (See Sec. 5, Rule 75) Thus, unless the will – which shows
the obvious intent to disinherit Marco – is probated, the right of a person to dispose of his property maybe
rendered nugatory (See Seangio v. Reyes, G.R. Nos. 140371-72, Nov. 27, 2006). Besides, the authority of
the probate court is generally limited only to a determination of the extrinsic validity of the will. In
this case, Marco questioned the intrinsic validity of the will.
55 Q: Sergio Punzalan, Filipino, 50 years old, married, and residing at Ayala Alabang Village, Muntinlupa
City, of sound and disposing mind, executed a last will and testament in English, a language spoken and
written by him proficiently. He disposed of his estate consisting of a parcel of land in Makati City and cash
deposit at the City Bank in the sum of D300 Million. He bequeathed P50 Million each to his 3 sons md PI
50 Million to his wife. He devised a piece of land worth a 100 Million to Susan, his favorite daughter-in-law.
He lamed his best friend, Cancio Vidal, as executor of the will without bond. (2006 Bar Question)
1. Is Cancio Vidal, after learning of Sergio’s death, obliged to file with the proper court a petition
for probate of the latter’s last will and testament? 2% SUGGESTED ANSWER: No, Cancio Vidal is not
obliged to file a petition for probate because under Sec. 3, Rule 75, he is only obliged to deliver the will
within twenty (20) days after he knows of the death of the testator.
2. Supposing the original copy of the last will and testament was lost, can Cancio compel Susan to
produce a copy in her possession to be submitted to the probate court? 2% SUGGESTED ANSWER: Yes,
as a person having custody of the will, Susan has the duty to deliver the will to the court having
jurisdiction or to the executor named in the will within twenty (20) days upon learning the death of the
testator (Sec. 2, Rule 75 of the Rules of Court).
3. Can the widow and her children settle extrajudicially among themselves the estate of the
deceased? 2% SUGGESTED ANSWER: No, an extrajudicial settlement of estate by agreement between or
among the heirs of the deceased may be had only when the decedent left no will (Sec. 1, Rule 75 of the
Rules of Court).
4. Can the widow and her children initiate a separate petition for partition of the estate pending
the probate of the last will and testament by the proper court? 2% (2006 Bar Question) SUGGESTED
ANSWER:
No, the widow and her children cannot file a separate petition for partition pending the probate of the
Will (Sec. 1, Rule 75 of the Rules of Court; Vda. de Kilayko v. Tengco, 207 SCRA 600, [1992]). Partition is
part of the testate estate proceeding.
5. Can the probate court appoint the widow as executor of the will? 2% SUGGESTED ANSWER:
Yes, the probate court can appoint the widow as an executor of the will if Cancio Vidal is found to be
incompetent, refuses the trust, or fails to give a bond, provided that she is competent and willing to
serve (Sec. 6, Rule 78 of the Rules of Court).
56 Q: A will containing three pages was written in two leaves of paper. The will was written on the first page
of the first leaf, the second page on the reverse side of said first leaf, and the third page on the second leaf.
be disallowed if the original intention is to make a donation inter vivos.57 A

foreigner’s will can be probated before a proper court in the Philippines.58,59 A
lost or destroyed will may also be allowed.60
The signature of the testatrix as well as of the instrumental witnesses were written on the left margin of the
first page or first folio and on the third page or second folio but not on the second page or reverse side of
the first leaf.
May the will be admitted to probate? Explain. (1996 Bar Question) Answer:
No, because the law requires that each and every page of the will should be signed by the
testator and his instrumental witnesses. (Art. 808 Civil Code; Caneda vs. Court of Appeals, 222 SCRA
781)
57 Which of the following is sufficient to disallow a will on the ground of mistake? (2011 BAR)
(A) An error in the description of the land devised in the will.

(B) The inclusion for distribution among the heirs of properties not belonging to the testator.
(C) The testator intended a donation intervivos but unwittingly executed a will.
(D) An error in the name of the person nominated as executor.
58 Q: Johnny, a naturalized citizen of the United States of America (USA) but formerly a Filipino citizen,
executed a notarial will in accordance with the laws of the State of California, USA. Johnny, at the
time of his death, was survived by his niece Anastacia, an American citizen residing at the condominium
unit of Johnny located at Fort Bonifacio, Taguig City; a younger brother, Bartolome, who manages
Johnny’s rental condominium units in Makati City. Johny’s entire estate which he inherited from his parents
is valued at P200 million. Johnny appointed Anastacia’s executrix of his will. (2014)
a. Can Johnny’s notarial will be probated before the proper court in the Philippines? A: YES.
Johnny’s notarial will can be probated before the proper court in the Philippines. A foreign will can be
given legal effects in our jurisdiction. Article 816 of the Civil Code states that the will of an alien who is
abroad produces effect in the Philippines if made in accordance with the formalities prescribed by
law of the place where he resides, or according to the formalities observed in his country (Palaganas v.
Palaganas, G.R. No. 169144, January 26, 2011).
b. Is Anastacia qualified to be the executrix of Johnny’s notarial will? A: YES. Anastacia is
qualified. Under the rules, the following persons are incompetent to serve as executor or administrator:
(a) a minor; (b) not a resident of the Philippines; and (c) is in the opinion of the court unfit to execute
the duties of the trust by reason of drunkenness, improvidence, or want of understanding or
integrity, or by reason of conviction of an offense involving moral turpitude (Sec. 1, Rule 78). While
she is an American citizen, she is nonetheless a resident of the Philippines. Accordingly, Anastacia is not
disqualified because there is no prohibition against an alien residing in the Philippines to serve as an
executor of an estate.
59 Q: Pedrillo, a Fil-Am permanent resident of Los Angeles, California at the time of his death,
bequeathed to Winston a sum of money to purchase an annuity. Upon Pedrillo's demise, his will was
duly probated in Los Angeles and the specified sum in the will was in fact used to purchase an
annuity with XYZ of Hong Kong so that Winston would receive the equivalent of US$1,000 per month
for the next 15 years. Wanting to receive the principal amount of the annuity, Winston files for the
probate of Pedrillo's will in the Makati RTC. As prayed for, the court names Winston as administrator
of the estate. Winston now files in the Makati RTC a motion to compel XYZ to account for all sums in
its possession forming part of Pedrillo's estate. Rule on the motion. (5%) (2010 Bar Question)
SUGGESTED ANSWER:
The motion should be denied. Makati RTC has no jurisdiction over XYZ of Hong Kong. The
letters of administration granted to Winston only covers all Pedrillo's estate in the Philippines. (Rule
77, Sec. 4) This cannot cover the annuities in Hongkong. At the outset, Makati RTC should not have
taken cognizance of the petition filed by Winston, because the will does not cover any property of Pedrillo
located here in the Philippines.
60 a. What are the requisites in order that a lost or destroyed Will may be allowed? (2%) In order that a lost
or destroyed will may be allowed, the following must be complied with:

1. the execution and validity of the same should be established;
b. INTESTATE. If the heirs are all of age, they may, without securing
letters of administration, divide the estate among themselves by means of a
public instrument or by stipulation in a pending action for partition and
shall file a bond with the register of deeds in an amount equivalent to the value of the
personal property involved as certified to under oath by the parties concerned. The fact of
extrajudicial settlement shall be published in a newspaper of general circulation
once a week for three consecutive weeks in the province.61
c. Two exceptions to the judicial administration of the estate of the
deceased, that is, no need for an executor/administrator;62 The same principles
2. the will must have been in existence at the time of the death of the testator, or shown to have been
fraudulently or accidentally destroyed in the lifetime of the testator without his knowledge; and
3. its provisions are clearly and distinctly proved by at least two credible witnesses. (Sec. 6, Rule
76 of the Rules of Court)
[] b. A’s Will was allowed by the Court. No appeal was taken from its allowance. Thereafter, Y,
who was interested in the estate of A, discovered that the Will was not genuine because A’s
signature was forged by X. A criminal action for forgery was instituted against X. May the due
execution of the Will be validly questioned in such criminal action? (2%) No. The allowance of the
will from which no appeal was taken is conclusive as to its due execution. (Sec. 1 of Rule 75.) Due
execution includes a finding that the will is genuine and not a forgery. Accordingly, ******the due
execution of the will cannot again be questioned in a subsequent proceeding, not even in a
criminal action for forgery of the will.
61 Q: Nestor died intestate in 2003, leaving no debts. How may his estate be settled by his heirs who are of
legal age and have legal capacity? Explain. (2%)(2005 Bar Question) SUGGESTED ANSWER:
If the decedent left no will and no debts, and the heirs are all of age, the parties may, without
securing letters of administration, divide the estate among themselves by means of a public instrument or by
stipulation in a pending action for partition and shall file a bond with the register of deeds in an amount
equivalent to the value of the personal property involved as certified to under oath by the parties concerned.
The fact of extrajudicial settlement shall be published in a newspaper of general circulation once a week for
three consecutive weeks in the province. (Section 1, Rule 74, Rules of Court).
62 Q: The rules on special proceedings ordinarily require that the estate of the deceased should be judicially
administered thru an administrator or executor. What are the two exceptions to said requirement? (5%)
(2001 Bar Question) SUGGESTED ANSWER:The two exceptions to the requirement are:
1. Where the decedent left no will and no debts and the heirs are all of age, or the minors are
represented by their judicial or legal representatives duly authorized for the purpose, the parties may
without securing letters of administration, divide the estate among themselves by means of a public
instrument filed in the office of the register of deeds, or should they disagree, they may do so in an ordinary
action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means of
an affidavit filed in the office of the register of deeds. The parties or the sole heir shall file simultaneously a bond
with the register of deeds, in an amount equivalent to the value of the personal property as certified to
under oath by the parties and conditioned upon the payment of any just claim that may be filed later. The
fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation
in the province once a week for three consecutive weeks. (Sec. 1 of Rule 74, Rules of Court)
2. Whenever the gross value of the estate of a deceased person, whether he died testate or intestate, does
not exceed ten thousand pesos, and that fact is made to appear to the Regional Trial Court having
jurisdiction of the estate by the petition of an interested person and upon hearing, which shall be held not
less than one (1) month nor more than three (3) months from the date of the last publication of a
notice which shall be published once a week for three consecutive weeks in a newspaper of general
circulation in the province, and after such other notice to interested persons as the court may direct, the
court may proceed summarily, without the appointment of an executor or administrator, to settle the estate. (Sec. 2
of Rule 74, Rules of Court)
are applied in this bar problem63

d. Remedy of an heir who had no knowledge, hence, did not take part in
the extrajudicial settlement proceedings: file a complaint to annul the
extrajudicial settlement. Is not the publication of the settlement a notice to
the whole world? Yes but it was intended for the protection of creditors and
was never intended to deprive heirs of their lawful participation in the
decedent’s estate. Prescriptive period: within four (4) years after the settlement
was registered.64
2. Summary settlement of estates
3. Production and probate of will
4. Allowance or disallowance of will
63 Q: Rene died intestate, leaving several heirs and substantial property here in the Philippines. (1994 Bar
Question)
1. Assuming Rene left no debts, as counsel lor Rene’s heirs, what steps would you suggest to settle Rene’s
estate in the least expensive manner? To settle Rene’s estate in the least expensive manner, an extrajudicial
settlement of the estate by agreement of the parties should be made through a public instrument to be
filed with the Register of Deeds, together with a bond in an amount equivalent to the value of the
personal property involved as certified to under oath by the parties concerned and conditioned upon
payment of any just claim that may be filed within two (2) years by an heir or other person unduly
deprived of participation in the estate. The fact of extrajudicial settlement or administration shall be
published in a newspaper of general circulation once a week for three (3) consecutive weeks. (Sec. I, Rule
74).
2. Assuming Rene left only one heir and no debts, as counsel for Rene’s lone heir, what steps would you
suggest? If Rene left only one heir, then the heir may adjudicate to himself the entire estate by means of
an affidavit of self-adjudication to be filed also with the Register of Deeds, together with the other requirements
abovementioned. [Id.)
3. Assuming that the value of Rene’s estate does not exceed P10,000.00, what remedy is available to obtain
a speedy settlement of his estate? Since the value of Rene’s estate does not exceed P 10,000.00, the remedy
available is to proceed to undertake a summary settlement of estates of small value by filing a petition
in court and upon hearing, which shall be held not less than one (1) month nor more than three (3)
months from the date of the last publication of a notice which shall be published once a week for three
(3) consecutive weeks in a newspaper of general circulation in the province and after such other notice to
interested persons as the court may direct. The court may proceed summarily without the appointment of an executor or
administrator, and without delay, grant, if proper, allowance of the will, if any, to determine the persons
legally entitled to participate in the estate, and to apportion and divide it among them after payment
of such debts of the estate as the court shall then find to be due. The order of partition if it involves real estate,
shall be recorded by the proper register's office. (Sec. 2, Rule 74).
64 Q: Pinoy died without a will. His wife, Rosie, and three children executed a deed of extrajudicial
settlement of his estate. The deed was properly published and registered with the Office of the Register of
Deeds. Three years thereafter, Suzy appeared, claiming to be the illegitimate child of Pinoy. She sought to
annul the settlement alleging that she was deprived of her rightful share in the estate. Rosie and the three
children contended that (1) the publication of the deed constituted constructive notice to the whole world,
and should therefore bind Suzy; and (2) Suzy’s action had already prescribed. Are Rosie and the three
children correct? Explain. (4%) (2009 Bar Question) SUGGESTED ANSWER:
NO, the contention is not correct. Suzy can file a complaint to annul the extrajudicial settlement
and she can recover what is due her as such heir if her status as an illegitimate child of the deceased has
been established. The publication of the settlement does not constitute constructive notice to the heirs who
had no knowledge or did not take part in it because the same was notice after the fact of execution. The
requirement of publication is intended for the protection of creditors and was never intended to deprive
heirs of their lawful participation in the decedent’s estate. She can file the action therefor within four (4)
years after the settlement was registered.
5. Letters65 testamentary and of administration;66 A common-law spouse can

file a petition for the issuance of a letter of administration as she has an interest
over the property as its co-owner.67 Two ways to question the appointment of
an administrator.68
6. Claims69 against the estate.
65 Q: A, claiming to be an illegitimate child of the deceased D, instituted an intestate proceeding to
settle the estate of the latter. He also prayed that he be appointed administrator of said estate. S, the
surviving spouse, opposed the petition and A's application to be appointed the administrator on the
ground that he was not the child of her deceased husband D. The court, however, appointed A as the
administrator of said estate. Subsequently, S claiming to be the sole heir of D, executed an Affidavit of
Adjudication, adjudicating unto herself the entire estate of her deceased husband D. S then sold the entire
estate to X.
1. Was the appointment of A as administrator proper? (2%) Yes, unless it is shown that the court gravely
abused its discretion in appointing the illegitimate child as administrator, instead of the spouse. While the
spouse enjoys preference, it appears that the spouse has neglected to apply for letters of
administration within thirty (30) days from the death of the decendent. (Sec. 6, Rule 78, Rules of Court;
Gaspay, Jr. vs. Court of Appeals, 238 SCRA 163.) ALTERNATIVEANSWER: S, the surviving spouse,
should have been appointed administratrix of the estate, in as much as she enjoys first preference in such
appointment under the rules. (Sec. 6(a) of Rule 78, Rules of Court.)
2. Was the action of S in adjudicating the entire estate of her late husband to herself legal? (3%) (1998 Bar
Question) No. An affidavit of self-adjudication is allowed only if the affiant is the sole heir of the
deceased. (Sec. 1, Rule 74, Rules of Court). In this case, A also claims to be an heir. Moreover, it is not legal
because there is already a pending Juridical proceeding for the settlement of the estate.
66 A special administrator may be appointed by a court when: (2012 BAR)
a. theexecutorcannotpostabond.
b. theexecutorfailstorenderanaccount.
c. regular administrator has a claim against estate he represents.
d. a Motion for Reconsideration is filed with respect to a decision disallowing probate of a will.
67 Q: Domenico and Gen lived without benefit of marriage for twenty years, during which time they
purchased properties together. After Domenico died without a will, Gen filed a petition for letters of
administration. Domenico’s siblings opposed the same on the ground that Gen has no legal personality.
Decide. (4%)(2008 Bar Question) SUGGESTED ANSWER:
Gen has the legal personality to file the petition for letters of administration because she is an
“interested person” in contemplation of Section 2, Rule 79 of the Rules of Court, being a co-owner of
the properties acquired through joint efforts with Domencio during their cohabitation for 20 years. She,
therefore, has direct interest as co-owner to such properties forming part of the estate of Domencio
(.Arts. 147-148, Family Code; San Luis v. San Luis, 514 SCRA 294 [2007]).
68 [] Q: Sal Mineo died intestate, leaving a P1 billion estate. He was survived by his wife Dayanara and their
five children. Dayanara filed a petition for the issuance of letters of administration. Charlene, one of the
children, filed an opposition to the petition, alleging that there was neither an allegation nor genuine
effort to settle the estate amicably before the filing of the petition. Rule on the opposition. (5%) (2010
Bar Question) SUGGESTED ANSWER:
The opposition should be overruled for lack of merit. The allegation that there was a genuine effort
to settle the estate amicably before the filling of the petition is not required by the Rules. Besides, a petition
for issuance of letters of administration may be contested on either of two grounds: (1) the
incompetency of the person for whom letters are prayed therein; and (2) the contestant's own right to
the administration. (Sec. 4, Rule 79).
69 The statute of "non-claims" requires that: (2012 BAR)
a. claimsagainsttheestatebepublishedbythecreditors.
b. money claims be filed with the clerk of court within the time prescribed by the rules.
c. claims of an executor or administrator against the estate be filed with the special administrator.
d. within two (2) years after settlement and distribution of the estate, an heir unduly deprived of
participation in the estate may compel the re-settlement of the estate.
7. Actions by and against executors and administrators70

8. Distribution71 and partition. Debts had to be paid before distribution, except
when residual assets are sufficient and the distributees file sufficient bond.72
The probate court cannot distribute properties claimed by third parties.73
9. Trustees
10. Escheat;74 Prescriptive period is five years from date of judgment75 or it be
70 Q: X filed a claim in the intestate proceedings of D. D's administrator denied liability and filed a
counterclaim against X. X's claim was disallowed. Does the probate court still have jurisdiction to allow the
claim of D's administrator by way of offset? Why? (2%) No, because since the claim of X was disallowed,
there is no amount against which to offset the claim of D’s administrator.
[] Suppose D's ‘administrator did not allege any claim against X by way of offset, can D’s
administrator prosecute the claim in an independent proceeding? Why? (3%) (2002 Bar Question) Yes, D’s
administrator can prosecute the claim In an independent proceeding since the claim of X was
disallowed. If X had a valid claim and D’s administrator did not allege any claim against X by way of offset,
his failure to do so would bar his claim forever. (Rule OS, sec. 10).
71 Q: A, B and C, the only heirs in D’s intestate proceedings, submitted a project of partition to the probate
court (RTC-Manila). Upon the court’s approval of the partition, two lots were assigned to C, who
immediately entered into the possession of the lots. Thereafter, C died and proceedings for the
settlement of his estate were filed in the RTC-Quezon City. D’s administrator then filed a motion in the
probate court (RTC-Manila), praying that one of the lots assigned to C in the project of partition be
turned over to him to satisfy debts corresponding to C's portion. The motion was opposed by the
administrator of C’s estate.
How should the RTC- Manila resolve the motion of D’s administrator? Explain. (3%) (2002 Bar Question)
SUGGESTED ANSWER: The motion of D’s administrator should be granted. The assignment of
the two lots to C was premature because the debts of the estate had not been fully paid. [Rule 90, sec.
1; Reyes v. Barreto-Datu, 19 SCRA 85 (1967)].
72 As a rule, the estate shall not be distributed prior to the payment of all charges to the estate. What will
justify advance distribution as an exception? (2011 BAR)

(A) The estate has sufficient residual assets and the distributees file sufficient bond.
(B) The specific property sought to be distributed might suffer in value.
(C) An agreement among the heirs regarding such distribution.
(D) The conformity of the majority of the creditors to such distribution.
73 Q: Sammy Magdalo, executor of the estate of the deceased Rolando Aceron, submitted an inventory
which includes a ten-hectare lot occupied by Carlos Domingo. Domingo opposed inclusion in the
inventory of the property claiming ownership thereof. The probate court directed the executor and
Domingo to present evidence of ownership. Domingo refused to participate in the proceedings,
asserting lack of jurisdiction on the part of the probate court. The probate court nonetheless proceeded
with the hearing, and rendered judgment declaring the deceased to be the owner of the questioned property.
The probate court directed Domingo to vacate' the premises. Is the said Judgment correct? Explain your
answer. (1990 Bar Question) Answer: No, because the probate court has no jurisdiction to
adjudicate title to properties claimed to be part of the estate of the deceased and also claimed by third
parties. (Cuison v. Ramolete, 129 SCRA 495). It may only make a provisional determination for the
purpose of inclusion in the inventory of the estate. (Bolisay v. Alcid, 85 SCRA 213)
74 Q: Give the proper venue for the following special proceedings: (1997 Bar Question) A petition to
declare as escheated a parcel of land owned by a resident of the Philippines who died intestate and
without heirs or persons entitled to the property. Answer: ******The venue of the escheat proceedings of a
parcel of land in this case is the place where the deceased last resided. (Sec. 1, Rule 91, Rules of Court).
75 A person entitled to the estate of a deceased person escheated in favor of the State has: (2012 BAR)
a. 5 years from date of judgment to file a claim.

b. 2yearsfromdateofjudgmenttofileaclaim.
c. 5 years from date of registration of the judgment to file a claim. d.
2yearsfromdateofregistrationofthejudgmenttofileaclaim.
barred forever.76
11. Guardianship.77
a. It is the duty of the guardian to provide for the proper care, custody,
and education of the ward.78
b. Preference on who can be the guardian.79
c. Property under guardianship may be attached although it is in custodia
legis.80
12. Adoption81,82
13. Change of name. For a change of name to prosper, the reason for it must
included among the grounds under Rule 103.83
76 Q: Suppose the property of D was declared escheated on July 1, 1990 in escheat proceedings brought
by the Solicitor General. Now, X, who claims to be an heir of D, files an action to recover the escheated
property. Is the action viable? Why? (2%) (2002 Bar Question) SUGGESTED ANSWER:
No, the action is not viable. The action to recover escheated property must be filed within five
years from July 1,1990 or be forever barred. (Rule 91, sec. 4).
77 Q: Give the proper venue for the following special proceedings: (1997 Bar Question) A petition for the
appointment of an administrator over the land and building left by an American citizen residing in
California, who had been declared an incompetent by an American court. Answer: The venue for the
appointment of an administrator over land and building of an American citizen residing in California,
declared incompetent by an American Court, is the Regional Trial Court of the place where his property
or part thereof is situated. (Sec. 1, Rule 92).
78 Which of the following is a duty enjoined on the guardian and covered by his bond? (2011 BAR)
(A) Provide for the proper care, custody, and education of the ward.
(B) Ensure the wise and profitable investment of the ward’s financial resources.
(C) Collect compensation for his services to the ward.
(D) Raise the ward to become a responsible member of society.
79 In default of parents, the court may appoint a guardian for a minor giving first preference to: (2012
BAR)
e. anolderbrotherorsisterwhoisover18yearsold.
f. the actual custodian over 21 years old.
g. a paternal grandparent
h. anuncleorauntover21yearsold.
80 In a case, the property of an incompetent under guardianship was in custodia legis, can it be attached?
Explain. (2%) SUGGESTED ANSWER: Although the property of an incompetent under guardianship is in
custodia legis, it may be attached as in fact it is provided that in such case, a copy of the writ of
attachment shall be filed with the proper court and notice of the attachment served upon the
custodian of such property. (Sec. 7, last par., Rule 57, 1997 Rules of Civil Procedure.)
81 A and B adopted their nephew. They filed an action for revocation of the adoption on May 1, 1998 on the
ground that their nephew neglected them. Based on the Rules of Domestic Adoption, the judge must: (2012
BAR)
a. advise A and B to just disinherit the nephew.
b. disallow the revocation.
c. refer the petition to the DSWD.
d. grantthepetitionafterhearing.
82 Q: Give the proper venue for the following special proceedings: (1997 Bar Question) A petition for the
adoption of a minor residing in Pampanga. Answer: The venue of a petition for the adoption of a minor
residing in Pampanga is the Regional Trial Court of the place in which the petitioner resides. (Sec. l, Rule
99).
83 Q: A was adopted by B and C when A was only a toddler. Later on in life, A filed with Regional Trial
Court (RTC) a petition for change of name under Rule 103 of the Rules of Court, as he wanted to
reassume the surname of his natural parents because the surname of his adoptive parents sounded
14. Absentees. Note that the declaration of presumptive death under Art. 41
NCC is a Summary Proceeding, as compared to Special Proceeding
governing absentees under Rule 107.84
offensive and was seriously affecting his business and social life. The adoptive parents gave their
consent to the petition for change of name. May A file a petition for change of name? If the RTC grants
the petition for change of name, what, if any, will be the effect on the respective relations of A with his
adoptive parents and with his natural parents? Discuss. (2014)
A: NO. A cannot file a petition for change of name because the reasons he invoked do not
fall among the grounds that would justify the filing of a petition for change of name, to wit: 1. When
the name is ridiculous, dishonourable or extremely difficult to write or pronounce; 2. When the
change results as a legal consequence, as in legitimation; 3. When the change will avoid confusion; 4.
When one has continuously used and been known since childhood by a Filipino name, and was
unaware of alien parentage; 5. A sincere desire to adopt a Filipino name to erase signs of former
alienage, all in good faith and without prejudicing anybody; and 6. When the surname causes
embarrassment and there is no showing that the desired change of name was for a fraudulent purpose
or that the change of name would prejudice public interest (Republic v Court of Appeals, G. R. No.
97906, May 21, 1992).
Moreover, the touchstone for the grant of a change of name is that there be “proper and
reasonable cause” for which the change is sought. To justify a request for change of name, petitioner must
show not only some proper or compelling reason therefore but also that he will be prejudiced by the
use of his true and official name (Republic v. Court of Appeals, G.R. No. 97906, May 21, 1992).
Besides, the State has an interest in the name of a person and that names cannot be changed
to suit merely the convenience of the bearers (In the Matter of the Adoption of Stephanie Nathy
Astorga Garcia, G.R. No. 148311, March 31, 2005; In Re: Petition For Change Of Name And/Or
Correction/ Cancellation Of Entry In Civil Registry OF Julian Lin Carulasan Wang, G.R. No. 159966,
March 30, 2005).
In the case at bar the only reason advanced by A for the change of his surname is that it is
offensive and it seriously affects his business and social life. Accordingly, A’s reasons are not
considered proper and compelling that would justify the filing of his Petition for change of name.
Assuming that the court allows A to reassume the use of the surname of his biological parents,
there will be no effect on the respective relations of A with his adoptive parents and his natural parents.
Until and unless the adoption is rescinded by the court, the paternity and filiation which exist by
reason of adoption subsists. Ergo, the grant of A’s Petition for change of name will have no effect on the
respective relations of A with his adoptive and natural parents. After all, the change of name does not
define or effect change in one’s existing family relations or in the rights and duties flowing
therefrom. It does not alter one’s legal capacity, civil status or citizenship; what is altered is only the
name (Republic v. Court of Appeals, G.R. No. 97906, May 21, 1992).
84 Q: Frank and Gina were married on June 12, 1987 in Manila. Barely a year after the wedding, Frank
exhibited a violent temperament, forcing Gina, for reasons of personal safety, to live with her
parents. A year thereafter, Gina found employment as a domestic helper in Singapore, where she
worked for ten consecutive years. All the time she was abroad, Gina had absolutely no
communications with Frank, nor did she hear any news about him. While in Singapore, Gina met and
fell in love with Willie. On July 4, 2007, Gina Filed a petition with the RTC of Manila to declare
Frank presumptively dead, so that she could marry Willie. The RTC granted Gina’s petition. The Office
of the Solicitor General (OSG) filed a Notice of Appeal with the RTC, stating that it was appealing the
decision to the Court of Appeals on questions of fact and law.
[a] Is a petition for Declaration of Presumptive Death a special proceeding? Why or why not?
(2%) (2009 Bar Question) SUSGESTEDANSWER: NO. The petition for Declaration of Presumptive
Death provided in Art. 41 of the “Family Code” is not the special proceeding governing absentees
under Rule 107 of the Rules of Court whose rules of procedure will not be followed (Republic v. CA, 458
SCRA [2005]). Said petition for Declaration of Presumptive Death under Article 41 of the Family Code is a
summary proceeding, authorized for purposes only of remarriage of the present spouse, to avoid
15. Cancellation or correction of entries in the Civil Registry.

a. ******The recognition of a foreign divorce decree may be made in a
Rule 108 proceeding itself, as the object of special proceedings is precisely
to establish the status or right of a party or particular fact.85
b. If in the local civil registrar, the person is recorded as married but she
is not, a Rule 108 proceeding would be enough, since it is not about nullifying a
marriage—it is only a petition to correct entries in the registry.86
incurring the crime of bigamy. Nonetheless, it is in the nature of a special proceeding, being an
application to establish a status or a particular fact in court.
[b] As the RTC judge who granted Gina’s petition, will you give due course to the OSG’s Notice of
Appeal? Explain. (3%) SUGGESTED ANSWER: NO. Appeal is not a proper remedy since the
decision is immediately final and executory upon notice to the parties under Art. 247 of the Family
Code (Republic v. Bermudes-Lorino, 449 SCRA 57 [2005]). The OSG may assail RTC’s grant of the petition
only on the premise of grave abuse of discretion amounting to lack or excess of jurisdiction. The
remedy should be by certiorari under Rule 65 of the Rules of Court.
85 Q: Hades, an American citizen, through a dating website, got acquainted with Persephone, a
Filipina. Hades came to the Philippines and proceeded to Baguio City where Persephone resides. Hades
and Persephone contracted marriage, solemnized by the Metropolitan Trial Court judge of Makati City.
After the wedding, Hades flew back to California, United States of America, to wind up his business affairs.
On his return to the Philippines, Hades discovered that Persephone had an illicit affair with Phanes.
Immediately, Hades returned to the United States and was able to obtain a valid divorce decree from the
Superior Court of the County of San Mateo, California, a court of competent jurisdiction against
Persephone. Hades desires to marry Hestia, also a Filipina, whom he met at Baccus Grill in Pasay City.
(2015)
a. As Hades' lawyer, what petition should you file in order that your client can avoid prosecution
for bigamy if he desires to marry Hestia? A: As Hades’ lawyer, I would file a petition for recognition of a
foreign divorce decree, or at least a special proceeding for cancellation or correction of entries in the
civil registry under Rule 108 of the Rules of Court and include therein a prayer for recognition of the
aforementioned divorce decree. In Corpuz v. Sto. Tomas, G.R. No. 186571, August 11, 2010, the High
Court declared that “the recognition of the foreign divorce decree may be made in a Rule 108
proceeding itself, as the object of special proceedings (such as that in Rule 108 of the Rules of Court) is
precisely to establish the status or right of a party or particular fact” (Fujiki v. Marinay, G.R. No. 196049,
June 26, 2013).
b. In what court should you file the petition? A: 1. Petition for recognition of foreign divorce
decree should be filed in Regional Trial Court of the place of residence of any of the parties, at the
option of the petitioner; or 2. Petition for cancellation or correction of entries under Rule 108 should
be filed in the
Regional Trial Court of Makati City, where the corresponding Local Civil Registry is located.
c. What is the essential requisite that you must comply with for the purpose of establishing
jurisdictional facts before the court can hear the petition? 1. In a petition for recognition of foreign
judgment, the petitioner only needs to prove the foreign judgment as a fact under the Rules of Court.
To more specific, a copy of foreign judgment may be admitted in evidence and proven as a fact under
Sections 24 and 25 of Rule 132 in relation to Section 48(b) of the Rules of Court (Fujiki v. Marinay, G.R.
No. 196049, June 26, 2013); 2. Before the court can hear the petition under Rule 108 of the Rules of Court,
Hades must satisfy the following procedural requirements: (a) filing of a verified petition; (b) naming as
parties all persons who have or claim any interest which would be affected; (c) issuance of an order
fixing the time and place of the hearing; (d) giving reasonable notice to the parties named in the petition;
and (e) publication of the order once a week for three consecutive weeks in a newspaper of general circulation
(Rule 108; Co v. Civil Registrar of Manila, G.R. No. 138496. February 23, 2004; Corpuz v. Tirol, G.R. No. 186571,
August 11, 2010).
86 Q: Mary Jane met Shiela May at the recruitment agency where they both applied for overseas
employment. They exchanged pleasantries, including details of their personal circumstances. Fortunately,
c. A petition to change the record of birth by changing the filiation

from "legitimate" to “illegitimate" and petitioner's citizenship from
"Chinese" to “Filipino” because her parents were not married, does not involve a
simple summary correction of her certificate of birth, which could otherwise
be done under the authority of Republic Act No. 9048. A petition has to be
filed in an adversarial proceeding under Rule 108.87 NB: Proceedings under
Rule 108 may be either summary or adversary [adversarial] in nature. If the
correction sought to be made in the civil registry is clerical, then the procedure is
summary. If the rectification affects the civil status, citizenship or nationality of a
party, it is deemed substantial and the procedure adopted is adversary
[adversarial].88
Mary Jane was deployed to work as front desk receptionist at a hotel in Abu Dhabi where she met
Sultan Ahmed who proposed marriage, to which she readily accepted. Unfortunately for Shiela May, she
was not deployed to work abroad, and this made her envious of Mary Jane. Mary Jane returned to the
Philippines to prepare for her wedding. She secured from the National Statistics Office (NSO) a Certificate
of No Marriage. It turned out from the NSO records that Mary Jane had previously contracted
marriage with John Starr, a British citizen, which she never did. The purported marriage between Mary
Jane and John Starr contained all the required pertinent details on Mary Jane. Mary Jane later on learned
that Sheila May is the best friend of John Starr. As a lawyer, Mary Jane seeks your advice on her
predicament. What legal remedy would you avail to enable Mary Jane to contract marriage with Sultan
Ahmed? (2014)
A: I will file a Petition for correction or cancellation of entry under Rule 108 of the Rules of
Court. A Petition for correction or cancellation of entry under Rule 108 may be filed by Mary Jane because
what she sought to be corrected is only the record of such marriage in the Civil Registry Office in order
to reflect the truth as set forth by the evidence, and not the nullification of marriage as there was no
marriage on [in] the first place. (Republic of the Philippines v. Merlinda L. Olaybar, G.R. No. 189538,
February 10, 2014).
87 Q: Helen is the daughter of Eliza, a Filipina, and Tony, a Chinese, who is married to another
woman living in China. Her birth certificate indicates that Helen is the legitimate child of Tony and
Eliza and that she is a Chinese citizen, Helen wants her birth certificate corrected by changing her
filiation from “legitimate" to “illegitimate" and her citizenship from "Chinese” to “Filipino"
because her parents were not married. What petition should Helen file and what procedural requirements
must be observed? Explain. (5%) (2005 Bar Question) SUGGESTED ANSWER:
A petition to change the record of birth by changing the filiation from "legitimate" to “illegitimate"
and petitioner's citizenship from "Chinese" to “Filipino because her parents were not married, does not
involve a simple summary correction of her certificate of birth, which could otherwise be done under the
authority of Republic Act No. 9048. A petition has to be filed in an adversarial proceeding under Rule 108
of the Rules of Court, which has now been interpreted to be adversarial in nature (Republic v. Valencia, 141
SCRA 462, [1986); Gupit, Jr., Rules of Procedure in Family Law Annotated, 2005 ed., p. 407.) Procedural
requirements include: (a) filing a verified petition; (b) naming as parties all persons who have or claim any
interest which would be affected; (c) issuance of an order fixing the time and place of hearing; (d) giving
reasonable notice to the parties named in the petition; and (e) publication of the order once a week for three
consecutive weeks in a newspaper of general circulation. (Rule 108, Rules of Court); Co. v. The Civil
Registrar of Manila, 423 SCRA 420 [2004]).
88 Q: On May 12, 1990, Roman Agcaoili filed a petition in the Regional Trial Court to correct his birth
certificate by changing his citizenship from “Chinese" to “Filipino" and his status from “legitimate" to
“illegitimate". The Local Civil Registrar was named respondent in the petition. Copy of the notice of hearing
was served on the Solicitor General. The notice was published in a newspaper of general circulation once a
week for three consecutive weeks. Before the scheduled hearing, the Solicitor General entered his
appearance as counsel for the Republic of the Philippines and authorized the Provincial Prosecutor to
appear in the case. However, the prosecutor did not file an opposition to the petition. Instead, he appeared
16. Appeals89 in special proceedings

[] These are tackled on separate TOM notes, should you be interested.
——————————————————————————————
at/ and participated in. the trial and even cross-examined Agcaoili and his witnesses. There was a full-blown
trial where Agcaoili presented testimonial and documentary evidence proving that he is a Filipino citizen,
being an illegitimate child of Tan Keh (Chinese) and Cayetana Agcaoili (Filipino) who were never married.
However, the Republic presented no evidence. After hearing, the trial court ordered the Local Civil
Registrar to make the corrections sought by Agcaoili. The Solicitor General appealed. He argued that
substantial changes in the civil registry cannot be made under Rule 108 of the Rules of Court. Is the
contention correct? Why? Answer:
No. because proceedings under Rule 108 of the Rules of Court may be either summary or adversary
in nature. If the correction sought to be made in the civil registry is clerical, then the procedure is summary.
If the rectification affects the civil status, citizenship or nationality of a party, it is deemed substantial and
the procedure adopted is adversary. In this case, the procedure was adversary [adversarial]. The proper
notice was published and served on the Solicitor General. There was a full-blown trial where Agcaoili
presented testimonial and documentary evidence proving that he is a Filipino Citizen. The prosecutor
authorized by the Solicitor General to appear in the case participated in the trial and even cross-examined
Agcaoili and his witnesses. Consequently, the court correctly ordered the Local Civil Registrar to make
the corrections sought. (Republic vs. Bautista, 155 SCRA 1)
89 Q: In the Special Proceedings for the settlement of the intestate estate of the deceased Johnny, his widow
by his second marriage, Carmelita, moved for her appointment as Administratrix of the estate. This was
opposed by Manda, the son of Johnny by his first wife, who moved for his appointment instead.
A. The court appointed Carmelita, the widow, as Administratrix. How may Manda contest that appointment
of Carmelita? By appeal, because the appointment of an administrator is a final order under Rule 109.
B. Instead of Administratrix, Carmelita was appointed Special Administratrix. Is the same remedy available
to the oppositor, Manda? Why or why not? No, because no appeal is allowed from the appointment of a
special administrator. (Sec.1(e) of Rule 109)
C. If Johnny left a holographic will, how may it be probated? Explain. (1988 Bar Question) A holographic
will may be probated by filing a petition for the allowance of said will. If it is not contested, at least one
competent witness who knows the handwriting and signature of the testator should explicitly declare that the will
and the signature are in the handwriting of the testator. In the absence of any such competent witness, and if the
court deem it necessary, expert testimony may be resorted to. If it is contested, at least three witnesses who
know the handwriting of the testator should explicitly declare that the will and the signature are in the
handwriting of the testator. In the absence of any competent witness, and if the court deem it necessary, expert
testimony may be resorted to. (Secs. 1,5 and 11 of Rule 76)
V. Criminal Procedure
5.1. General matters
5.1.1. Jurisdiction over subject matter vs. over person of the accused 66
5.1.2. Requisites for exercise of criminal jurisdiction 66
5.1.3. Jurisdiction of criminal courts 67
5.1.4. When injunction may be issued to restrain criminal prosecution 68
——————————————————————————————
BACKGROUNDER ON CRIMPRO
1. Criminal Procedure: The method prescribed by law for the apprehension
and prosecution of persons accused of any criminal offense, and for their
punishment, in case of conviction (Herrera, 2007; Pamaran, 2010).
2. Criminal Jurisdiction: It is the authority to hear and try a particular offense
and impose the punishment for it (People v. Mariano, G.R. No.
L-40527, June 30, 1976).
3. Criminal Law vs. Criminal Procedure
Criminal Law Criminal Procedure
Substantive Remedial
It declares what acts are punishable. It provides how the act is to be punished.
It defines crimes, treats of their nature and It provides for the method by which a person
provides for their punishment. accused of a crime is arrested, tried and if found
guilty, punished.
4. Criminal Procedure vs. Civil Procedure

CRIMINAL PROCEDURE CIVIL PROCEDURE
Venue is jurisdictional, hence, one can file a Venue is not jurisdictional, although one can still
Motion to Quash for lack of jurisdiction (not file a Motion to Dismiss on the ground that the
improper venue). [Sec 3(b), R117] venue is improperly laid [Sec1(c), R16]
the cause of action (coa) belongs to the People of the coa is owned by the Plaintiff
the Philippines (PP), i.e., the offended party is PP
Parties: PP vs. accused Parties: Plaintiff vs. Defendant.

a criminal case has two aspects by reason of Art. a civil case only has one aspect
100 RPC: criminal and civil. XPN: no private part
offended like in treason, flight to enemy country,
violation of neutrality, etc.
CRIMINAL PROCEDURE CIVIL PROCEDURE
a preliminary investigation (PI; R112) is generally there is no PI in a civil case

required
there is arrest in a criminal case no arrest of a defendant is required; XPN:
contempt (R71)
there is bail there is no concept of bail unless the person is
arrested in connection with criminal contempt
double jeopardy (DJ) attaches, a.k.a., res judicata there is no DJ, but it’s equivalent is res judicata
in prison grey (RJ)
the accused has rights clearly listed under R115 no such thing in a civil case
MTQ [R117] MTD [R16]
arraignment is required no arraignment
concept of state witness none
Pre-Trial (see table, infra) Pre-Trial (see table, infra)
Grounds for M/R are not the same Grounds for M/R are not the same
Modified/Reverse Trial [Sec1(e) R118; Sec 11(e) Modified order of trial [Sec 5, R30]
R119]
Neypes rule applies [Yu vs. Tatad] Neypes ruling
Provisional remedies [R127] Provisional remedies [R57-61]
5.1.1. Jurisdiction over subject matter vs. over person of the accused
Jurisdiction over the Subject Matter Jurisdiction over the Person of the Accused
Derived from law. It can never be acquired solely by consent of May be acquired by consent of the
the accused. accused or by waiver of objections.
Objection that the court has no jurisdiction over the subject If he fails to make his objection
matter may be made at any stage of the proceeding, and on time, he will be deemed to have
the right to make such objection is never waived. waived it.
Jurisdiction over the subject matter is determined upon the Jurisdiction over the person of the
allegations made in the complaint, irrespective of whether the accused is acquired by voluntary
plaintiff is entitled or not to recover upon the claim asserted appearance or surrender of the
therein, a matter resolved only after and as a result of the trial. accused or by his arrest.
[] RULE ON RAISING QUESTIONS OF JN

1. GR: Questions of jurisdiction may be raised at any stage of the
proceedings.
2. XPN: The party raising the question is guilty of estoppels or laches (Tijam
v. Sibonghanoy, G.R. No. L-21450, April 15, 1968).
5.1.2. Requisites for exercise of criminal jurisdiction

1. Jurisdiction over the SUBJECT MATTER – This is the power to hear and
determine cases of general class to which the proceeding in question belongs.
The offense, by virtue of the imposable penalty or its nature, is one which
the court is by law authorized to take cognizance of.
2. Jurisdiction over the TERRITORY – The offense must have been
committed or any of its essential ingredients took place within the territorial
jurisdiction of the court. It cannot be waived and where the place of the commission
was not specifically charged, the place may be shown by evidence.
3. Jurisdiction over the PERSON of the accused – The person charged with
the offense must have been brought to its presence for trial, forcibly by
warrant of arrest or upon his voluntary submission to the court.
[] Elements of criminal jurisdiction
a. Penalty attached – The jurisdiction of a Court in criminal cases is
determined by the penalty imposable, and not by the penalty ultimately imposed
(Guevarra v. Almodovar, G.R. No. 75256, January 26, 1989).
****Penalty at the time of institution of the criminal offense, not at
the time of the commission of the offense. EG: penalty is prision correccional
at the time of the commission of the crime, but when it was instituted, it is
already prision mayor. The latter holds. ****JN of the court is also determined
at the time of filing.
b. Nature of the offense charged.
c. Territorial jurisdiction over the place of commission of the crime.
****The absence of any of these elements may be challenged by an
accused at any stage of the proceedings in the court below or on appeal.
Failing to comply with anyone of them, the resulting judgment is void (Uy v.
Court of Appeals, G.R. No. 119000, July 28, 1997).
TESTS TO DETERMINE JURISDICTION OF THE COURT IN

CRIMINAL CASES
1. The geographical limits of its territory;
2. Determined by the allegations in the complaint or information not by the
results of proof or by the trial court’s appreciation of the evidence presented;
3. Determined by the nature of the offense and/or penalty attached thereto
and not what may be meted out after trial; and
4. *****Determined by the law in force at the time of the institution of the
criminal action and not at the time of its commission. Once vested it
CANNOT be withdrawn by:
a. Subsequent valid amendment of the information (People v.
Chipeco, G.R. No. 1968, March 31, 1964); or
b. Subsequent statutory amendment of the rules of jurisdiction unless

the amendatory law expressly provides otherwise or is construed that it is intended to operate
to actions pending before its amendment, in which case the court where the action
is pending is ousted of jurisdiction and the pending action will have to be
transferred to the court having jurisdiction by virtue of the amendatory law
(Binay v. Sandiganbayan G.R. No. 120011, October 1, 1999).
5.1.3. Jurisdiction of criminal courts

1. Determined by the allegations in the complaint or information not by the
results of proof or by the trial court’s appreciation of the evidence presented (Buaya v.
Polo, G.R. No. 75097, January 26, 1989).
2. Determination of jurisdiction when FINE is the only penalty—In cases
where the only penalty provided by law is a fine, the amount thereof shall
determine the jurisdiction of the court:
a. The RTC has jurisdiction where the fine is more than Php 4,000
including offenses committed by public officers and employees in relation to their office, where
the amount of the fine does not exceed Php 6,000 (SC Court Circular No. 09-
94) ****except in cases of criminal negligence involving damage to
property which falls under the exclusive original jurisdiction of the MTC.
b. The MTC has jurisdiction where the fine is Php 4,000 or less.
****Accessory penalties and civil liabilities are no longer
determinative of criminal jurisdiction.
3. Court having jurisdiction on CONTINUING OFFENSES: Continuing
offenses are those consummated in one place, yet by the nature of the
offense, the violation of the law is deemed continuing (EG: estafa and libel).
As such, the courts of the territories where the essential ingredients of the
crime took place have concurrent jurisdiction. ****But the court which first
acquires jurisdiction excludes the other courts.
4. Court having jurisdiction over crimes punishable by DESTIERRO:
****Where the imposable penalty is destierro, the case falls within the
exclusive jurisdiction of the MTC, considering that in the hierarchy of penalties
under Art. 71 of the RPC, destierro follows arresto mayor which involves
imprisonment (People v. Eduarte, G.R. No. 88232, February 26, 1990).
5. [] Bar 2003: In COMPLEX CRIMES, how is the jurisdiction of a court
determined? It is lodged with the trial court having jurisdiction to impose
the maximum and most serious penalty imposable of an offense forming
part of the complex crime. It must be prosecuted integrally and must not be
divided into component offenses which may be made subject of multiple
informations brought in different courts (Cuyos v. Garcia, G.R. No. L-46934,
April 15, 1988).
6. JN for libel (written defamation cases): Photokina Marketing Corporation
filed a complaint for libel against Justice Alfredo Benipayo, then chairman of
the COMELEC. The Information against Justice Benipayo was filed before the
RTC despite the challenge on the jurisdiction of the Office of the City Prosecutor over his
person being a public official. Benipayo contends that it is the Sandiganbayan
who has jurisdiction. Do the Sandiganbayan and RTC have concurrent
jurisdiction over libel or written defamation cases? NO. ****The grant to the
Sandiganbayan of jurisdiction over offenses committed in relation to office,
did not divest the RTC of its exclusive and original jurisdiction to try
written defamation cases regardless of whether the offense is committed
in relation to office (People v. Benipayo, G.R. Nos. 154473 and 155573, April
24, 2009).
5.1.4. When injunction may be issued to restrain criminal prosecution

1. [] Bar 1999: Will injunction lie to restrain the commencement of a criminal
action?
*GR: Injunction cannot lie to restrain the commencement of a
criminal action because public interest requires that criminal acts be
immediately investigated and prosecuted for the protection of society
(Asutilla v. PNB, G.R. No. L-51354, January 15, 1986).
****XPNs:
a. To afford adequate protection to the constitutional rights of the
accused;
b. When necessary for the orderly administration of justice or to
avoid oppression or multiplicity of actions;
c. When there is a prejudicial question which is subjudice;
d. When the acts of the officer are without or in excess of authority;
e. Where the prosecution is under an invalid law, ordinance or
regulation;
f. When double jeopardy is clearly apparent;
g. Where the court has no jurisdiction over the offense;
h. Where it is a case of persecution rather than prosecution;
i. Where the charges are manifestly false and motivated by lust for
vengeance;
j. When there is clearly no prima facie case against the accused and a
motion to quash on that ground has been denied; and
k. Preliminary injunction has been issued by the SC to prevent the
threatened unlawful arrest of petitioners (People of the Philippines vs.
Joseph V. Grey, G.R. No. 180109, July 26, 2010).
2. [] GR: The long-standing doctrine that writs of injunction or prohibition
will NOT lie to restrain a criminal prosecution for the reason that public
interest requires that criminal acts be immediately investigated and
prosecuted for the protection of society (Domingo v. Sandiganbayan, G.R.

No. 109376, January 20, 2000).
*XPNs:
a. To prevent the use of the strong arm of the law in an oppressive and
vindictive manner (Ibid.);
b. To afford adequate protection to constitutional rights (Ibid.);
c. For the orderly administration of justice (Hernandez v. Albano, G.R.
No. 19272, January 25, 1967);
d. To avoid multiplicity of actions (Ibid.);
e. In proper cases, because the statute relied upon is unconstitutional, or
was "held invalid (Ibid.);
f. When the acts of the officer are without or in excess of authority
(Planas v. Gil, G.R. No. L-46440, January 18, 1939); and
g. When the court has no jurisdiction over the offense (Lopez v. City
Judge, G.R. No. L-25795, October 29, 1966).
——————————————————————————————
5.2. Prosecution of offenses [Rule 110]
5.2.1. Criminal actions, how instituted 72

5.2.2. Who may file them, crimes that cannot be prosecuted de officio 72
5.2.3. Criminal actions, when enjoined 76
5.2.4. Control of prosecution 81
5.2.5. Sufficiency of complaint or information 81
5.2.6. Designation of offense 83
5.2.7. Cause of the accusation 85
5.2.8. Duplicity of the offense; exception 86
5.2.9. Amendment or substitution of complaint or information 87
Amendment vs. Substitution 88
Amendment 89
Substitution 89
5.2.10. Venue of criminal actions 93
5.2.11. Intervention of offended party 94
——————————————————————————————
5.2.1. Criminal actions, how instituted

1. Criminal action: One by which the State prosecutes a person for an act or
omission punishable by law.
2. Institution of criminal actions—Criminal actions are instituted by: (****NB:
the criminal action is instituted not necessarily at the time of the filing of the
complaint/information in court. It depends on WON the case requires
preliminary investigation)****
a. WHEN PI IS REQUIRED: Filing the complaint90 with the
proper officer for the purpose of conducting the requisite preliminary
investigation for offenses where a preliminary investigation is required;
*NB: Starting 3 October 2005, MTC judges can no longer conduct PI.
[] When is PI required? If the penalty imposable is at least (4-2-
1) 4 years, 2 months and 1 day.
b. WHEN NO PI IS REQUIRED: For all other offenses, by filing the
complaint or information directly with the MTC and MCTC, or the
90Distinguish a Complaint from Information. (2%) SUGGESTED ANSWER: In criminal procedure, a

complaint is a sworn written statement charging a person with an offense, subscribed by the offended
party, any peace officer or other peace officer charged with the enforcement of the law violated. (Sec. 3,
Rule 110, 1985 Rules of Criminal Procedure); while an information is an accusation in writing charging a
person with an offense subscribed by the prosecutor and filed with the court. (Sec. 4, Id.)
complaint with the office of the prosecutor (Sec. 1, Rule 110). Since there is
no PI, the prosecutor will just evaluate the evidence (of the complainant and
his witnesses—no need to subpoena the defendant, which is required if PI is
needed)
******NB: For Metro Manila and other chartered cities, the complaint
shall be filed with the prosecutor regardless of the imposable penalty
(Sec. 1(b), Rule 110), while cases falling within the jurisdiction of the RTC
are always commenced by information filed by the prosecutor.
[] GR: There is no direct filing of an information or complaint
with the RTC because its jurisdiction covers offenses which require
preliminary investigation. XPN: if there is lawful warrantless arrest.
[] There is likewise no direct filing with the MeTC because in
Manila, including other chartered cities. As a rule, the complaint shall be filed
with the office of the prosecutor, unless otherwise provided by their charters. In case
of conflict between a city charter and a provision of the Rules of Court, the former,
being substantive law, prevails.
[] *******Options of the judge when the complaint or
information is DIRECTLY filed in court: he determines probable
cause91—it is called PRELIMINARY EXAMINATION (PE) by
jurisprudence, not preliminary investigation (PI). PE is judicial while PI is
executive.
91
The determination of probable cause to charge a person in court for a criminal
offense is exclusively lodged in the Executive Branch of the Government, through the
Department of Justice. Initially, the determination is done by the investigating public
prosecutor, and on review by the Secretary of Justice or his duly authorized
subordinate. The courts will respect the determination, unless the same shall be shown
to have been made in grave abuse of discretion amounting to lack or excess of
jurisdiction. (Caterpillar, Inc. v. Manolo P. Samson, G.R. No. 205972 & G.R. NO.
164352, 9 November 2016, J. Bersamin). *******[The] courts could intervene in the
determination of probable cause only through the special civil action for certiorari
under Rule 65 of the Rules of Court, not by appeal through the petition for review
under Rule 43. Thus, the Court of Appeals could not reverse or undo the findings and
conclusions on probable cause by the Secretary of Justice except upon clear
demonstration of grave abuse of discretion amounting to lack or excess of
jurisdiction committed by the Secretary of Justice. (Caterpillar, Inc. v. Manolo P.
Samson, supra.). Same principle with the Office of the Ombudsman: The discretion
of the Office of the Ombudsman in the determination of probable cause to charge a
respondent public official or employee cannot be interfered with in the absence of a
clear showing of grave abuse of discretion amounting to lack or excess of jurisdiction.
(Hilario P. Soriano v. Deputy Ombudsman For Luzon Victor C. Fernandez, GR No.
168157, 19 August 2015, J. Bersamin)
PRELIMINARY INVESTIGATION PRELIMINARY EXAMINATION
Nature: Executive Judicial

Purpose: to determine whether there is sufficient To determine probable cause and WON
ground to engender a well-founded belief that a a warrant of arrest shall be issued
crime has been committed and the respondent is
probably guilty thereof, and should be held for trial.
Finding of probable guilt leads to the filing of an Finding of probable cause leads to the
Information in court issuance of a warrant of arrest, or a
commitment order if the accused is under
custody.
It is required for cases whose imposable penalty is at Personal examination is required in cases
least 4 years, 2 months & 1 day. that did not undergo PI. But in all cases, the
judge has to conduct a personal evaluation of
the evidence.
Conducted by a prosecutor Conducted by a judge
It is MERELY INQUISITORIAL and a means of personal examination is conducted in
determining the persons who may be reasonably writing and under oath of the complainant
charged with a crime. It is NOT A TRIAL of the case and his witnesses in the form of searching
on the merits questions and answers
i. Purpose of PE: to determine probable cause and whether or

not a WARRANT OF ARREST shall be issued
*vs. purpose of PI [Sec 1, R112]: 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.
ii. Options of the judge in PE within 10 days from filing [Sec
8(b), R12]: a) personally evaluate the evidence to determine probable cause;
b) conduct personal examination in writing and under oath of the
complainant and his witnesses in the form of searching questions and answers;
c) require the submission of additional evidence within 10 days from notice,
to determine further the existence of probable cause. If he does not find
probable cause, he shall dismiss the complaint or information.
[] Why is the judge given these options? Because the case
did not undergo PI. ******Compare this to a case which undergoes PI [Sec 5,
R112]: there is no option for the judge to conduct a personal examination
of the complainant and his witnesses (because there has been a PI for that).
The judge shall only personally evaluate the resolution of the prosecutor
and its supporting evidence, and his options are: a) immediately dismiss the
case if the evidence on record clearly failed to establish probable cause; b) issue
a warrant of arrest or commitment order if he finds probable cause. In case of
doubt on the existence of probable cause, the judge may order the prosecutor to
present additional evidence within 5 days from notice and the issue must be
resolved within 30 days from the filing of the complaint/information.
[] In both cases, note that the judge does a “personal
evaluation” and may ask for additional evidence. Only in cases where there
was no PI, does the judge have option (b), supra.
iii. If the judge finds probable cause: a) he shall issue a warrant of
arrest (woa) or a commitment order if the accused has been detained; b) if
there is no need to place him under custody, he may issued summons (not
similar to summons in CivPro) instead of woa.
[] ******When a judge dismisses a cases for lack of probable
cause, the same is in the nature of a final order, not an interlocutory order,
hence, the remedy is appeal, nor certiorari [Cajipe vs. PP~]
[] ******With (a) & (b) in this number, you will now understand the two
nuances of a complaint: i) A complaint affidavit filed at the prosecutor’s
office; ii) a complaint filed directly in court [Sec 3, R110] by the offended
party, any peace officer, or other public officer charged with the enforcement
of the law violated
3. EFFECT of institution of a criminal action
*GR: It interrupts the running of the period of prescription of the
offense charged (Sec. 1, Rule 110). Notably, the aforequoted article (Art. 91,
RPC), in declaring that the prescriptive period “shall be interrupted by the
filing of the complaint or information,” does not distinguish whether the
complaint is filed for preliminary examination or investigation only or
for an action on the merits. Thus, in Francisco v. CA and People v. Cuaresma, this
Court held that the filing of the complaint even with the fiscal’s office
suspends the running of the statute of limitations (Reodica v. CA, G.R. No.
125066, July 8, 1998).
*XPN: Prescriptive periods of violations of special laws and
municipal ordinances governed by Act 3326 (An Act to Establish Periods of
Prescription for Violations Penalized by Special Laws and Municipal
Ordinances and to Provide When Prescription shall Begin to Run) shall only
be interrupted by the filing of a complaint or information in court. The filing
of a complaint with the prosecutor or the proper officer for purposes of
conducting a preliminary investigation will not interrupt the prescriptive period
(Zaldivia v. Reyes, Jr., G.R. No. 102342, July 3, 1992).
****The XPN no longer applies, i.e., filing at the ombudsman already
interrupts the running of the period. Why? MTC judges no longer conduct
preliminary investigations. [PP vs. Pangilinan 2012: There is no more
distinction between cases under the RPC and those covered by special laws
with respect to the interruption of the period of prescription.]
*****What if an Information for homicide was filed at the MTC (wrong
court). Then a MTQ was filed and sustained. Is the prescriptive period still
interrupted? YES, because mere filing of complaint for PI already interrupts
the running of the prescriptive period, what more when an Info is filed in
Court, albeit at a wrong court.
4. Condition precedent for offenses punishable by imprisonment not
exceeding 6 years: may the offended party go directly to court to file a
criminal action?
****GR: No. Before a complaint is filed in court, there should have been
a confrontation between the parties before the Lupon chairman. The
Lupon secretary must certify that no conciliation or settlement was
reached, attested to by the Lupon chairman. The complaint may also be
filed if the settlement is repudiated by the parties.
*XPNs:
a. Where the accused is under detention;
b. Where a person has otherwise been deprived of personal liberty
calling for habeas corpus proceedings;
c. Where actions are coupled with provisional remedies; and
d. Where the action may be barred by the statute of limitations.
[] Prescriptive periods of cases falling under the authority of the Lupon:
****The prescriptive period shall be suspended from the time of the filing
of complaint with the Punong Barangay which suspension shall not
exceed 60 days. The prescriptive period shall RESUME upon receipt of the
certificate of repudiation or certificate to file action (Sec. 410(c), LGC).
5.2.2. Who may file them, crimes that cannot be prosecuted de officio
1. Offense or crime that cannot be prosecuted de officio: These are crimes
or offenses which cannot be prosecuted except on complaint filed by the
offended party or if the offended party is a minor, by the parents, grandparents
or the guardian. These are also known as PRIVATE CRIMES.
2. Who may file then?
a. GR: All criminal actions initiated by complaint or information are filed by
the prosecutor.
b. ****XPNs: Private crimes which may only be prosecuted by a
complaint filed by the private offended party, i.e.: Yes, the private
offended party files a Complaint in court, not the prosecutor filing an
Information in court. *****The latter will be a ground for a MTQ—that the
officer who filed the Info has no authority to do so [Sec 3d, Rule 117].
c. XPN to XPN [PP vs. Elarde 1983]: SC allowed the filing of the
Information to accuse someone’s wife of adultery, where the husband
already filed a complaint but he went to the US and died before it was
filed in court. Hence, the prosecutor was allowed to file an Information with
the husband’s complaint attached to it.

3. Private Crimes—Instances: (CASAL-D)
a. ADULTERY92 AND CONCUBINAGE: Only the offended
spouse may file a complaint for adultery or concubinage (Sec. 5, Rule 110).93
The offended spouse cannot institute a criminal action for adultery without
including the guilty parties if both are alive; or if the offended party has
consented to the offense or pardoned the offenders (Sec. 5, Rule 110). If the
complainant has already been divorced, he can no longer file the complaint (Pilapil v.
Somera, G.R. No. 80116, June 30, 1989). This is considered as ***LACK OF
STATUS.
92 Q: Yvonne, a young and lonely OFW, had an intimate relationship abroad with a friend, Percy. Although
Yvonne comes home to Manila every six months, her foreign posting still left her husband Dario lonely so
that he also engaged in his own extramarital activities. In one particularly exhilarating session with his
girlfriend, Dario died. Within 180 days from Dario’s death, Yvonne gives birth in Manila to a baby
boy. Irate relatives of Dario contemplate criminally charging Yvonne for adultery and they hire your law
firm to handle the case.
a) Is the contemplated criminal action a viable option to bring? (2013 BAR) A: NO. Section 5 of
Rule 110 provides that the crimes of adultery and concubinage shall not be prosecuted except upon
complaint by the offended spouse. Since the offended party is already dead, then the criminal action for
adultery as contemplated by offended party’s relatives is no longer viable.
b) Is a civil action to impugn the paternity of the baby boy feasible, and if so, in what proceeding
may such issue be determined? (2013 BAR) A: YES, under Article 171 of the Family Code, the heirs of the
husband may impugn the filiation of the child in the following cases:
1. If the husband should die before the expiration of the period fixed for bringing his action;
2. If he should die after the filing of the complaint, without having desisted therefrom; or
3. If the child was born after the death of the husband.
Since Dario is already dead when the baby boy was born, his heirs have the right to impugn the
filiation of the child. Consequently, the heirs may impugn the filiation either by a direct action to impugn
such filiation or raise the same in a special proceeding for settlement of the estate of the decedent. In
the said proceeding, the Probate court has the power to determine questions as to who are the heirs of
the decedent (Reyes v. Ysip, et al., G.R. No. L-7516, May 12, 1955; Jimenez v. Intermediate Appellate
Court, G.R. No. 75773, April 17, 1990).
Incidentally, the heirs can also submit the baby boy for DNA testing (Rules on DNA Evidence,
A.M. No. 6-11-5-SC) or even blood-test in order to determine paternity and filiation.
In Jao v. Court of Appeals, G.R. No. L-49162, July 28, 1987, the Supreme Court held that
*****blood grouping tests are conclusive as to non-paternity, although inconclusive as to paternity.
The fact that the blood type of the child is a possible product of the mother and alleged father does not
conclusively prove that the child is born by such parents; but, if the blood type of the child is not
the possible blood type when the blood of the mother and that of the alleged father are cross matched,
then the child cannot possibly be that of the alleged father.
93 Magdalena Campos, a married woman and Santiago Mendoza, a married man, were indicted for adultery
in an Information filed by the Prosecutor of Bataan upon a sworn complaint filed by Mrs. Cynthia
Mendoza, wife of Santiago. Both accused filed a motion to quash alleging that the trial court has not
acquired Jurisdiction over the case because no complaint has been filed by the husband of Magdalena
Campos. They cite Section 5, Rule 110 of the Revised Rules of Court which provides, among others, that
the crime of adultery "...
shall not be prosecuted except upon a complaint filed by the offended spouse." How would you resolve the
motion to quash?Answer:
Motion to quash granted. The offended spouse who should have filed the sworn complaint
for adultery was the husband of Magdalena Santos, not the wife of Santiago Mendoza. Adultery is
committed by any married woman who shall have sexual intercourse with a man not her husband and by the
man who has carnal knowledge of her knowing her to be married. (Art. 333, RPC)
b. SEDUCTION, ABDUCTION AND ACTS OF

LASCIVIOUSNESS (SAL); On the following parties may file for SAL:
i. The offended party;
ii. Parents of the offended party;
iii. Grandparents of the offended party; or
iv. Guardian of the offended party (Sec. 5, Rule 110).
*Such crimes cannot be prosecuted if the offender has been
expressly pardoned by any of the abovementioned parties (Sec. 5, Rule 110).
[] ****Instances when the State may initiate the action for
seduction, abduction or acts of lasciviousness in behalf of the offended party:
a) When the offended party dies or becomes incapacitated (****NB: not
minority!) before a complaint is filed; or
b) The offended party has no known parents, grandparents or guardian
(Sec. 5, Rule 110). This is pursuant to the doctrine of PARENS PATRIAE.
[] See filing of SAL done to a minor in the next number, infra.
c. Criminal actions for DEFAMATION imputing the
abovementioned offenses (Sec. 5, Rule 110).
4. Persons who may file a Complaint on cases of unlawful acts in RA 7610
(Special Protection of Children against Child Abuse, Exploitation and
Discrimination Act)
a. Offended party
b. Parents or guardians
c. ****Ascendant or collateral relative within the THIRD degree of
consanguinity
d. Officer, social worker or representative of a licensed child-caring
institution
e. Officer or social worker of the Department of Social Welfare and
Development
f. Barangay chairman; or
g. ****At least 3 concerned, responsible citizens where the violation
occurred (Sec. 27, RA 7160).
5. Filing a complaint by a minor for Seduction, Abduction, or Acts of
Lasciviousness
a. ******GR: The offended party, even if a minor, has the right to
initiate the prosecution of such offenses independently94 of his parents,
94[] Bar 2000: Fey, a minor orphan was subjected to acts of lasciviousness performed by her uncle
Polo. She informed her grandparents but was told not to file charges. Fey now asks you as counsel how she
could make her uncle liable: a) What would your advice be?
****The minor may file the complaint independently of her grandparents, because she is not
incompetent or incapable of doing so upon grounds other than her minority (Sec. 5, Rule 110); b)
Suppose the crime committed against Fey by her uncle is rape, witnessed by your mutual friend Isay. But
this time, Fey was prevailed upon by her grandparents not to file charges. Isay asks you if she can initiate the
grandparents or guardian.
b. XPNs: If the minor is:
i. Incompetent; or
ii. Incapable of doing so (Sec. 5, Rule 110)
*NB: If the minor fails to file a complaint, his parents,
grandparents or guardian may file the same. ****The right granted to the
latter shall be exclusive and successive in the order herein provided (Sec. 5,
Rule 110).
5. Pardon vs. Consent. These are defenses for private crimes [Sec 5, Rule 110:
implied consent/pardon could be a defense]
Pardon Consent
Refers to past acts Refers to future acts
In order to absolve the accused from liability,

In order to absolve the accused from liability, it
it is sufficient even if granted only to the
must be extended to both offenders
offending spouse
6. Parties who can give pardon

Crimes Parties who can give pardon
Concubinage and Only the offended spouse, not otherwise incapacitated.

adultery
Seduction, 1. The offended minor, if with sufficient discretion, can validly pardon the
abduction and accused by herself if she has no parents or where the accused is her own father
acts of and her mother is dead;
lasciviousness: 2. The parents, grandparents or guardian of the offended minor, in that
order, extend a valid pardon in said crimes without the conformity of the
offended party, even if the latter is a minor; or
3. If the offended woman is of age and not otherwise incapacitated, only
she can extend a valid pardon.
[] Pardon given by a minor in cases of seduction, abduction or acts of

lasciviousness: ****The pardon to be effective as to prevent prosecution of the
accused must be given by both parents and the offended party (U.S. v.
Luna, G.R. No. 892, September 11, 1902).
****The pardon shall be given before filing of the criminal complaint
in court. Pardon effected after the filing of the complaint in court does not
prohibit the continuance of the prosecution of the offense.
complaint against Polo. Would your answer be the same? Since rape is now classified as a crime against
persons under the Anti-Rape Law of 1997 or RA 8353, Isay can initiate the complaint against Polo.
[] Subsequent marriage95 of the accused and offended party

*****GR: The subsequent marriage between the party and the
accused, even after the filing of the complaint, extinguishes the criminal
liability of the latter, together with that of the co-principals, accomplices and
accessories.
*XPNs:
i. Where the marriage was invalid or contracted in bad faith in
order to escape criminal liability;
ii. In “private libel” or the libelous imputation of the
commission of the crimes of concubinage, adultery, seduction, abduction, rape or acts of
lasciviousness and in slander by deed; and
iii. In multiple rape, in so far as the other accused in the other
acts of rape committed by them are concerned.
7. EFFECT OF DESISTANCE of the offended party in private crimes:
****It does not bar the People from prosecuting the criminal action, but it
operates as a WAIVER of the right to pursue CIVIL indemnity.
*GR: Since it is the State who is the real offended party in a criminal
case, it is the prosecutor or the Ombudsman as the case may be, or the Solicitor
General in cases before the CA or SC, who has the personality and authority to
prosecute and file a petition in behalf of the State.
****XPN: An offended party in a criminal case has sufficient
personality to file a special civil action for certiorari, even without the
imprimatur of the State. In so doing, the complainant should not bring the
action in the name of the People of the Philippines. The action may be
prosecuted in the name of the said complainant (Perez v. Hagonoy Rural
Bank, Inc., G.R. No. 126210, March 9, 2000).
8. EFFECT OF DEATH of the offended party to the criminal action
95Q: Mariano was convicted by the Regional Trial Court for raping Victoria and meted the penalty of
reclusion perpetua. While serving sentence at the National Penitentiary, Mariano and Victoria were married.
Mariano filed a motion in said court for his release from the penitentiary on his claim that under Republic
Act no. 8353, his marriage to Victoria extinguished the criminal action against him for rape, as well as the
penalty imposed on him. However, the court denied the motion on the ground that it had lost jurisdiction
over the case after its decision had become final and executory. (2005 Bar Question) SUGGESTED
ANSWER: No. The court can never lose jurisdiction so long as its decision has not yet been fully
implemented and satisfied. Finality of a judgment cannot operate to divest a court of its jurisdiction to
execute and enforce the judgment. (Echegaray v. Secretary of Justice, 301SCRA 96 [1999]). Besides, there is
a supervening event which renders execution unnecessary. (So v. 388 SCRA 107 [2002]).
[] What remedy/remedies should the counsel of Mariano take to secure his proper and most
expeditious release from the National Penitentiary? Explain. (7%) To secure the proper and most
expeditious release of Mariano from the National Penitentiary, his counsel should file (a) a petition for
habeas corpus regarding the illegal confinement of Mariano, or (b) a motion in the court which
convicted him, to nullify the execution of his sentence or the order of his commitment on the ground
that a supervening development had despite the finality of the judgment occurred (Melo v. People, 85
Phil. 766 11950]).
a. If prior to the filing of a case in court, a complaint was already filed

by the offended party with the prosecutor, the death of the complainant will not
be sufficient justification for the dismissal of the information (People v.
Ilarde, G.R. No. L-57288, April 30, 1984); or
b. During the pendency of the case, the death of the complainant will
not extinguish the criminal liability of the accused whether total or partial
(Donio-Teves v. Vamenta, G.R. No. L-38308, December 26, 1984).
5.2.3. Criminal actions, when enjoined

*supra
5.2.4. Control of prosecution

1. Prosecution of criminal actions
*GR: The public prosecutor96 shall prosecute, direct and control all
criminal actions commenced by a complaint or information.
****XPN: The private prosecutor (private counsel) may prosecute the
case provided that: (this is revocable anytime)
a. The public prosecutor has heavy work schedule; or
b. There is lack of public prosecutors;
c. The private prosecutor must be authorized in writing by the Chief
Prosecution Office or Regional State Prosecution; and
d. Such will be subject to the court’s approval (Sec. 5, Rule 110).
[] Prescription of the authority of the private prosecutor: The authority
of the private prosecutor shall continue until the end of the trial unless the
authority is revoked or withdrawn (Sec. 5, Rule 110).
2. Matters within the control and supervision of the PROSECUTOR
a. What charge to file;
b. Whom to prosecute;
c. Manner of prosecution; and
d. *****Right to withdraw information before arraignment even
without notice and hearing.97 NB: Once a complaint or information is filed in
96 After the DOJ Secretary granted accused's Petition for Review, the prosecution filed a motion to
withdraw the Information before the trial court. The judge therein denied the same. The trial prosecutor
manifested before the judge that he can no longer prosecute the case because he is only an alter ego of
the DOJ Secretary who ordered him to withdraw the Information. The case should therefore be prosecuted by:
(2012 BAR)
a. aDOJstateprosecutor.
b. privateprosecutor,ifany.
c. trial prosecutor of the pairing court.
d. the same trial prosecutor who manifested his inability to prosecute the case.
97
[] Bar 2002: After the requisite proceedings, the Provincial Prosecutor filed and Information for
homicide against Peter. The latter however, timely filed a Petition for Review of the Resolution
of the Provincial Prosecutor with the Secretary of Justice who, in due time, issued a Resolution
Court, any disposition of the case as its dismissal or the conviction or

acquittal of the accused rests in the sound discretion of the Court. Although
the fiscal retains the direction and control of the prosecution of criminal cases
even while the case is already in Court, he cannot impose his opinion on the
trial court. The determination of the case is within its exclusive jurisdiction and
competence.98 A motion to dismiss the case filed by the fiscal should be
addressed to the Court who has the option to grant or deny the same. It does not
matter if this is done before or after the arraignment of the accused or that
the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation (Crespo v.
Mogul, G.R. No. L-53373 June 30, 1987).
3. Matters within the control of the COURT after the case is filed
a. Suspension of arraignment;
b. Reinvestigation;
c. Prosecution by the fiscal;
d. Dismissal of the case; and
e. ****Downgrading of offense or dropping of accused even before plea.
4. Limitations on the Court’s power of control
a. Prosecution is entitled to notice of hearing;
b. Prosecution’s stand to maintain prosecution should be respected
by the court
reversing the resolution of the Provincial Prosecutor and directing him to withdraw the
Information. Before the Provincial Prosecutor could comply with the directive of the Secretary of
Justice, the court issued a warrant of arrest against Peter. The Public Prosecutor filed a Motion
to Quash the Warrant of Arrest and to withdraw the Information, attaching to it the Resolution
of the Secretary of Justice. The court denied the motion.
[] Was there a legal basis for the court to deny the motion? YES.****The court is not
bound by the Resolution of the Secretary of Justice. This is because once an information is
filed in court, any disposition of the case as its dismissal or the conviction or acquittal of
the accused rests in the sound discretion of the court (Crespo v. Mogul, G.R. No. L-53373 June
30, 1987).
[] B. If you were the counsel for the accused, what remedies, if any, would you pursue?
(2003 Bar Question) *****If I were the counsel for the accused, I would surrender the accused
and apply for bail because the offense is merely homicide, a non-capital offense. At the pre-
trial, I would make a stipulation of facts with the prosecution which would show that no
offense was committed.
98Q: After an information for homicide was filed by the city prosecutor in the Regional Trial Court of
Quezon City, the accused asked the prosecutor for a reinvestigation, which he granted. After the
reinvestigation, the prosecutor filed a motion in court to withdraw the information having found no
sufficient evidence to continue with the prosecution of the case. Considering that the prosecutor has the
direct control and supervision over the prosecution of the case, are the steps undertaken by him proper
under the circumstances? Decide with reasons. (1990 Bar Question) Answer:
Yes, the prosecutor may file a motion to withdraw the information. However the motion may be
denied by the Court, in which case the prosecutor will be required to present whatever evidence he has.
(Crespo v. Mogol 151 SCRA 462) If the Court gravely abuses its discretion, certiorari lies. (Quizo v.
Sandiganbayan, 149 SCRA 110)
c. ****The court must make its own independent assessment of

evidence in granting or dismissing motion to dismiss. Otherwise, the judgment is
void.
d. Court has authority to review the Secretary of Justice’s
recommendation and reject it if there is grave abuse of discretion (Villanueva v.
Secretary of Justice, G.R. No. 162187, November 18, 2005).
5.2.5. Sufficiency of complaint or information

1. Information v. Complaint*****
INFORMATION COMPLAINT
Information is an accusation in writing charging Complaint is a sworn written statement

a person with an offense, subscribed by the charging a person with an offense, subscribed by
prosecutor and filed by him with the court (Sec. the offended party, any peace officer, or
4, Rule 110). ****Not sworn because the other public officer charged with the
prosecutor is doing it under the oath of his office enforcement of the law violated (Sec. 3).
[] Two nuances of a complaint: i) A complaint affidavit filed at the

prosecutor’s office; 2. a complaint filed directly in court [Sec 3, R110] by the
offended party, any peace officer, or other public officer charged with the
enforcement of the law violated. The latter refers to the complaint filed in
court for the commencement of the criminal prosecution, i.e., private crimes.
2. FORM of a valid complaint or information
a. In writing;
b. In the name of the People of the Philippines; and
c. Against all persons responsible for the offense involved (Sec. 2, Rule
110).
******In case of variance between the complaint filed by the offended party and
the information in crimes against chastity, the complaint controls.
3. SUFFICIENCY of a complaint or Information—-It is sufficient if it states
the:
a. Name of the accused;
*The complaint or information must state the name and
surname of the accused or any appellation or nickname by which he has
been or is known. If the name cannot be ascertained, he must be described under a
fictitious name with a statement that his true name is unknown (Sec. 7, Rule 110). If
the true name of the accused is thereafter disclosed or appears in some other manner, such
true name shall be inserted in the information or complaint in record (Ibid.).
*When an offense is committed by more than one person, all of them
shall be included in the complaint or information (Sec. 6, Rule 110).
****Mistake in the name of the accused: A mistake in the name of
the accused is not equivalent and does not necessarily amount to a
mistake in the identity of the accused especially when sufficient evidence is adduced
to show that the accused is pointed to as one of the perpetrators of the crime (People v.
Amodia, G.R. No. 173791, April 7, 2009).
b. Designation of the offense given by the statute;
c. Acts or omissions complained of as constituting the offense;
d. Name of the offended party;
*The complaint or information must state the name and
surname of the persons against whom or against whose property the offense
was committed or any appellation or nickname by which such person has
been or is known and if there is no better way of identifying him, he must be
described under a fictitious name.
*In crimes against property, if the name of the offended party is unknown,
the property must be described with such particularity as to properly identify
the particular offense charged.
*If the true name of the offended party is thereafter disclosed or ascertained,
the court must cause such true name to be inserted in the complaint or
information in record.
*If the offended party is a juridical person, it is sufficient to state its
name, or any name or designation by which it is known or may be identified, without
need of averring that it is a juridical person (Sec. 12, Rule 110).
e. Approximate date of the commission of the offense; and
*Particularity of the date of the commission of the offense in the
complaint or information
- GR: It is not required. It suffices that the allegation
approximates or be as near the actual date when the offense was committed (Sec.
11, Rule 110).
- XPN: If the date of the commission of the offense constitutes an essential
element of the offense (e.g. infanticide, abortion, bigamy) (Sec. 11, Rule
110). The remedy against an indictment that fails to allege the time of
commission of the offense with sufficient definiteness is a motion for bill of
particulars under Sec. 10, Rule 116; the failure to move for specification or
quashal of the information on any of the grounds provided by the Rules
deprives the accused of the right to object to evidence which could be lawfully
introduced and admitted under an information of more or less general terms but which
sufficiently charges the accused with a definite crime. (People v. Elpedes,
G.R. Nos. 137106-07, January 31, 2001).
f. Place where the offense was committed (Sec. 6, Rule 110).
*GR: The complaint or the information is sufficient if it can be
understood from its allegation that the offense was committed or some its
essential ingredients occurred at some place within the jurisdiction of the court.
*XPN: When the place of commission constitutes an essential
element of the offense charged or is necessary for its identification (e.g.
trespass to dwelling, destructive arson, robbery in an inhabited place) (Sec.

10, Rule 110).
5.2.6. Designation of offense

1. The designation of the offense given by the statute must be stated in the
complaint or information with the averment of acts or omissions constituting
the offense and specify the qualifying and aggravating99 circumstances. If
there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it (Sec. 8, Rule 110). *****NB: any
qualifying and aggravating circumstance not mentioned/alleged in the
Information, even if proven during trial without objection, cannot be
appreciated. EG: treachery was not alleged but it was proven during trial—the
court cannot consider it in the judgment [PP vs. Mendoza: even if there is no
objection, it is the Constitution itself that objects for the accused! It is a
violation of the constitutional right of the accused to be informed of the
nature and cause of the accusation against him]. Now, this is different from
a civil case, where something that is not alleged in the complaint but proven
during trial without objections, the same is as if it were part of the pleading.
[] PP vs. Aure 2011: a woman who was raped went to CIDG for help,
but the policeman who attended to her also raped her. The judge sentenced
him to death, because it was committed by a law enforcement officer, taking
advantage of his position. But SC said the penalty should only be reclusion
perpetua because it was not alleged in the information that he is a policeman.
[] Q: Accused was charged with the offense of Estafa through
Falsification of Public Documents under Art. 315 in relation to Art. 171 of
the RPC in an Information filed by the prosecutor before the RTC of Quezon
City. Accused assailed the Information claiming that the Information is invalid
because the word "fraud" or "deceit" was not alleged in the Information.
Decide the case: Any error in the Information, with regard to the specification
of the particular mode of estafa, allegedly committed by petitioners will not
result in its invalidation because the allegations therein sufficiently
informed petitioners that they are being charged with estafa through falsification of
public document.
The Revised Rules of Criminal Procedure provides that an information
shall be deemed sufficient if it states, among others, the designation of the
offense given by the statute and the acts or omissions complained of as
99Q: The prosecution filed an information against Jose for slight physical injuries alleging the acts
constituting the offense but without anymore alleging that it was committed after Jose's unlawful
entry in the complainant's abode. Was the information correctly prepared by the prosecution? Why? (5%)
(2001 Bar Question)
SUGGESTED ANSWER: No. The aggravating circumstance of unlawful entry in the
complainant's abode has to be specified in the information; otherwise, it cannot be considered as
aggravating. (Sec. 8 of Rule 110, Revised Rules of Criminal Procedure)
constituting the offense. ****However, the Court has clarified in several cases
that the designation of the offense, by making reference to the section or
subsection of the statute punishing, it is not controlling; what actually determines
the nature and character of the crime charged are the facts alleged in the
information (Batulanon v. People, G.R. No. 139857, September 15, 2006).
2. CONFLICT between the designation of the crime and the recital of the
facts constituting the offense: The title of the information or designation of
the offense is not controlling. It is the actual facts recited in the information
that determines the nature of the crime (Santos v. People, G.R. No. 77429,
January 29, 1990).
[] May the accused be convicted of a crime more serious than that
named in the information?
*GR: Yes. The accused may be convicted of a crime more serious than
that named in the title or preliminary part if such crime is covered by the
facts alleged in the information and its commission is established by evidence
(Buhat v. CA, G.R. No. 120365, December 17, 1996).
***XPN: An accused could not be convicted under one act when he is
charged with a violation of another if the change from the statute to the other:
a. Involves change in the theory of the trial;
b. Requires of the defendant a different defense; or
c. Surprises the accused in any way (U.S. v. Panlilio, G.R. No. L-9876,
December 8, 1914).
5.2.7. Cause of the accusation

1. The acts or omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used in the statute
but in terms sufficient to enable a person of common understanding to
know what the offense is being charged as well as the qualifying and
aggravating circumstances (Sec. 9, Rule 110).
[] Statement of the qualifying and aggravating circumstances in the
Information: ****The qualifying and aggravating circumstances must be
specified in the information. They must not only be proven but they must
also be alleged, otherwise, they should not be considered (Catiis v. CA, G.R.
No. 153979, February 9, 2006).
2. Purposes of requiring that EVERY ELEMENT must be alleged
a. To enable the court to pronounce the proper judgment;
b. To furnish the accused with such a description of the charge as to
enable him to make a defense; and
c. As a protection against further prosecution for the same cause
(Herrera, 2007).
3. Effect when one or more elements of the offense have NOT been
alleged in the Information: ****The accused cannot be convicted of the
offense charged, even if the missing elements have been proved during
the trial. Even the accused’s plea of guilty to such defective information will not
cure the defect, nor justify his conviction of the offense charged.
4. Negative Averments
*GR: Where the statute alleged to have been violated prohibits
generally acts therein defined and is intended to apply to all persons
indiscriminately, but prescribes certain limitation or exceptions from its
violation, the complaint or information is sufficient if it alleges facts which
the offender did as constituting a violation of law, without explicitly negating the
exception, as the exception is a matter of right which the accused has to
prove.
*XPN: Where the statute alleged to have been violated applies only to
specific classes of persons and special conditions and the exemptions from
its violations are incorporated in the language defining the crime that the
ingredients of the offense cannot be accurately and clearly set forth if the
exemption is omitted, then the indictment must show that the accused
does not fall within the exemptions (Herrera, 2007).
3. Matter/s to be alleged if the crime is “committed in relation to his office”:
Mere allegation in the information that the offense was committed by the
accused public officer in relation to his office is not sufficient. The phrase is
merely “a conclusion of law,” not a factual averment that would show close
intimacy between the offense charged and the discharge of the accused’s
official duties. ****What is controlling is the specific actual allegations in
the information (Lacson v. Executive Secretary, G.R. No. 128006, January 20,
1999).
****An offense is deemed committed in relation to public office when
the “office” is a constituent element of the offense. The test is whether the
offense cannot exist without the office (Crisostomo v. Sandiganbayan, G.R.
No. 152398, April 14, 2005). The offense need not be connected with official
duties. It is enough that it is in relation to office (Lecaroz v. Sandiganbayan,
G.R. No. 130872, March 25, 1999).
5.2.8. Duplicity of the offense; exception

1. GR: A complaint or information must charge only one offense. Examples:
a. You cannot put robbery and estafa in one Info
b. Each count of rape is a single offense, hence file separate Info for
each
2. XPN: ****When the law prescribes a single punishment for various
offenses (Sec. 13, Rule 110), e.g.:
a. Complex crimes [Art 48 RPC]

i. when a single act produces two or more grave or less grave
felonies; EG: Use of one handgrenade produced two crimes: homicide and
frustrated homicide, hence, one Info only, but if a gun was used and four
bullets came out inflicting various offenses, say 4 bullets—there should be four
Info! What if the accused used an automatic weapon, say in one press three
bullets come out? File three Info because it is only the mechanism (automatic)
that varied, still three bullets came out injuring three different persons. And if
two unlicensed firearms were taken in a raid, file two Informations because the
penalty for a 45 caliber pistol is different from that of a 22 caliber pistol.
*But in rape, there will be three separate Informations if the
acccused rested in between the three acts of rape—there are three crimes, he
only rested; However, in PP vs. Aaron, three acts were performed but they
were all considered to be part of a single act of rape because he only changed
positions (no resting)—he still satisfied himself only once.
ii. one offense is a necessary means to committing the other
offense; EG: malversation through falsification of a public document;
****Now, if there was murder using illegal firearms, there should only be one
Information for Murder. Why? Under the firearms law, the use if illegal
firearms is considered merely as an aggravating circumstance. On the other
hand, in rebellion using illegal firearms, the latter is absorbed in the crime of
rebellion (not an aggravating circumstance) because rebellion necessarily means
using violence and not registering the arms used for such act.
b. Special complex crimes—the law provides a single penalty; EG: Rape
with homicide; Kidnapping with rape
c. Continuous crimes or delicto continuado;
d. Crimes susceptible of being committed in various modes; and
e. Crimes of which another offense is an ingredient.
3. NB: Should there be duplicity of offense in the information unless a single
punishment for various offenses is prescribed, ****the accused must move
for the quashal of the same before arraignment (Sec. 3, Rule 117). Otherwise,
he is deemed to have waived the objection and may be found guilty of as
many offenses as those charged and proved during the trial (Sec. 3, Rule 120).
****Ground for MTQ [Sec 3(f), Rule 117]: more than one offense is
charged. If you do not file such, it is deemed as a waiver. If the accused failed
to object to it before trial, the court may convict him of as many offenses as are
charged and proved, and impose on him the penalty for each offense, setting
out separately the findings of fact and law in each offense [Sec 3, Rule 120].
5.2.9. Amendment or substitution of complaint or information

Amendment vs. Substitution

[] Amendment vs. Substitution100*****
Amendment Substitution
May involve either formal or substantial changes. Involves substantial change from the
original charge.
Amendment before the plea is entered can be effected It must be with leave of court as the
without leave of court. original information has to be dismissed.
An amendment as to form will not require another Substitution of the information entails
preliminary investigation and retaking of plea of another preliminary investigation
the accused. and plea to the new information.
An amended information refers to the same offense Requires or presupposes that the new
charged in the original information or to an offense information involves a different
which necessarily includes or is necessarily offense which does not include or is
included in the original charge, hence substantial not necessarily included in the original
amendments to the information after the plea has been charge; hence the accused cannot
taken cannot be made over the objection of the claim double jeopardy.
accused, for if the original would be withdrawn, the accused
could invoke double jeopardy.
Amendment
1. Matters subject to amendment: Only valid information may be amended.
An information filed before the effectivity of the law punishing the offense may not be
amended after the law had come into effect (Herrera, 2007).
2. Tests to determine the propriety of amendment after plea
a. Whether a defense under the information as it originally stood would
be available after the amendment is made; and
b. Whether any evidence defendant might have would be equally
applicable to the information in the one form as in the other. An amendment
to an information which does not change the nature of the crime alleged
therein does not affect the essence of the offense or cause surprise or
deprive the accused of an opportunity to meet the new averment had each
been held to be one of form and not of substance (Ricarze v. CA, G.R. No.
160451, February 9, 2007).
100 Q: Within the context of the rule on Criminal Procedure, distinguish an amendment from a substitution
of an information. (1994 Bar Question) Answer:
An amendment may be made in substance and form, without leave of court, at any time before
an accused pleads, and thereafter and during the trial as to all matters of form, by leave and at the
discretion of the court, when the same can be done without prejudice to the rights of the accused.
Substitution may be made if it appears at any time before Judgment that a mistake has been made in
charging the proper offense, in which case, the court shall dismiss the complaint or information upon
filing of a new one charging the proper offense in accordance with Rule 119, Sec. 11, provided that the
accused would not be placed thereby in double jeopardy and may also require the witnesses to give bail
for their appearance at the trial. (Sec. 14, Rule 110; Teehankee. Jr. v. Madayag, 207 SCRA 134)
*After plea, by leave and at the discretion of the court, amendments in

form, but not substance may be allowed as long as it will not prejudice the
accused.
3. FORMAL AMENDMENT—A formal amendment is made when:
a. It neither affects nor alters the nature of the offense charged; or
b. The charge does not deprive the accused of a fair opportunity to
present his defense; or
c. It does not involve a change in the basic theory of the prosecution.
[] The following have been held to be mere formal amendments:
a. New allegations which relate only to the range of the penalty that
the court might impose in the event of conviction;
b. An amendment which does not charge another offense different or
distinct from that charged in the original one;
c. Additional allegations which do not alter the prosecution’s
theory of the case so as to cause surprise to the accused and affect the form
of defense he has or will assume;
d. An amendment which does not adversely affect any substantial
right of the accused; and
e. An amendment that merely adds specifications to eliminate
vagueness in the information and not to introduce new and material facts,
and merely states with additional precision something which is already
contained in the original information and which adds nothing essential for
conviction for the crime charged (Ricarze v. CA, G.R. No. 160451, February
9, 2007).
[] Effect of a formal amendment: There is no need for another
preliminary investigation and retaking of the plea of the accused if such
were already conducted.
4. SUBSTANTIAL AMENDMENT: There is an amendment in substance
where it covers matters involving the recital of facts constituting the offense
charged and determinative of the jurisdiction of the court.
****After arraignment, a substantial amendment is proscribed except if
the same is beneficial to the accused (Ibid.). Substantial amendment after the plea has
been taken cannot be made over the objection of the accused, for if the original
would be withdrawn, the accused could invoke double jeopardy (Pacoy v.
Cajical, G.R. No. 1574772, September 28, 2007).
[] Q: An Information for Homicide was filed in the RTC against
petitioner. Upon arraignment, petitioner, duly assisted by counsel de parte,
pleaded not guilty to the charge of Homicide. However, on the same day
and after the arraignment, the respondent judge issued another Order
directing the trial prosecutor to correct and amend the Information to
Murder in view of the aggravating circumstance of disregard of rank
alleged in the Information which public respondent registered as having qualified the
crime to Murder. Acting upon such Order, the prosecutor entered his
amendment by crossing out the word “Homicide” and instead wrote the
word “Murder” in the caption and in the opening paragraph of the
Information. The accusatory portion remained exactly the same as that of
the original Information for Homicide. Petitioner argued that the amendment
and/or correction ordered by the respondent judge was substantial; and under
Sec. 14, Rule 110 of the Revised Rules of Criminal Procedure, this cannot be
done, since petitioner had already been arraigned and he would be placed in
double jeopardy. Decide the case: ****In the present case, the change of the
offense charged from Homicide to Murder is merely a formal amendment
and not a substantial amendment or a substitution. There was NO
CHANGE in the recital of facts constituting the offense charged or in the
determination of the jurisdiction of the court.
Sec. 14, Rule 110 also provides that in allowing formal amendments in
cases in which the accused has already pleaded, it is necessary that the
amendments do not prejudice the rights of the accused. ****The TEST of
whether the rights of an accused are prejudiced by the amendment of a
complaint or information is whether a defense under the complaint or
information, as it originally stood, would no longer be available after the
amendment is made; and when any evidence the accused might have
would be inapplicable to the complaint or information. Since the facts alleged
in the accusatory portion of the amended Information are identical with those
of the original Information for Homicide, there could not be any effect on the
prosecution's theory of the case; neither would there be any possible prejudice
to the rights or defense of petitioner (Pacoy v. Cajigal, G.R. No. 157472,
September 28, 2007).
5. PROCEDURE for amendment*****Summary:
a. BEFORE PLEA: When is amendment a matter of right? GR:
anytime before plea/arraignment, formal and substantial amendments can
be made without leave of court. XPN: Leave of court is necessary upon
motion by the prosecutor with notice to the accused in two instances when
making a substantial amendment: a) it downgrades the nature of the offense
charged; or b) excludes any accused from the complaint or information(see
table, infra). What it if upgrades the nature of the offense or includes an
accused? No need for leave of court. NB:
b. AFTER PLEA: Now if there is already a plea, amendment is only as
to form and always with leave of court and without causing prejudice to the rights
of the accused—no substantial amendment allowed.
******Caveat! [Pacoy vs. Cajigal]: The title of in the Info was
Homicide, but the allegations include qualifying circumstances to make
it Murder. Homicide was crossed out and changed to Murder. SC said that
there was no substantial change involved, only change as to form. Why? The
nature of the case is determined by the allegations in the Information, not
by its title.*****
When Made Kind of amendment to be made How amendment is made
Before plea 1. Formal amendment Without leave of court

2. Substantial amendment
Substantial amendment which: a) 1. Upon a motion by the
Downgrades the nature of the offense prosecutor;
charged; or b) Excludes any accused from 2. With notice to the accused; and
the complaint or information 3. With leave of court
After plea Formal amendment With leave of court; and without
and during
the trial causing prejudice to the rights of
the accused (Sec. 14, Rule 110).
c. BEFORE PLEA: Amendment in the Information which

downgrades101 the nature of the offense (or excludes102 any accused): The
prosecution should file a motion for leave of court with103 notice to the
offended party, even before arraignment.104 This is for the protection of the
101 Leave of court is required to amend a complaint or information before arraignment if the amendment
__________. (2013 BAR)
(A) upgrades the nature of the offense from a lower to a higher offense and excludes any of the accused
(B) upgrades the nature of the offense from a lower to a higher offense and adds another accused
(C) downgrades the nature of the offense from a higher to a lower offense or excludes any accused
(D) downgrades the nature of the offense from a higher to a lower offense and adds another accused
(E) All the above choices are inaccurate.
102 A. D and E were charged with homicide in one information. Before they could be arraigned, the
prosecution moved to amend the information to exclude E therefrom. Can the court grant the motion
to amend? Why? (2%) Yes, provided notice is given to the offended party and the court states its
reasons
for granting the same. (Rule 110, sec. 14).
B. On the facts above stated, suppose the prosecution, instead of filing a motion to amend,
moved to withdraw the information altogether and its motion was granted. Can the prosecution re-file the
information although this time for murder? Explain (3%) Yes, the prosecution can re-file the information
for murder in substitution of the information for homicide because no double jeopardy has as yet
attached. [Galvez v. Court of Appeals, 237 SCRA 685 (1994)].
103 Q: Amando was charged with frustrated homicide. Before he entered his plea and upon the advice of his
counsel, he manifested his willingness to admit having committed the offense of serious physical injuries.
The prosecution then filed an amended information for serious physical Injuries against Amando. What
steps or action should the prosecution take so that the amended information against Amando which
downgrades the nature of the offense could be validly made? Why? (5%) (2001 Bar Question)
SUGGESTED ANSWER: In order that the amended information which downgrades the nature of
the offense could be validly made, the prosecution should file a motion to ask for leave of court with notice
to the offended party. (Sec. 14 of Rule 110, Revised Rules of Criminal Procedure). The new rule is for the
protection of the interest of the offended party and to prevent possible abuse by the prosecution.
104 Which of the following is a correct statement of the rule on amendment of the information in a criminal
proceeding? (2011 BAR)

interest of the offended party and to prevent possible abuse by the

prosecution.
d. AFTER PLEA: Amendment in the Information which changes the
nature105 of the crime after arraignment
*GR: The prosecutor can no longer amend the information
after arraignment as it would prejudice the substantial rights of the accused.
*****XPN: When a fact supervenes106 which changes the
nature of the crime charged in the information or upgrades it to a higher
crime, the prosecutor, with leave of court, may amend the information to
allege such supervening fact and upgrade the crime charged to the higher
crime brought about by such supervening fact.107
Substitution
1. PERIOD when substitution is proper: If it appears anytime before
judgment that a mistake has been made in charging the proper offense, the
court shall dismiss the original complaint or information upon the filing of a new one
(A) An amendment that downgrades the offense requires leave of court even before the accused
pleads.
(B) Substantial amendments are allowed with leave of court before the accused pleads.
(C) Only formal amendments are permissible before the accused pleads.
(D) After the plea, a formal amendment may be made without leave of court.
105
[] Bar 1997: Arthur was accused of homicide for the killing of Bebang. During the trial, the
public prosecutor received a copy of the marriage certificate of Arthur and Bebang.
a. Can the public prosecutor move for the amendment of the information to charge Arthur with the crime
of parricide? NO. The information cannot be amended to change the offense charged from
homicide to parricide. ****Firstly, the marriage is not a supervening fact arising from the act
constituting the charge of homicide. ***Secondly, after plea, amendments may be done only as
to matters of form. The amendment is substantial because it will change the nature of the
offense (Dionaldo v. Dacuycuy, G.R. No. L-55357, October 30, 1981).
b. Suppose instead of moving for the amendment of the information, the public prosecutor
presented in evidence the marriage certificate without objection on the part of the defense,
could Arthur be convicted of parricide? NO. Arthur can be convicted only of homicide not of
parricide which is a graver offense. The accused has the constitutional rights of due process and
to be informed of the nature and the cause of the accusation against him.
106 The city prosecutor charged Ben with serious physical injuries for stabbing Terence. He was tried and
convicted as charged. A few days later, Terence died due to severe infection of his stab wounds. Can the
prosecution file another information against Ben for homicide? (2011 BAR)
(A) Yes, since Terence’s death shows irregularity in the filing of the earlier charge against him.
(B) No, double jeopardy is present since Ben had already been convicted of the first offense.
(C) No, there is double jeopardy since serious physical injuries is necessarily included in the charge of
homicide.
(D)Yes, since supervening event altered the kind of crime the accused committed.
107 [] Teejanke vs. Madayag: case was for frustrated murder but the victim died; prosecution changed it to
murder but the accused objected saying he needed another PI for such substantial change in the nature
of the accusation. *****SC said there is no need for another PI because there was no substantial
amendment made—it was only a change in the stage of the execution. [Dean R said this is not
acceptable to some lawyers]
charging the proper offense, provided the accused shall not be placed in double
jeopardy (Sec. 14, Rule 110).
2. LIMITATIONS on substitution******
a. No judgment has yet been rendered;
b. The accused cannot be convicted108 of the offense charged or of
any other offense necessarily included109 therein; and
c. The accused would not be placed in double jeopardy (Herrera,
2007).
5.2.10. Venue of criminal actions

[] Venue for the institution of criminal actions
1. GR: Subject to existing laws, criminal action shall be instituted and tried in
the court of the municipality or territory
108 Q: The accused pleaded not guilty to the charge of less serious physical injuries. Before judgment,
the fiscal moved that he be allowed to file a new information against the accused for the graver crime of
frustrated murder it appearing that the injuries were inflicted with intent to kill. The defense objected
upon the ground that the charge for less serious physical injuries is included in the offense of frustrated
murder and since he had already pleaded to the lesser charge, the filing of a new information would constitute
second jeopardy. The prosecution replied that there would be no double jeopardy as the complaint will be
dismissed upon the filing of the information for frustrated murder, pursuant to Sec. 11, Rule 119 of the
1985 rules on Criminal Procedure relevant to situations when mistake has been made in charging the proper
offense. The fiscal argued that the fact of the accused's intent to kill was discovered by the
prosecution and the complainant only during the trial of the case.
A. Resolve the motion. Reasons. Motion denied. The charge of less serious physical injuries is
necessarily included in the offense of frustrated murder and under Sec. 11 of Rule 119 of the 1985 Rules
on Criminal Procedure, ******the dismissal of the original case upon the filing of the new one can only
be done if the accused cannot be convicted of the offense charged. In this case the accused can be
convicted of less serious physical injuries. Moreover, the dismissal of the original complaint upon the
filing of a new one charging the proper offense can only be done provided the accused would not be
placed in double jeopardy. In this case the accused would be placed in double jeopardy. (Sec. 14 of Rule
110; People vs. Mogul, 131 SCRA 296)
B. Suppose the intent to kill is indicated in the affidavits of the witnesses for the complainant
which were the basis for the filing of the complaint, would your resolution be different and if so, why?
(1987 Bar Question) Answer: Motion denied. With more reason should the motion be denied if the
intent to kill is indicated in the affidavits which were the basis for the filing of the complaint, because not
only is the intent to kill not a new supervening fact, but it is not even a subsequently discovered
fact. (Sec. 7 of Rule 117)
109 Q: Fernando was charged with the crime of rape pursuant to the information alleging that by means of
force, violence and intimidation, he had carnal knowledge of Elaine, a 13- year old girl. After trial, the
court found that the theory of force and involuntariness in the sexual interlude between Fernando and
Elaine was disproven and that, on the contrary, it was a consensual affair. It, therefore, concluded that
Fernando cannot be held liable for rape. Nevertheless, the court found that Fernando committed deceit,
through promise of marriage, in successfully persuading Elaine to give up her virginity. Supposing that
the evidence overwhelmingly shows that the crime of simple seduction had been committed by
Fernando, can he be convicted for that crime? Explain. (1993 Bar Question) Answer:
No, because Fernando was not charged with simple seduction. He was charged with having carnal
knowledge of Elaine by means of force, violence and intimidation. *****There was no allegation of deceit
in the information. Rape does not necessarily include simple seduction. Hence, he could not be
convicted of simple seduction. (Sec. 4, Rule 120; Barba vs. People. 89 SCRA 112).
a. where the offense was committed or

b. any of its essential ingredients occurred (Sec. 15, Rule 110).
2. ******XPNs:
a. An offense was committed on a railroad train, in an aircraft, or in
any other public or private vehicle in the course of trip – The criminal
action may be instituted and tried in the court of any municipality or territory
where such train, aircraft or other vehicle passed during such trip,
including the place of departure and arrival (Sec. 15 (b), Rule 110);
b. Where the offense is committed on board a vessel on its voyage –
The criminal action may be instituted and tried in the proper court of the first
port of entry or of any municipality or territory through which the vessel
passed during such voyage subject to the generally accepted principles of
international law (Sec. 15(c), Rule 110);
c. Felonies under Art. 2 of the RPC – Shall be cognizable by the proper
court where the criminal action was FIRST filed (Sec. 15(d), Rule 110);
d. When the Supreme Court orders a change in venue or place of trial to
avoid a miscarriage of justice: [Art VIII, Sec 5(4), 1987 Constitution]
e. When the offense is cognizable by the Sandiganbayan.110 EG: although
the crime was committed in Tawi-tawi, it shall be tried in QC where the SB sits.
f. Continuous or transitory crimes – Such offenses may be tried by the
court of any jurisdiction wherever the offender may be found, but the
complainant should allege that the offense was committed within the
jurisdiction of the court (Herrera, 2007);
g. Piracy – ****The venue of piracy, unlike all other crimes, has no
territorial limits. It is triable anywhere;
h. Libel [Art 255 irt 360 RPC]– ******The action may be instituted at
the election of the offended or suing party in the municipality or city
where:
i. Venue 1: The libelous article is printed and first published;
ii. Venue 2: a) If one of the offended parties is a private
individual, where said private individual actually resides at the time of the
commission of the offense; b) If the offended party is a public official, where
the latter holds office at the time of the commission of the offense;
110
[] Bar 1997: Where is the proper venue for the filing of information in the following cases?
The malversation of public funds by a Philippine consul detailed in the Philippine
Embassy in London: The proper court is the Sandiganbayan which has jurisdiction over crimes
committed by a consul or higher official in the diplomatic service (Sec. 4(c), PD 1606, as
amended by RA 7975). The Sandiganbayan is a national court (Nunez v. Sandiganbayan, G.R.
Nos. L-50581 - 50617, January 30 1982). It has only one venue at present, which is in Metro
Manila, until RA 7975, providing for two other branches in Cebu and in Cagayan de Oro, is
implemented.
[] Note that libel is punished up to prision correccional only, but it

must be filed at the RTC [Art. 360 RPC], with two possible venues111
depending on the personality of the offended part, supra. *****Moreover,
under Art. 360 RPC, the corresponding civil case also has to be filed in the
same court (RTC) even if the amount is Php300K/Php400K or less, even if
the civil case is filed separately from the criminal case.112
i. BP 22 cases113 – may be filed in any of the places where any of its
111
[] GR: Conviction can be had even if it appears that the crime was committed not in the
place alleged in the information, provided that the place of actual commission was within the
jurisdiction of the court.
****XPN: The particular place of commission is an essential element of the offense
charged.
[] Q: Mike was charged with libel. The information however failed to allege that
complainant Roy was a resident of the place over which the court has jurisdiction. May Mike
file a motion to quash based on such defect in the Information? YES. ****In libel cases, failure to
allege in the information that the offended party is a resident of the place over which the
court where the information was filed has jurisdiction and the fact that the articles were first
published and printed in said place is a substantial defect that can be a proper ground for a
motion to quash on the ground of lack of jurisdiction. Such defect is not merely as to form which
can be properly amended (Agustin v. De Leon, G.R. No. 164938, August 22, 2005).
112Q: Co Batong, a Taipan, filed a civil action for damages with the Regional trial Court (RTC) of
Parañaque City against Jose Penduko, a news reporter of the Philippines Times, a newspaper of general
circulation printed and published in Parañaque City. The complaint alleged, among others, that Jose
Penduko wrote malicious and defamatory imputations against Co Batong; that Co Batong’s business
address is in Makati City; and that the libelous article was first printed and published in Parañaque City. The
complaint prayed that Jose Penduko be held liable to pay P200,000.00 as moral damages; P150,000.00, as
exemplary damages; and P50,000.00, as attorney’s fees. Jose Penduko filed a Motion to Dismiss on the
following grounds: The RTC is without jurisdiction because under the Totality Rule, the claim for damages
in the amount of P350,000.00 fall within the exclusive original jurisdiction of the Metropolitan Trial Court
(MeTC) of Parañaque City. The venue is improperly laid because what the complaint alleged is Co Batong’s
business address and not his residence address.
Are the grounds invoked in the Motion to Dismiss proper? (2014)
a. The RTC is without jurisdiction because under the Totality Rule, the claim for damages
in the amount of P350,000.00 fall within the exclusive original jurisdiction of the Metropolitan
Trial Court (MeTC) of Parañaque City. NO. The gorund invoked in the Motion to Dismiss is not
proper. *****Under Article 360 of the RPC, the civil action for damages in cases of written
defamation may be filed separately in the Regional Trial Court where the libelous article was
printed and first published, regardless of the amount of damages being claimed.
b. The venue is improperly laid because what the complaint alleged is Co Batong’s business
address and not his residence address. A: The venue is properly laid. Under the law, the venue for
the civil action involving written defamation shall be the place where the defamatory article was
printed and first published. (Art. 360, RPC). Since the defamatory article was printed and first
published in Parañaque City, the venue of the action is properly laid. *****Hence, the dismissal of
the Complaint will only be proper if the Complaint failed to allege the residence of the
complainant or the place where the libelous article was printed and first published (Nocum
v. Tan, G.R. No. 145022, September 23, 2005).
113The criminal action shall be filed at the place where the check was dishonored or issued. In case of
crossed check, the place of the depositary or the collecting bank. In Morillo vs PP 2015 and Yalong vs
PP: It is well-settled that violation of BP 22 cases is categorized as transitory or continuing crimes, which
elements occurred – in particular, the place where the check is DRAWN,

ISSUED, DELIVERED, OR DISHONORED.
j. ****Another type of continuing crime is evasion of sentence under
Art. 157 RPC. Hence, if a prisoner who is confined in Muntinlupa escaped, and
later was caught in Manila, he can be charged in Manila [Parolan vs. Director of
Prisons]. But theft114 is NOT a continuing crime, say, John stole a Carabao
in Mindoro and was caught later in Pampanga. He cannot be charged for theft
in Pampanga because the same is a completed crime in Mindoro.
5.2.11. Intervention of offended party

1. Intervention of the offended party in criminal action
****GR: The offended party has the right to intervene by counsel in
the prosecution of the criminal action where the civil action for the recovery
of civil liability is instituted in the criminal action pursuant to Rule 111 (Sec. 16, Rule
110).
*XPNs:
a. From the nature of the crime and the law defining or punishing it, no
civil liability arises in favor of the offended party; EG: sedition, rebellion,
treason (crimes against national security);
b. The offended party waived the right to civil indemnity; or
c. The offended party had already instituted separate action.
[] Q: Gary requested the Ombudsman to investigate the petitioner, Retired
Brig. Gen. Jose S. Ramiscal, Jr., then President of the Armed Forces of the
Philippines Retirement and Separation Benefits System, (AFP-RSBS) together
with 27 other persons for allegedly conspiring in misappropriating AFP-RSBS
funds and in defrauding the government millions of pesos in capital gains and
means that the acts material and essential thereto occur in one municipality or territory, while some occur in
another. Accordingly, the court wherein any of the crime’s essential and material acts have been
committed maintains jurisdiction to try the case; it being understood that the first court taking
cognizance of the same excludes the other. Stated differently, a person charged with a continuing or transitory crime
may be validly tried in any municipality or territory where the offense was in part committed.
114
[] Bar 1997: Where is the proper venue for the filing of information in the following cases?
a. The theft of a car in Pasig City which was brought to Obando, Bulacan, where it was
cannibalized: The proper venue is in Pasig City where the theft of the car was committed, not in
Obando where it was cannibalized. Theft is not a continuing offense (People v Mercado, G.R.
No. L-2760, February 11, 1950).
b. The theft by Carl, a bill collector of ABC Company, with main offices in Makati City, of
his collections from customers in Tagaytay City. In the contract of employment, Carl was detailed
to the Calamba branch office, Laguna, where he was to turn in his collections: If the crime charged
is theft, ****the venue is in Calamba where he did not turn in his collections. If the crime of
Carl is estafa, the essential ingredients of the offense took place in Tagaytay City where he
received his collections, in Calamba where he should have turned in his collections, and in Makati City where
the ABC Company was based. The information may therefore be filed in Tagaytay City or Calamba
or Makati which have concurrent territorial jurisdiction (Catingub v. CA, G.R. No. L-29365,
March 25, 1983).
documentary stamp taxes. Special Prosecutor Joy C. Rubillar-Arao filed 24

separate Informations with the Sandiganbayan against the petitioner and
several other accused. Ramiscal filed an Urgent Manifestation and Motion to
Suspend Proceedings, because of the pendency of his motion for
reinvestigation with the Office of the Ombudsman. Pending resolution of the
aforementioned motions, the law firm of Albano & Associates filed a
“Notice of Appearance” as private prosecutors. The notice of appearance
was apparently made conformably to the letter-request of Retired Commodore
Ismael Aparri and Retired Brig. Gen. Pedro Navarro, who are members
Association of Generals and Flag Officers, Inc. (AGFOI). Petitioner opposed
the appearance of the law firm of Albano & Associates as private
prosecutors, contending that the charges brought against him were
purely public crimes which did not involve damage or injury to any
private party; thus, no civil liability had arisen. Is the contention of
petitioner tenable? YES. The court agreed with the contention of the petitioner
that the AGFOI, and even Commodore Aparri and Brig. Gen. Navarro, are
not the offended parties envisaged in Sec. 16, Rule 110, in relation to Sec.
1, Rule 111 of the Revised Rules of Criminal Procedure. ****Under Sec. 5,
Rule 110 of the Rules, all criminal actions covered by a complaint or
information shall be prosecuted under the direct supervision and control
of the public prosecutor. The prosecution of offenses is a public function.
Malcolm: an offense is an outrage against the sovereignty of the State! Hence, if
there is a private prosecutor, he cannot file a pleading without the consent of
the public prosecutor. Cross examination by the latter cannot be deemed
waived if he is absent [Pinote vs. Ayco 2005]. Now, when the case reaches the
CA & SC, the People of the Philippines is now represented by the OSG. XPN:
when cognizable by SB, in which case P.P. will be represented by the Office of
the Ombudsman through its Special Prosecutors.
[] Can the private prosecutor control and direct the case?
****Under Sec. 16, Rule 110 of the Rules of Criminal Procedure, the
offended party may intervene in the criminal action personally or by
counsel, who will act as private prosecutor for the protection of his
interests and in the interest of the speedy and inexpensive administration
of justice. However, the offended party is the government, which was
allegedly deprived by the petitioner and the other accused of the capital gains
and documentary stamp taxes, based on the actual and correct purchase price
of the property stated therein in favor of the AFP-RSBS. The AGFOI was
not involved whatsoever in the sales subject of the crimes charged;
neither was it prejudiced by the said transactions, nor is it entitled to the
civil liability of the petitioner for said cases. Thus, it is not the offended
party in the said cases (Ramiscal Jr., v. Sandiganbayan, G.R. No. 140576-99,
December 13, 2004).

——————————————————————————————
5.3. Prosecution of civil action [Rule 111]
CRIMINAL vs. CIVIL LIABILITY 100

5.3.1. Rule on implied institution of civil action with criminal action 100
More on reservation of the right to file a separate civil action 101
More on prior institution of a civil action 102
Extinction of the civil action when the penal action is extinguished 102
Effect of the Acquittal of the Accused on his Civil Liability 105
On EER and Quasi Delict 106
5.3.2. When civil action may proceed independently 107
5.3.3. When separate civil action is suspended 109
5.3.4. Effect of death of the accused or convict on civil action 111
5.3.5. Prejudicial question 111
5.3.6. Rule on filing fees in civil action deemed instituted with the criminal action 111
——————————————————————————————
CRIMINAL vs. CIVIL LIABILITY

The two liabilities are separate and distinct from each other [Padilla v. CA
1984]
CRIMINAL LIABILITY CIVIL LIABILITY
affects the social order affects private rights
for the punishment or correction of the for reparation of damages suffered by the
offender aggrieved party
for the purposes of the imprisonment of or fine for the purpose of indemnifying the
upon the accused, complaining party,
the offense should be proved beyond reasonable only preponderance of evidence is needed
doubt
5.3.1. Rule on implied institution115 of civil action with criminal action

1. GR: The institution or filing of the criminal action includes116 the
institution therein of the civil action for recovery of civil liability arising117
from the offense charged. Basis:118 RPC, [] Art. 100. Civil liability of a person guilty
of felony. — Every person criminally liable for a felony is also civilly liable.
2. *****XPNs—When the offended party:
a. Waives the civil action;
b. Reserves his right to file a separate civil action; or
c. Institutes a civil action prior to the criminal action (Sec. 1, Rule 111).
[] See separate discussions, infra, on (b) and (c)
3. Scope of civil liability (IRR)
a. Restitution
b. Reparation for damage caused
c. Indemnity for consequential damages (Art. 104, RPC)
115
IMPLIED INSTITUTION of the civil action in a criminal case
*GR: When a criminal action is instituted, the civil action for the recovery of the civil
liability arising from the offense charged shall be DEEMED INSTITUTED with the
criminal action (Rule 111, Sec. 1, RRC).
****XPNs: When the offended party: (i.e., the default procedure will not apply then there is
waiver, reservation, prior institution)
a. Waives the civil action
b. Reserves the right to institute it separately. NB: the civil action cannot be commenced until
the final judgment of the criminal action.
c. Institutes the civil action prior to the criminal action (Rule 111, Sec. 1, RRC). NB: the
civil action is suspended when the criminal action is subsequently filed.
****NB: the prescriptive period for the filing of the civil action will not run during the time
that the criminal action is pending.
116 Q: An information for frustrated homicide failed to allege the damages incurred by the offended party.
At the trial, the court upon objection of the accused, barred the prosecution from proving the damages
suffered by complainant for the reason that it was not alleged in the information. Accused presented
evidence to prove his innocence. After trial, the court convicted the accused sentencing him to
imprisonment without any award of damages. *****Was the court correct in disallowing the
prosecution from presenting proof relative to accused’s civil liability? Explain briefly. (1996 Bar Question)
Answer:
No. In a criminal case, the civil action for recovery of civil liability is impliedly instituted with
the criminal action, unless the offended party waives the civil action, reserves his right to institute it
separately, or institutes the civil action prior to the criminal action. Consequently, the prosecution has the
right to present evidence of damages suffered even if it was not alleged. (Sec. 1 of Rule 111)
117 *Only the civil liability arising from the crime charged (cause of action arising from delict) as a felony is
now deemed instituted (Sarmiento, Jr. vs. Court of Appeals, G. R. No. 122502, December 27, 2002).
118
Basis: Art. 100 of the Revised Penal Code provides: “Every person criminally liable for a
felony is also civilly liable.”
*GR: A crime has two aspects: a. Offense against the state because of the disturbance of
the social order; and b. Offense against the private person
*XPNs: Crimes of treason, rebellion, espionage, contempt and others wherein no civil
liability arises on the part of the offender either because there are no damages to be
compensated or there is no private person injured by the crime (Reyes, 2008).
More on reservation of the right to file a separate civil action

1. Jurisprudence instructs that the reservation may not be necessarily expressed
but may be implied, which may be inferred not only from the acts of the
offended party but also from acts other than those of the latter
2. *****Failure of the court to pronounce judgment as to the civil liability
amounts to the reservation of the right to a separate civil action (Herrera,
2007).
3. *******Period when reservation of the right to file civil action be made:
BEFORE the prosecution starts presenting the evidence, and under
circumstances affording the offended party a reasonable opportunity to
make the reservation (Sec.1 (2), Rule 111).
4. EFFECT of reserving the right to file a separate civil action: The
prescriptive period of the civil action that was reserved shall be TOLLED
(Sec. 2, Rule 111).
5. ******Instances when the reservation to file a separate civil action is NOT
allowed
a. Criminal action for violation of BP 22 (Sec. 1(b), Rule 111);119
b. A claim arising from an offense which is cognizable by the
Sandiganbayan (Herrera, 2007); and
c. Tax cases.
More on prior institution of a civil action

1. GR: If the civil action is instituted before the criminal action and the
criminal action is subsequently commenced, the pending civil action, in
whatever stage it may be found, shall be suspended until final judgment of
the criminal action has been rendered (Sec. 2, Rule 111).
2. *****XPNs:
a. In cases of independent civil actions (ICA)120 based on Arts. 32, 33,
119
[] Bar 2001/2003: In an action for violation of BP 22, the court granted the accused's demurrer
to evidence filed without leave of court. However, the accused was required to pay private
complainant the face value of the check. The accused filed a motion for reconsideration
regarding the order to pay the face value of the check on the ground that the demurrer to
evidence applied only to the criminal aspect of the case. Resolve the motion for
reconsideration:
The M/R should be denied. ****The ground that the demurrer to evidence applied
only to the criminal aspect of the case was not correct. Under Rule 111, the criminal action for
violation of BP 22 shall be deemed to include the corresponding civil action. No reservation
to file such civil action separately shall be allowed.
120*****Note that by legal fiction, the ICA does not arise from the crime. There is no litis pendentia
either because the source of liability is not the same as in a criminal action: it is the delict for the latter,
but it is Art. 32-33-34-2176 for the ICA. As Art. 33 provides: Such civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence
34 and 2176 of the Civil Code: they can be filed before, during or after the
filing of the criminal action. Two possible actions: i. criminal action with
accompanying civil liability; ii. civil obligation arising from a QD. The
recognized ICAs are:
i. Art. 32:121 violation of civil liberties;122,123

121
[Article 32; includes any PRIVATE individual, not just any public officer or employee]; relevant
act: he directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person; he shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process of law;
(7) The right to a just compensation when private property is taken for public use;
(8) The right to the equal protection of the laws;
(9) The right to be secure in one's person, house, papers, and effects against unreasonable
searches and seizures;
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for purposes not
contrary to law;
(13) The right to take part in a peaceable assembly to petition the Government for
redress of grievances;
(14) The right to be a free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the attendance of witness in his
behalf;
(17) Freedom from being compelled to be a witness against one's self, or from being
forced to confess guilt, or from being induced by a promise of immunity or reward to make
such confession, except when the person confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is
imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and
(19) Freedom of access to the courts.
[] These acts or omissions, WON they constitute a criminal offense, the aggrieved
party has a right to commence an entirely separate and distinct civil action for damages, and
for other relief; such civil action shall proceed independently of any criminal prosecution (if
the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include
moral damages. Exemplary damages may also be adjudicated.
[] Rule on applicability of these acts/omissions on judges:
*****GR: The responsibility herein set forth is not demandable from a judge
*XPN: unless his act or omission constitutes a violation of the Penal Code or
other penal statute.
122
A police officer committed a crime of Violation of Domicile (VD):
a. Art. 100 says he is also civilly liable, aside from his criminal liability arising from the VD.
This is the civil liability arising from the crime (ex delicto);
b. One can also file an separate and independent civil action (ICA) against him under Art.
32 (9): violation of his right to be secure in his own house against unreasonable search or seizure.
123
Possible combinations: (the first is the crime & second is the ICA)
a. Art. 127 (expulsion) & Art 32, 10 (violation of liberty of abode);
b. Art. 128-130 (violation of domicile) & Art 32, 9 (right to security in one’s house against
unreasonable search & seizure);
ii. Art. 33:124 defamation, fraud, physical injuries;

iii. Art. 34:125 police refuses or fails to pended aid/protection to
any person in case of danger to life or property. Police is primarily liable, while
the city/municipality is subsidiarily liable.
iv. Art 2176:126 Quasi-delict.
[] How about Art. 31? No, because there is no criminal component.127
b. In cases where the civil action presents a prejudicial question: what
is suspended here is the criminal action, since the judgment of the civil
action will determine WON the accused in guilty.
c. and Where the civil action is not one intended to enforce the civil
liability arising from the offense.
EXTINCTION of the civil action when the penal action is extinguished

1. GR: The extinction of the penal action does not extinguish the civil action.
2. ****XPN: When there is a finding in a final judgment in the criminal action
that the act or omission FROM WHICH the civil liability might arise
DID NOT EXIST (Sec. 2, Rule 111).
3. NB: The civil action that is extinguished refers exclusively to civil liability
arising from the crime and does not include civil actions:
i. Based on quasi-delict
c. Art. 132 (interruption of religious worship) & Art. 32, 1 (freedom of religion);
d. Art. 353-359 (libel) & Art. 33 (defamation);
e. Art. 315-318 (estafa) & Art. 33 (fraud);
f. Art. 246-266 (physical injuries, including rape) & Art. 33 (physical injuries)
g. Art. 233 (refusal to assist) & Art. 34 (not that a police is now ‘national’, not municipal)
4. Effect of ICA: The appearance of a private prosecutor is only allowed under Sec 16, Rule 110.
5. Effect of suspension of action:
a. civil action ex delicto: it is suspended once a criminal action is filed;
b. ICA: it remains—it can be tried separately & independently.
124In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and
distinct from the criminal action, may be brought by the injured party [Article 33]. This includes homicide.
125
When a member of a city or municipal police force REFUSES or FAILS to render aid or
protection to any person in case of danger to life or property:
i. such peace officer shall be PRIMARILY LIABLE for damages, and
ii. the city or municipality shall be SUBSIDIARILY responsible therefor.
The civil action herein recognized shall be independent of any criminal proceedings, and a
preponderance of evidence shall suffice to support such action. [Article 34]
126[] Quasi-delict or tort: An act or omission arising from fault or negligence which causes damage to
another, there being no pre-existing contractual relations between the parties (Art. 2176, NCC).
127 It cannot constitute an independent civil action because there is no criminal component. It is a civil
action based on an obligation not arising from a delict, although it may proceed independently of the
criminal proceeding, and regardless of the result of the latter. Why? The concept of ICA is that it has a
corresponding criminal aspect or criminal liability. Now, if a civil liability arises from a crime, apply Art
100. But if there is no criminal component, the rule of precedence of criminal action ahead of the civil
action will not apply. NB: POS are an exception to the rule on precedence.
ii. Based on Arts. 32, 33 and 34 of the NCC (ICA)

iii. Civil obligation not based on the criminal offense (Herrera,
2007).
EFFECT OF THE ACQUITTAL of the Accused on his Civil Liability

1. GR: If the acquittal is based on the ground that he was not the author of the
crime, it will EXTINGUISH his civil liability which may arise from the offense;
2. XPN: [] Instances where the acquittal of the accused does NOT bar the
continuation of the civil case
a. Acquittal based on reasonable doubt;128
b. The decision contains a declaration that the liability of the accused
is not criminal but only civil in nature; and
c. The civil liability is not derived from or based on the criminal act of
which the accused is acquitted (Sanchez v. Far East Bank and Trust Company,
G.R. No. 155309, November 15, 2005).
3. The reverse way of putting it is: GR: The acquittal of the accused in a
criminal case on the ground of reasonable doubt does not preclude the
filing of a subsequent civil action and only preponderance of evidence is
required to prove the case. Here, there is still civil liability and the same shall be
pronounced by the judge. *****XPNs: When the acquittal is on the basis that:
a. There was no crime committed—there is no civil liability because
there is nothing to attach to;
b. There was a crime but the accused did not commit it—no civil
liability;
c. There is a declaration in the decision of acquittal that no negligence
can be attributed to the accused and that the fact from which the civil action
might arise did not exist (Art. 29, NCC).
[] *****Even if the acquittal is based on (a) to (c), an ICA129 can still
persist because it is independent of the result of the criminal action. When we
say that there is no civil liability under (a) to (c), it refers to civil liability ex
delicto.
128 If the acquittal is based on reasonable doubt on the guilt of the accused, the civil liability of the accused
arising from the crime may be proved by PREPONDERANCE of evidence (Herrera, 2007). NB: When
the trial court acquits the accused based on reasonable doubt, it could make a pronouncement on the civil
liability of the accused (Lontoc v. Jarantilla, G.R. No. 80194, March 21, 1989). *****The court may be
compelled to include in the judgment of acquittal the civil liability through a petition for
mandamus (Maximo v. Gerochi, G.R. Nos. L-47994-97, September 24, 1986).
129 *****The result in the criminal case, whether acquittal, or conviction is irrelevant in the
independent civil action under the Civil Code (Dionisio v. Alyendia, 102 Phil 443, cited in Mckee v. IAC,
211 SCRA 536) unless the acquittal is based on the court’s declaration that the fact from which the
civil action arose did not exist, hence the dismissal of criminal action carries with the extinction of the
civil liability (Andamo v. IAC, 191 SCRA 204, ’90 J. Fernan).
On EER and Quasi Delict

1. An employer cannot be held civilly liable for quasi-delicts in a criminal action
filed against his employee—since a quasi-delict is not deemed instituted in the
criminal action.130
2. But an employer is subsidiarily liable under Arts. 102 and 103 of the RPC
when the employee is insolvent. Requisites for an employer to become
subsidiarily liable:131
a. There must exist an employee-employer relationship; NB: a
consultant in a hospital is not an employee.
b. That the employer is engaged in some kind of industry; NB: The term
industry means any department or branch of art, occupation or business,
especially one that employs labor and capital, and is engaged in industry.
*****Hence, a public hospital, is not engaged in industry conducted for
profit but purely in charitable and humanitarian work;132
Q: Can an EMPLOYER be held civilly liable for quasi-delict in a criminal action filed against his
130
EMPLOYEE? NO. The employer cannot be held civilly liable for quasi-delict since quasi-delict is not
deemed instituted with the criminal action. If at all the only civil liability of the employer would be his
SUBSIDIARY liability under the RPC. Noteworthy is the fact that the subsidiary liability established in
Arts. 102 and 103 of the RPC may be enforced in the same criminal case by filing in said criminal action a
motion for execution against the person subsidiarily liable (Maniago v. CA, G.R. No. 101809, February 20,
1996).
131
[] Solidum vs. PP 2014 (J. Bersamin): Moreover, Ospital ng Maynila could be held civilly liable
only when subsidiary liability would be properly enforceable pursuant to Article 103 of the
Revised Penal Code. Conditions: Firstly, pursuant to Article 103 of the Revised Penal Code, Ospital
ng Maynila must be shown to be a corporation “engaged in any kind of industry.” The term
industry means any department or branch of art, occupation or business, especially one
that employs labor and capital, and is engaged in industry. However, Ospital ng Maynila, being a
public hospital, was not engaged in industry conducted for profit but purely in charitable and
humanitarian work. Secondly, assuming that Ospital ng Maynila was engaged in industry for profit,
Dr. Solidum must be shown to be an employee of Ospital ng Maynila acting in the discharge
of his duties during the operation on Gerald (the victim). Yet, he definitely was not such
employee but a consultant of the hospital. And, thirdly, assuming that civil liability was adjudged
against Dr. Solidum as an employee (which did not happen here), the execution against him was
unsatisfied due to his being insolvent.
132
[] Solidum v. People: RTC convicted Solidum but acquitted the two other doctors.
However, the CA held that it is not only Dr. Solidum who is civilly liable. CA held that
Ospital ng Maynila (OM) is subsidiarily liable. SC held that this decision of the CA is wrong on
two points: first, OM was not impleaded in the information filed against the accused. OM is a
juridical entity. How can the CA impose civil liability on OM when it was not even included in
the case filed against Dr. Solidum? Second, granting for the sake of argument that OM was
impleaded, still it cannot be subsidiarily liable because the requisites for the subsidiary
liability of the employers are not present, first, there is no employer-employee relationship
because based on the evidence, Dr. Solidum is a consultant and not an employee of OM.
Second, OM is not engaged in some kind of industry, it is a charitable institution that caters a
certain group— there is no profit. Lastly, granting that Dr. Solidum was held liable for civil
liability, there was no proof that Dr. Solidum was insolvent such that OM will be subsidiarily
liable.
c. That at the time of the commission of the crime the employee is in

the performance of his function;
d. That the employee was found guilty beyond reasonable doubt by
final judgment and was found insolvent to pay the civil liability.
3. How? ******There is no need to file a separate civil action. If all the
requisites are present, mandamus133 will lie. In the very same (criminal)
action, the liability of the employer becomes absolute the moment the
employee is found to be insolvent, but it is not automatic. The complainant
has to file a MOTION for the Issuance of a Subsidiary Writ of
Execution.134 This is not an ex parte motion, but a LITIGATED one.135
133
Juan Cruz, driver of a cargo truck owned and operated by VICMICO a sugar central, while
driving recklessly caused Jorge Abad to fall from the truck resulting in injuries which caused his
death. Juan Cruz was convicted of homicide through reckless imprudence and was ordered to pay
the heirs of the deceased Abad P12,000.00. The respondent judge issued an order granting a
motion for execution of the civil service liability of the accused Juan Cruz, but the return of the
Sheriff showed that the accused was insolvent. Petitioners, heirs of the deceased Abad, now filed a
motion for execution of the employers subsidiary liability under Art. 103 of the Revised Penal
Code. Respondent judge denied the motion, stating that the employer VICMICO, not having been
notified that his driver was facmg a criminal charge, a separate action had to be filed. Hence, a
petition for mandamus was filed. Decide the case. (1988 Bar Question) SUGGESTED ANSWER:
*****Mandamus will lie. There is no need for a separate civil action because the driver was
convicted (Martinez vs. Barredo). All you need is a motion for execution with a notice to the
employer that states compliance with the requisites imposed by Article 103 of the Revised Penal
Code (that there is employer-employee relationship, that the employer is engaged in an industry
and that the driver is insolvent).
134
Guy, while driving a passenger jeepney owned and operated by Max, bumped Demy, a
pedestrian crossing the street. Demy sustained injuries, which required medical attendance for three
months. Guy was charged with reckless imprudence resulting to physical injuries. Convicted by the
Metropolitan Trial Court, Guy was sentenced to suffer a straight penalty of three months of arresto
mayor and ordered to indemnify Demy in the sum of P5.000 and to pay PI,000 as attorney's fees.
Upon finality of the decision, a writ of execution was served upon Guy, but was returned
unsatisfied due to his insolvency. Demy moved for a subsidiary writ of execution against Max. The
latter opposed the motion on the ground that the decision made no mention of his
subsidiary liability and that he was not impleaded in the case. How will you resolve the
motion? [5%] (1998 Bar Question) SUGGESTED ANSWER: The motion is to be granted. Max as
an employer of Guy and engaged in an industry (transportation business) where said employee is
utilized, is subsidiarily civilly liable under Article 103 of the Revised Penal Code. Even though
the decision made no mention of his subsidiary liability, the law violated (Revised Penal Code)
itself mandates for such liability and Max is deemed to know it because ignorance of the law is
never excused. And since his liability is not primary but only subsidiary in case his employee
cannot pay, he need not be impleaded in the in the criminal case. It suffices that he was duly
notified of the motion for issuance of a subsidiary writ of execution and thus given the
opportunity to be heard.
135
Vin Diesel was a driver of XYZ Corporation engaged in the business of distributing goods to
supermarkets. Vin Diesel was driving recklessly as he was headed to one supermarket. In the
course thereof, Vin Diesel hit a car. The car was damaged. Because of this, a crime for reckless
imprudence resulting to damage to property was filed against Vin Diesel. The court found him
4. Note that for quasi-delicts under Art. 2180 NCC, the ER may be held
vicariously liable (primary & solidary liability) for the quasi-delict committed by
his EEs. The EEs & household helpers must be in the service or on occasion
of their functions or the scope of their work. Defenses of ER:
a. EE is not performing his functions or is acting beyond the scope of
his function;
b. he exercised of DUE DILIGENCE in the selection & supervision of
the EE.
5.3.2. When civil action may proceed independently

1. Instances when civil actions may proceed independently:
a. Arising from breach of contract;136 and
b. Independent civil actions (ICA) or those based on Arts. 32, 33, 34
and Art. 2176 of the NCC or quasi-delict (Herrera, 2007). NB: *****The
failure to reserve the right to file the enumerated actions does not amount to
a waiver to institute a separate civil action (Herrera, 2007).137
guilty. The penalties imposed were fine and payment of damage caused. When the judgment
became final and executory, a writ of execution was issued but was returned unsatisfied due to the
insolvency of Vin Diesel. If you were the complainant, what would you do to recover? Is there
need to file a separate civil action? No need to file a separate civil action. In the very same action
for reckless imprudence resulting to damage to property, ***the moment the employee is found
to be insolvent, the liability of the employer becomes absolute. However, even if it is
ABSOLUTE, it is NOT AUTOMATIC. The complainant has to file a MOTION for the
Issuance of a Subsidiary Writ of Execution. This is not an ex parte motion, but a
LITIGATED one. Thus, the other party (XYZ Corp) must be informed for due process.
136Q: While cruising on a highway, a taxicab driven by Mans hit an electric post. As a result thereof, its
passenger, Jovy, suffered serious injuries. Mans was subsequently charged before the Municipal Trial
Court with reckless imprudence resulting in serious physical injuries. Thereafter, Jovy filed a civil action
against Lourdes, the owner of the taxicab, for breach of contract, and Mans for quasi-delict. Lourdes
and Mans filed a motion to dismiss the civil action on the ground of litis pendentia, that is, the pendency
of the civil action impliedly instituted in the criminal action for reckless imprudence resulting in serious
physical injuries. Resolve the motion with reasons. (4%) (2005 Bar Question) SUGGESTED ANSWER:
Being a distinct cause of action, the action for breach of contract against the taxicab owner
cannot be barred by the criminal action against the taxicab driver, although the taxicab owner can be
held subsidiarily liable in the criminal case if the driver is insolvent. On the other hand, the civil action
for quasi-delict against the driver is an independent civil action under Article 33 of the Civil Code and
Sec. 3, Rule 111 of the Rules of Court, which can be filed separately and can proceed independently of
the criminal action and regardless of the result of the latter. (Samson v. Daway, 434 SCRA612 [2004])
and other cases.
137
[] Q: Al was charged before the City Court of Cebu with the offense of Serious Physical
Injuries Thru Reckless Imprudence, for having allegedly sideswiped Andrew along M. C. Briones
St., Cebu City while Al was driving a jeepney owned and registered in the name of Carl who is Al’s
employer. While the criminal case was pending, Andrew filed a separate civil action for damages based
on culpa aquiliana against Al and the latter's employer, Carl. Al and Carl filed a motion to
dismiss the civil case on the ground that the complaint for damages was filed without the
proper reservation in the criminal action to institute a separate and independent civil action. Rule
on the motion:
2. Caveat: No double recovery—Recovery of civil liability under Arts. 32, 33,

34 and 2176 of the Civil Code may be prosecuted separately even without
reservation (DMPI Employees Credit Cooperative v. Velez, G.R. No. 129282,
November 29, 2001). In no case, however, may the offended party recover
damages twice for the same act or omission charged in the criminal action.
3. CONSOLIDATION of civil action and criminal action arising from the same
offense: Before judgment on the merit is rendered in the civil action, the
same may, upon motion of the offended party, be consolidated with the criminal
action in the court trying the criminal action (Sec. 2, Rule 111).
In cases where the consolidation is given due course, the evidence
presented and admitted in the civil case shall be deemed
AUTOMATICALLY reproduced in the criminal action without prejudice
to admission of additional evidence and right to cross examination (Sec. 2,
Rule 111).
4. Q: May the offended party COMPROMISE the civil aspect of a crime?
YES. Provided it must be entered before or during the litigation and not
after final judgment.
5. Procedure on the institution of independent civil actions.138
*****There is no need to make a reservation of Andrew’s right to file a separate civil

action inasmuch as the civil action contemplated is not derived from the criminal liability of
the accused but one based on culpa aquiliana. The confusion lies in the failure to distinguish
between the civil liability arising out of criminal negligence governed by the Penal Code on
one hand, and the responsibility for culpa aquiliana or quasi-delict on the other, the latter
being SEPARATE AND DISTINCT from the civil liability arising from crime. It is thus clear
that the plaintiff-appellant's action, being one for culpa aquiliana (Art. 2176) may not be classified
as a civil action arising from the criminal offense to be suspended "until judgment in the
criminal case has been rendered (Bordas v. Canadalla, G.R. No. L-30036, April 15, 1988).
138Q: While in his Nissan Patrol and hurrying home to Quezon City from his work in Makati, Gary figured
in a vehicular mishap along that portion of EDSA within the City of Mandaluyong. He was bumped
from behind by a Ford Expedition SUV driven by Horace who was observed using his cellular phone at
the time of the collision. Both vehicles - more than 5 years old – no longer carried insurance other than the
compulsory third party liability insurance. Gary suffered physical injuries while his Nissan Patrol
sustained damage in excess of Php500,000.
a) As counsel for Gary, describe the process you need to undertake starting from the point of the
incident if Gary would proceed criminally against Horace, and identify the court with jurisdiction over the
case. (2013 BAR) A: As counsel for Gary, I will first make him medically examined in order to ascertain
the gravity and extent of the injuries he sustained from the accident. Second, I will secure a police report
relative to the mishap. Third, I will ask him to execute his Sinumpaang Salaysay. Thereafter, I will use
his Sinumpaang Salaysay or prepare a complaint affidavit and file the same in the Office of the City
Prosecutor and later on to the appropriate MTC of Mandaluyong City for the crime of Reckless
Imprudence resulting to physical injuries and damage to property (Sec. 1 and 15, Rule 110).
b) If Gary chooses to file an independent civil action for damages, explain briefly this type of
action: its legal basis; the different approaches in pursuing this type of action; the evidence you would need;
and types of defenses you could expect. (2013 BAR) A: An independent civil action is an action which is
entirely distinct and separate from the criminal action. Such civil action shall proceed independently of
the criminal prosecution and shall require only a preponderance of evidence. Section 3 of Rule 111
5.3.3. When separate civil action is suspended

*See “More on prior institution of a civil action”, supra.
5.3.4. Effect of death of the accused or convict on civil action

*See “all about death” under CivPro
5.3.5. Prejudicial question

1. It is an issue involved in a civil action which is similar or intimately
related to the issue raised in a criminal action, the resolution of which
determines139 whether or not the criminal action may proceed.
2. Elements of a prejudicial question*****(PriorCiv-SubseqCrim-
ResoCrimProceed)
a. The civil action must be instituted prior to the criminal action;
b. The civil action involves an issue similar or intimately related to the
issue raised in the subsequent criminal action; and
c. The resolution of such issue determines whether or not the criminal action
may proceed (Sec. 7, Rule 111).
3. ******A PQ arises in the civil case, hence, before the criminal case
proceeds, settle first the intimately-related issue in the civil case. Hence,
the civil case takes preference over the criminal case when there is a PQ.
allows the filing of an independent civil action by the offended party based on Article 33 and 2176 of the
New Civil Code. The different approaches that the plaintiff can pursue in this type of action are, as follows:
1. File the independent civil action and prosecute the criminal case separately.
2. File the independent civil action without filing the criminal case.
3. File the criminal case without need of reserving the independent civil action.
Aside from the testimony of Gary, the pieces of evidence that would be required in an
independent civil action are the medical report and certificate regarding the injuries sustained by Gary,
hospital and medical bills including receipt of payments made, police report and proof of the extent of
damage sustained by his car, and the affidavit of witnesses who saw Horace using his cellular phone at
the time the incident happened. I will also present proof of employment of Gary such as his pay slip in
order to prove that he was gainfully employed at the time of the mishap, and as a result of the injuries he
suffered, he was not able to earn his usual income thereof. I will also present the attending doctor of
Gary to corroborate and authenticate the contents of the medical report and abstract thereof. The evidence
required to hold defendant Horace liable is only preponderance of evidence. The types of defenses that may
be raised against this action are fortuitous event, force majeure or acts of God. The defendant can also
invoke contributory negligence as partial defense. Moreover, the defendant can raise the usual
defenses that the: (a) plaintiff will be entitled to double compensation or recovery, and (b) defendant will
be constrained to litigate twice and therefore suffer the cost of litigation twice.
139
[] Q: Does a judgment in favor of the defendant in a civil action bar a criminal action for
the same act?
NO. Final judgment rendered in a civil action absolving the defendant from civil liability is
not a bar to criminal action against the defendant for the same act or omission subject of the
civil action (Sec. 5, Rule 111) unless the civil action is a prejudicial question which involves an
issue similar or intimately related to the issue raised in the criminal, the resolution of which determines whether
or not the criminal action may proceed.
NB: when there is none, the civil case is suspended until the final
determination of the the criminal case, even if the civil case was filed ahead of the
criminal case.
a. ******But note again this GR: in BP22,140 there is no reservation
needed as the civil and criminal cases should be tried together;
b. XPN: when the civil case was filed ahead of time. What do you do?
File a Motion to Suspend141 the Preliminary Investigation if the criminal
aspect is under PI. Why? Resolve first the civil issue that is determinative of the
outcome of the criminal case—it is its logical antecedent.
4. When raised? The prejudicial question may be raised during the
preliminary investigation of the offense or in court before the prosecution
rests its case.
5. Where? The PETITION FOR SUSPENSION by reason of prejudicial
question is filed with the Office of the Prosecutor or court where the
criminal action has been filed for trial at ****any time before the prosecution
rests (Sec. 6, Rule 111).
6. When PQ does apply:
a. Admin/Civil and Criminal Case [San Miguel Properties vs. Sec Perez
2013, by J. Bersamin!]: The administrative case for specific performance in the
HLURB posed a prejudicial question that must first be determined before
the criminal case for violation of Section 25 of Presidential Decree No. 957
could be resolved. The instant case for specific performance is civil in nature
and can only be filed at the HLURB,142 under the DOCTRINE OF
140 Q: Saturnino filed a criminal action against Alert for the latter’s bouncing check. On the date of the
hearing after the arraignment, Saturnino manifested to the court that he is reserving his right to file a
separate civil action. The court allowed Saturnino to file a civil action separately and proceeded to hear the
criminal case. Alex filed a motion for reconsideration contending that the civil action is deemed included in
the criminal case. The court reconsidered its order and ruled that Saturnino could not file a separate civil
action. Is the court's order granting the motion for reconsideration correct? Why? (5%) (2001 Bar Question)
SUGGESTED ANSWER: Yes, the court's order granting the motion for reconsideration is correct.
The Rules provide that the criminal action for violation of B.P. Big. 22 shall be deemed to include the
corresponding civil action, and that no reservation to file such civil action separately shall be allowed.
[Sec. 1(b), Rule 111, Revised Rules of Criminal Procedure)
141 The city prosecutor of Manila filed, upon Soledad’s complaint, a criminal action for estafa against her
sister, Wella, before the RTC of Manila for selling to Victor a land that she previously sold to Soledad. At
the same time Soledad filed a civil action to annul the second sale before the RTC of Quezon City. May
the Manila RTC motu proprio suspend the criminal action on ground of prejudicial question? (2011 BAR)
(A) Yes, if it may be clearly inferred that complainant will not object to the suspension of the criminal case.
(B) No, the accused must file a motion to suspend the action based on prejudicial question.
(C) Yes, if it finds from the record that such prejudicial question exists.
(D) Yes, if it is convinced that due process and fair trial will be better served if the criminal case is suspend
142 What court has jurisdiction over an action for specific performance filed by a subdivision homeowner
against a subdivision developer? Choose the correct answer. Explain. 2.5%

a) The Housing and Land Use Regulatory Board
b) The Securities and Exchange Commission
c) The Regional Trial Court
PRIMARY JURISDICTION. And the resolution of HLURB of the case is a

LOGICAL ANTECEDENT of the issue involved in the criminal case.143
b. Case before SEC/RTC as Special Commercial Court is a PQ on a
criminal case before a regular court [Omictin vs. CA 2007]: Complaint for
two counts of estafa for refusal to return the two company vehicles
entrusted to respondent (deposed president of the company). Respondent
filed a motion to suspend proceedings on the basis of a prejudicial question
because of a pending petition with the SEC involving the same parties for the
declaration of nullity of the appointment of the new president of the company.
Why is there PQ? The validity of the demand for the delivery of the vehicles
rests upon the authority of the person making such a demand on the
company’s behalf. Private respondent is challenging petitioner’s authority
and so, if the supposed authority of petitioner is found to be defective, it
is as if no demand was ever made, hence, the prosecution for estafa
d) The Commercial Court or the Regional Trial Court designated by the Supreme Court to hear and
decide “commercial cases”
SUGGESTED ANSWER: The Housing and Land Use Regulatory Board (HLURB) that has
jurisdiction over an action for specific performance filed by a subdivision homeowner, who is a lot-
buyer or the latter’s successor-in-interest, against a subdivision developer (Manila Bankers v. Ng Kok Wei,
418 SCRA 454 [2001]).
143
San Miguel Properties filed a complaint-affidavit charging respondent directors and officers of
BF Homes with non-delivery of titles in violation of Section 25, in relation to Section 39, both of
Presidential Decree No. 957. At the same time, San Miguel Properties sued BF Homes for specific
performance in the HLURB. Is there a PQ? YES. ******The administrative case for specific
performance in the HLURB posed a prejudicial question that must first be determined before
the criminal case for violation of Section 25 of Presidential Decree No. 957 could be resolved.
*****The law specifies that the instant case for specific performance, which is civil
in nature, can only be filed at the HLURB, an administrative agency that has the technical
expertise to resolve the issued at hand, and not the regular courts, under the DOCTRINE OF
PRIMARY JURISDICTION. And the resolution of HLURB of the case is a LOGICAL
ANTECEDENT of the issue involved in the criminal case. In other words, HLURB’s ruling is
determinative of the criminal case. It is based on a fact distinct and separate from the crime
but is so intimately connected with the crime that it determines the guilt or innocence of the
accused. It is worth noting that the rationale behind the principle of prejudicial question is to avoid
conflicting decisions. The resolution of HLURB must obviously precede that of the court, for
should the HLURB hold San Miguel Properties to be not entitled to the delivery of the 20 TCTs,
the basis for the criminal liability for the violation of Section 25 of Presidential Decree No.
957 would evaporate, thereby negating the need to proceed with the criminal case.
***San Miguel Properties further submits that respondents could not validly raise the
prejudicial question as a reason to suspend the criminal proceedings because respondents had
not themselves initiated either the action for specific performance or the criminal action. It
contends that the defense of a prejudicial question arising from the filing of a related case could
only be raised by the party who filed or initiated said related case. The submission is unfounded.
The rule on prejudicial question makes no distinction as to who is allowed to raise the
defense. Ubi lex non distinguit sec nos distinguere debemus [TOM—the SC would use
“debemos” but that's Spanish—it should be debemus since this is a Latin phrase]. When the law
makes no distinction, we ought not to distinguish.
cannot prosper.144
c. NB: same principle in PP vs. Arambulo 2015, only that only one of the
two cases filed at the SEC was considered prejudicial to the criminal case, i.e.,
the one questioning the election of the Board members (for the estafa case
to prosper, under abuse of confidence). The other SEC case for accounting
144
Omictin, Operations Manager Ad Interim of Saag Phils., Inc., filed a complaint for two counts
of estafa against private respondent George I. Lagos. He alleged that private respondent, despite
repeated demands, refused to return the two company vehicles entrusted to him when he was
still the president of Saag Phils., Inc.. (case was filed in Feb 1999). On June 24, 1999, private
respondent filed a motion to suspend proceedings on the basis of a prejudicial question
because of a pending petition with the Securities and Exchange Commission (SEC) involving the
same parties. On January 7, 1999, private respondent filed a case before SEC for the declaration
of nullity of the respective appointments of Alex Y. Tan and petitioner as President Ad Interim
and Operations Manager Ad Interim of Saag Phils., Inc., declaration of dividends, recovery of
share in the profits, involuntary dissolution and the appointment of a receiver, recovery of damages
and an application for a temporary restraining order (TRO) and injunction against Saag (S) Pte.
Ltd., Nicholas Ng, Janifer Yeo, Tan and petitioner. Is there a PQ?
YES. *****The case was lodged originally before the SEC and later transferred to the RTC
Mandaluyong by virtue of Republic Act No. 8799. It involves facts that are intimately related to
those upon which the criminal prosecution is based. Ultimately, the resolution of the issues
raised in the intra-corporate dispute will determine the guilt or innocence of private
respondent in the crime of estafa filed against him by petitioner before the RTC of Makati. As
correctly stated by the CA, one of the elements of the crime of estafa with abuse of confidence
under Article 315, par. 1(b) of the Revised Penal Code is a demand made by the offended party
to the offender. Since the alleged offended party is Saag Phils., Inc., the validity of the demand
for the delivery of the subject vehicles rests upon the authority of the person making such a
demand on the company’s behalf. Private respondent is challenging petitioner’s authority to
act for Saag Phils., Inc. Taken in this light, if the supposed authority of petitioner is found to
be defective, it is as if no demand was ever made, hence, the prosecution for estafa cannot
prosper. Moreover, the mere failure to return the thing received for safekeeping or on
commission, or for administration, or under any other obligation involving the duty to deliver or to
return the same or deliver the value thereof to the owner could only give rise to a civil action
and does not constitute the crime of estafa. This is because the crime is committed by
misappropriating or converting money or goods received by the offender under a lawful
transaction. The crime of estafa is not committed by the failure to return the things received for
sale on commission, or to deliver their value, but, as this class of crime is defined by law, by
misappropriating or converting the money or goods received on commission. Delay in the
fulfillment of a commission or in the delivery of the sum on such account received only involves
civil liability. So long as the money that a person is under obligation to deliver is not demanded of
him, and he fails to deliver it for having wrongfully disposed of it, there is no estafa, whatever be
the cause of the debt. Likewise, by analogy, the doctrine of primary jurisdiction may be
applied in this case. The issues raised are proper subjects for the determination of the tribunal
hearing the intra-corporate case which in this case is the RTC of Mandaluyong. Hence, the RTC
of Mandaluyong where the intra-corporate case is pending has the primary jurisdiction to
determine the issues under contention relating to the status of the domestic corporation,
Saag Phils., Inc., vis-à-vis Saag Pte. Ltd.; and the authority of petitioner to act on behalf of the
domestic corporation, the determination of which will have a direct bearing on the criminal
case. The law recognizes that, in place of the SEC, the regular courts now have the legal
competence to decide intra-corporate disputes.
does not affect the estafa case, hence, it is not a PQ.

d. There is a prejudicial question when a civil action and a criminal action
are both pending, and there exists in the civil action an issue which must be
preemptively resolved before the criminal action may proceed because the
issue raised in the civil action is resolved would be determinative of the guilt
or innocence of the accused in the criminal case. The issue in the annulment
of marriage is not similar or intimately related to the issue in the criminal
case for parricide, hence, no PQ.145
7. When PQ does not apply:
a. Both cases are civil in nature; PQ is a technical term under Rule 111,
and so don’t use it in a literary sense.
b. Both are criminal cases;
c. One is Civil and the other one is Administrative;
d. If one is Administrative and the other is Criminal
*****XPN: SM Properties vs. Sec. Perez, supra, where the
administrative case was in the nature of a civil case!
e. If the criminal case came before the civil case (according to Rule 111)
f. There is no PQ under BP 22: the elements of the civil case are not
identical, where knowledge if insufficiency of funds is a violation;
g. Does not apply to disbarment proceedings, because the letters is sui
generis.146
h. no PQ: The resolution of the issue in the civil case for accounting
will not determine whether the criminal action for estafa may proceed.147 But
145 [] Q: Is the resolution of the action for annulment of marriage a prejudicial question that warrants the
suspension of the criminal case for frustrated parricide? NO. There is a prejudicial question when a civil
action and a criminal action are both pending, and there exists in the civil action an issue which must be
preemptively resolved before the criminal action may proceed because the issue raised in the civil action is
resolved would be determinative of the guilt or innocence of the accused in the criminal case. The issue
in the annulment of marriage is not similar or intimately related to the issue in the criminal case for
parricide. Further, the relationship between the offender and the victim is not determinative of the guilt
or innocence of the accused. ****Even if the marriage between petitioner and respondent is annulled,
petitioner could still be held criminally liable since at the time of the commission of the alleged crime, he was
still married to respondent (Pimentel vs. Pimentel, G.R. No. 172060, September 13, 2010).
146 [] Q: Atty. Alfred obtained a loan from Bing covered by several postdated checks. The checks were
dishonored by the bank when Bing tried to encash them. Bing filed a case for violation of BP 22 before
the MTC. Bing also filed a disbarment case. Atty. Alfred argues that the criminal prosecution
constitutes a prejudicial question in the administrative proceedings for his disbarment. Is Atty. Alfred
correct? NO. ****Administrative cases against lawyers are sui generis. They are distinct from and
may proceed independently of criminal cases. The burden of proof in a criminal case is guilt beyond
reasonable doubt while in an administrative case only substantial evidence is required. Thus, a criminal
prosecution will not constitute a prejudicial question even if the same facts and circumstances are
attendant in the administrative proceedings (Yu v. Palaña, A.C. No. 7747, July 14, 2008).
147
[] Bar 2000: Ana, for failure to remit to Bong the money collected and instead deposited the
same to the latter’s personal account, was charged with estafa. Ana filed a motion to suspend the
proceedings pending resolution of a civil case earlier filed for accounting and damages regarding
the same subject matter. How should the prosecutor oppose the motion? ****The civil case filed
there is PQ if the civil case is questioned the deed of sale based on forgery of
signature, which will determine if estafa will arise.148
i. petition for annulment of marriage is not prejudicial to a bigamy
case.149
by Bong against Ana for accounting and damages does not involve an issue similar to or
intimately related to the issue of estafa raised in the criminal action. The resolution of the issue
in the civil case for accounting will not determine whether the criminal action for estafa may
proceed.
****For the principle of prejudicial question to apply, it is essential that there be two
cases involved, invariably a civil case and a criminal case. If the two cases are both civil or if they
are both criminal, the principle does not apply. The law limits a prejudicial question to a
previously instituted civil action not to a subsequent one.
[] Q: CX is charged with estafa in court for failure to remit to MM sums of money
collected by him (CX) for MM in payment for goods purchased from MM, by depositing the
amounts in his (CX’s) personal bank account. CX files a motion to suspend proceedings
pending resolution of a civil case earlier filed in court by CX against MM for accounting
and damages involving the amounts subject of the criminal case. As the prosecutor in the
criminal case, briefly discuss your grounds in support of your opposition to the motion to suspend
proceedings. (5%) (2000 Bar Question) SUGGESTED ANSWER:
As the prosecutor, I will argue that the motion to suspend is not in order for the following
reasons: a. The civil case filed by CX against MM for accounting and damages does not
involve an issue similar to or intimately related to the issue of estafa raised in the criminal
action; b. The resolution of the issue in the civil case for accounting will not determine
whether or not the criminal action for estafa may proceed. (Sec. 5, Rule 111, Rules of Criminal
Procedure.
148 [] Bar 1997: Andrew allegedly sold to Brian a parcel of land which Andrew later also sold to Xavier.
Brian brought a civil action for nullification of the second sale and asked that the sale made by Andrew
in his favor be declared valid. Andrew claims that he never sold the property to Brian and his purported
signatures appearing in the first deed of sale were forgeries. Thereafter, an information for estafa was filed
against Andrew based on the same double sale that was the subject of the civil action. Andrew filed a
"motion for suspension of action" in the criminal case, contending that the resolution of the issues in
the civil case would necessarily be determinative of his guilt or innocence. Is the suspension of the
criminal action in order? YES. ****The suspension of the criminal action is in order because the
defense of Andrew in the civil action, that he never sold the property to Brian and that his purported signatures in the
first deed of sale were forgeries, is a prejudicial question, the resolution of which is determinative of his guilt
or innocence. If the first sale is null and void, there would be no double sale and Andrew would be innocent
of the offense of estafa.
149 Q: Solomon and Faith got married in 2005. In 2010, Solomon contracted a second marriage with
Hope. When Faith found out about the second marriage of Solomon and Hope, she filed a criminal case
for bigamy before the Regional Trial Court (RTC) of Manila sometime in 2011. Meanwhile, Solomon
filed a petition for declaration of nullity of his first marriage with Faith in 2012, while the case for bigamy
before the RTC of Manila is ongoing. Subsequently, Solomon filed a motion to suspend the
proceedings in the bigamy case on the ground of prejudicial question. He asserts that the proceedings in
the criminal case should be suspended because if his first marriage with Faith will be declared null and void,
it will have the effect of exculpating him from the crime of bigamy. Decide. (2014)
A: The motion filed by Solomon should be denied. The elements of prejudicial question are: (1)
the previous instituted civil action involves an issue similar or intimately related to the issue determines
the subsequent criminal action; and (2) the resolution of such issue determines whether or not the
criminal action may proceed. In order for a prejudicial question to exist, the civil action must precede
the filing of the criminal action (Dreamwork Construction, Inc. v. Janiola, G.R. No. 184861, June 30, 2009).
Since the criminal case for bigamy was filed ahead of the civil action for declaration of nullity of
5.3.6. Rule on filing fees in civil action deemed instituted with the
criminal action
*Cf. all about docket fees in Part I.
——————————————————————————————
marriage, there is no prejudicial question. At any rate, the outcome of the civil case for annulment has
no bearing upon the determination of the guilt or innocence of the accused in the criminal case for bigamy
because the accused has already committed the crime of bigamy when he contracted the second
marriage without the first marriage having being declared null and void. Otherwise stated, he who
contracts marriage during the subsistence of a previously contracted marriage runs the risk of being
prosecuted for bigamy.
5.4. Preliminary investigation [Rule 112]
5.4.1. Nature of right 118

5.4.2. Purposes of preliminary investigation 118
5.4.3. Who may conduct determination of existence of probable cause 120
5.4.4. Resolution of investigation prosecutor 122
5.4.5. Review 123
5.4.6. When warrant of arrest may issue 125
5.4.7. Cases not requiring a preliminary investigation 127
5.4.8. Remedies of accused if there was no preliminary investigation 128
5.4.9. Inquest (not Inquies!) 129
——————————————————————————————
5.4.1. Nature of right

1. Preliminary Investigation: It 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 (Sec. 1, Rule 112).
It is MERELY INQUISITORIAL and a means of determining the
persons who may be reasonably charged with a crime. It is NOT A TRIAL
of the case on the merits (Herrera, 2007).
A preliminary investigation is in effect a realistic judicial APPRAISAL
of the merits of the case. Sufficient proof of the guilt of the accused must be
adduced so that when the case is tried, the trial court may not be bound as a
matter of law to order an acquittal (Cojuangco, Jr. vs. PCGG, et. al, as held in
Uy v. Ombudsman, G.R. Nos. 156399-400, June 27, 2008). (TOM: the word
‘judicial’ here is used in a loose sense, since PI is done outside the court).
It is not part of the trial of the criminal action in court. Nor is its
record part of the record of the case in the RTC. ****The dismissal of the
case by the investigator will NOT BAR the filing of another complaint
for the same offense, but if re-filed, the accused is entitled to another
preliminary investigation (US v. Marfori, G.R. No. 10905, December 9,
1916).
2. WHEN REQUIRED:
*GR: Before the filing of a complaint or information for an offense
where the penalty prescribed by law is imprisonment of at least 4 years, 2
months and 1 day without regard to the imposable fine (Sec. 1, Rule 112).
*XPNs:
a. Where an information or complaint is filed pursuant to Sec. 7,150 Rule

112, i.e., the complaint or information is FILED DIRECTLY in court (Ibid.);
or
b. For cases requiring preliminary investigation, when a person is lawfully
arrested without a warrant provided that inquest was made in accordance with
Rule 112 (Sec. 6, Rule 112).
******Cases falling under summary procedure or punishable with a
penalty of imprisonment less than 4 yrs., 2 months and 1 day do NOT
require preliminary investigation [NB: Judge Joel said in current practice they
do].
3. DOCUMENTS ACCOMPANYING the complaint
a. The affidavits of the complainant;
b. The affidavits of his witnesses; and
c. Other supporting documents that would establish probable cause
(Sec. 3(a) Rule 112).
[] The affidavits of the complainant shall be subscribed and sworn to
before:
i. Any prosecutor;
ii. Before any government official authorized to administer oaths;
or
iii. In the absence or unavailability of the above mentioned, the
affidavits may be subscribed and sworn to before a notary public.
The officer or notary public before whom the affidavits were
subscribed and sworn to must certify that he personally examined the
affiants and that he is satisfied that they voluntarily executed and
understood their affidavits (Sec. 3(a), Rule 112).
4. DUTY OF THE INVESTIGATING OFFICER—From the filing of the
complaint, the investigating officer has 10 DAYS within which to decide on
which of the following options to take:
a. To dismiss the complaint if he finds no ground to conduct the investigation;
or
b. To issue a subpoena in case he finds the need to continue with the
investigation, in which case the subpoena shall be accompanied with the complaint and
its supporting affidavits and documents (Sec. 3(b), Rule 112). NB: Within 10 days
from receipt of subpoena, the respondent is required to submit his counter-
affidavit, the affidavits of his witnesses and the supporting documents
150Section 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 office directly with the proper court on the basis of
the affidavit of the offended party or arresting officer or person…
relied upon for his defense (Sec. 3(c), Rule 112).

****Despite the subpoena, if the respondent does not submit his
counter-affidavit within the ten-day period granted him, the investigating
officer shall resolve the complaint based on the evidence presented by the
complainant. The same rule shall apply in case the respondent cannot be
subpoenaed (Sec. 3(d) Rule 112).
5. Filing of MOTION TO DISMISS during preliminary investigation
*GR: In preliminary investigation, a motion to dismiss is NOT AN
ACCEPTED PLEADING for it merely alleges the innocence of the
respondent without rebutting or repudiating the evidence of the
complainant.
****XPN: When it contains countervailing evidence or defenses and
evidence which rebuts or repudiates the charges; in which case it will be
treated as a counter-affidavit.
*NB: If one files a motion to dismiss and he only asserts that the case
should be dismissed, then the motion to dismiss is a mere scrap of paper. If
the respondent does not later on submit a counter-affidavit, it will constitute a
waiver on his part to file a counter-affidavit.
6. CLARIFICATORY HEARING IS NOT MANDATORY: A hearing
may be set by the investigating officer only when there are facts and issues
to be clarified either from a party or a witness, which shall be conducted
within ten days from the submission of the counter-affidavit, other affidavits and
documents filed by the respondent.
****The parties do not have the right to examine or cross-examine
each other or the witnesses. If they have questions to ask, they shall submit
the questions to the investigating officer who shall ask the questions (Sec.
3(e), Rule 112).
7. DUTY OF THE PROSECUTOR AFTER THE TERMINATION of
investigation: ****Within 10 days from the termination of the investigation,
the investigating prosecutor shall determine whether or not there is sufficient ground
to hold the respondent for trial (Sec. 3(f), Rule 112).
a. Afterwards, if the investigating officer finds cause to hold the
respondent for trial, he shall prepare the resolution and information.
b. Otherwise, he shall recommend the dismissal of the complaint (Sec.
4, Rule 112).151
5.4.2. Purposes of preliminary investigation

1. PURPOSES of PI:
151If the Information is not accompanied by a certification that a preliminary investigation has been
conducted, is the Information void? [3%]
No. The certification which is provided in Sec. 4, Rule 112, Rules of Criminal Procedure, is not an
indispensable part of the information. (People us. Lapura, 255 SCRA 85.)
a. For the investigating prosecutor to determine if the crime has been

committed;
b. To protect the accused from inconvenience, expense and burden of defending
himself in a formal trial unless probability of his guilt is first ascertained by a
competent officer;
c. To secure the innocent against hasty, malicious, and oppressive
prosecution and to protect him from an open and public accusation of a
crime and anxiety of a public trial;
d. To protect the State from having to conduct useless and
expensive trial; and
e. To determine the amount of bail, if the offense is bailable (Herrera,
2007).
2. WAIVER OF THE RIGHT to preliminary investigation: ****While the
right to preliminary investigation is a substantive right and not a mere
formal or technical right of the accused, nevertheless, the right to preliminary
investigation is DEEMED WAIVED when the accused fails to invoke it
before or at the time of entering a plea at arraignment (People v. Buluran, G.R.
No. 113940, February 15, 2000). It shall be deemed waived by:
a. Express waiver or by silence (Herrera, 2007);
*The waiver, whether express or implied, must be in a clear and
unequivocal manner (Herrera, 2007).
b. Failure to invoke it during arraignment (People v. De Asis, G.R. No.
105581, December 7, 1993); and
c. Consenting to be arraigned and entering a plea of not guilty
without invoking the right to preliminary investigation (People v. Bulosan, G.R.
No. 58404, April 15, 1988).
3. ABSENCE of a preliminary investigation does NOT:
a. Become a ground for a motion to quash the complaint or
information as it does not impair the validity of the information or affect
the jurisdiction of the trial court (Sec. 3, Rule 117; People v. Buluran, G.R.
No. 113940,
February 15, 2000);
b. Affect the court’s jurisdiction but merely the regularity of the
proceedings (People v. De Asis, G.R. No. 105581, December 7, 1993);
c. Impair the validity of the information or render it defective; and
d. Justify the release of the respondent or nullify the warrant of arrest
against him (Larranaga v. CA, G.R. No. 130644, March 13, 1998).
4. On raising the lack of PI
a. ****If the accused raises the issue of lack of preliminary
investigation before entering a plea, the COURT, instead of dismissing the
information, should conduct the preliminary investigation OR ORDER
the prosecutor to conduct it (Ibid.).

b. The right to preliminary investigation cannot be raised for the first
time on appeal (Pilapil v. Sandiganbayan, G.R. No. 101978, April 7, 1993).
c. If lack of preliminary investigation is raised in a proceeding pending before
the Sandiganbayan, the proceeding will be held in abeyance and case should
be remanded to the Office of the Ombudsman or the Special Prosecutor
to conduct the preliminary investigation (Ong v. Sandiganbayan, G.R. No.
126858, September 26, 2005).
5. RIGHTS OF THE RESPONDENT in a preliminary investigation
a. Submit a counter affidavit; NB: The prosecutor is not mandated to
require the submission of counter-affidavits. Probable cause may then be
determined on the basis alone of the affidavits and supporting documents of
the complainant, without infringing on the constitutional rights of the
petitioners (Borlongan, Jr. v. Pena, G.R. No. 143591, November 23, 2007).
b. Examine the evidence submitted by the complainant at his own
expense; and [NB: Object evidence need not to be furnished but is available
for examination, copying or photographing at the expense of the requesting
party (Sec. 3, Rule 112).]
c. Be present during the clarificatory hearing (Sec. 3, Rule 112).
5.4.3. Who may conduct determination of existence of probable cause

1. <PROBABLE CAUSE> in preliminary investigation: It is the existence of
such facts and circumstances as would excite belief in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the person
charged was prosecuted. A finding of probable cause merely binds over the
suspect to stand trial. It is NOT A PRONOUNCEMENT OF GUILT
(Sps. Balangauan v. CA, G.R. No. 174350, August 13, 2008).
2. PERSONS AUTHORIZED to conduct a preliminary investigation [Their
authority to conduct preliminary investigation shall include all crimes
cognizable by the proper court in their respective territorial jurisdiction (Sec. 2,
Rule 112)]
a. Provincial or city prosecutors and their assistants;
b. National and Regional State Prosecutors; and
c. Other officers as may be authorized by law****
i. Prosecutors of the office of the Ombudsman;
ii. Ombudsman authorized officer deputized by COMELEC
for election offenses or (according to D. Riano), a legal officer of the Comelec
irt election cases;
iii. Investigators of the PCGG irt ill-gotten wealth.
[] EXTENT OF AUTHORITY of the OMBUDSMAN in the
conduct of preliminary investigation: The Ombudsman has primary authority
to investigate and exclusive authority to file and prosecute Sandiganbayan

cases (Ledesma v. CA, G.R. No. 161629, July 29, 2005). The Ombudsman is
authorized to take over at any stage, from any investigatory agency of the
government, the investigation of such cases (Sec. 15, RA 6770). The power to
investigate and to prosecute granted to the Ombudsman is PLENARY AND
UNQUALIFIED. It pertains to any act or omission of any public officer or employee
when such act or omission appears to be illegal, unjust, improper or inefficient.
**The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by the regular courts (Office of the
Ombudsman v. Breva, G.R. No. 145938, February 10, 2006). ****This
however does not include administrative cases of court personnel because the
1987 Constitution vests in the SC administrative supervision over all
courts and court personnel.
[] Party to conduct preliminary investigation in ELECTION CASES:
The Commission on Elections is vested the power to conduct
preliminary investigations; it may deputize other prosecuting arms of the
government to conduct preliminary investigation and prosecute offenses
(People v. Basilla, G.R. No. 83938-40, November 6, 1989).
3. COURT INTERFERENCE in the conduct of preliminary investigation
a. GR: The courts cannot interfere in the conduct of preliminary
investigations, leaving the investigatory officers sufficient discretion to
determine probable cause.
b. ****XPN: When the acts of the officer are without or in excess of
authority resulting from a grave abuse of discretion (Sps. Balangauan v. CA,
G.R. No. 174350, August 13, 2008).
5.4.4. Resolution of investigation prosecutor

1. If the investigating prosecutor finds cause to hold the defendant for trial, he
shall prepare the resolution and information (Sec. 4, Rule 112). The
information shall contain a certification by the investigating officer under oath
in which he shall certify the following:
a. That he, or as shown by the record, an authorized officer, has
personally examined the complainant and his witnesses;
b. That there is reasonable ground to believe that a crime has been
committed;
c. That the accused is probably guilty thereof
d. That the accused was informed of the complaint and of the
evidence submitted against him; and
e. That he was given an opportunity to submit controverting
evidence (Sec. 4, Rule 112).
2. Within 5 days from the issuance this resolution, the investigating
prosecutor shall forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the Ombudsman or his deputy
by the Sandiganbayan in the exercise of its original jurisdiction.
[] The resolution of the investigating prosecutor is MERELY
RECOMMENDATORY. 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 (Sec. 4, Rule 112).
3. They shall act on the resolution within ten days from their receipt thereof
and shall immediately inform the parties of such action (Sec. 4, Rule 112).
[] Different findings between the investigating prosecutor and superior
prosecutor: When the Investigating Prosecutor recommends the dismissal
of the complaint but his findings are reversed by the “Superior” Prosecutor
or Ombudsman on the ground that probable cause exists, the “superior”
prosecutor or Ombudsman may by himself, file the information against the
respondent, or direct another assistant prosecutor to do so without conducting
another preliminary investigation (Sec. 4, Rule 112).
4. Preventive suspension is 6 months except career executive officers under the
civil service law which is 3 months: [] Bar 2005: Regional Director August of
the DPWH was charged with violation of Sec. 3(e) of RA 3019 in the Office of
the Ombudsman. An administrative charge was likewise filed against him in the
same office. The Ombudsman assigned a team composed of investigators
from the Office of the Special Prosecutor and from the Office of the Deputy
Ombudsman for the Military to conduct a joint investigation of the criminal
case and administrative cases. The team of investigators recommended to
the Ombudsman that August be preventively suspended for a period not
exceeding 6 months on its finding that the evidence of guilt is strong. The
Ombudsman issued the said order as recommended by the investigators.
August moved to reconsider the order on the following grounds: (a) the
Office of the Special Prosecutor had exclusive authority to conduct a preliminary
investigation of the criminal case; (b) the order for his preventive suspension was
premature because he had yet to file his answer to the administrative
complaint. Resolve with reasons the motion of respondent August: The
motion should be denied for the following reasons:
a. The Office of the Special Prosecutor does not have exclusive authority to
conduct a preliminary investigation of the criminal case. It may participate
in the investigation together with the Deputy Ombudsman for the Military
who can handle cases of civilians;
b. The order of preventive suspension need not wait for the answer
to the administrative complaint and the submission of countervailing evidence
(Garcia v. Mojica, G.R. No. 13903, September 10, 1999). Preventive
suspension pursuant to Sec. 24 of the Ombudsman Act of 1989 shall

continue until termination of the case but shall not exceed 6 months
except in relation to RA 3019 (Anti-Graft and Corrupt Practices) and PD 807 (statute
providing for the organization of CSC in accordance with the provision of the
Constitution prescribing the powers and functions and other purposes). ****As
a career executive officer, his preventive suspension under the Civil Service
Law may only be for a maximum period of 3 months. The period of
suspension under the Anti-Graft Law shall be the same pursuant to the
equal protection clause (Garcia v. Mojica, ibid.).
5.4.5. Review
1. Remedy of the aggrieved party from the resolution of the Investigating
Prosecutor as approved by his superior: An aggrieved party may APPEAL by
filing a verified petition for review with the Secretary of Justice and by
furnishing copies thereof to the adverse party and prosecution office issuing
the appealed resolution.
[] Bar 1999: *****May a prosecutor be compelled by mandamus to
file a complaint regarding a complaint filed which he previously dismissed for
lack of merit after preliminary investigation?
a. GR: NO. This is because the determination of probable cause is
within the discretion152 of the prosecutor. The remedy is an appeal to the
Secretary of Justice.
b. XPN: There is prima facie evidence that the offense was committed
by the accused [according to D. Riano]
2. The appeal shall be taken within 15 days from receipt of the resolution or of
the denial of the motion for reconsideration/reinvestigation if one has been filed within
15 days from receipt of the assailed resolution. Only one motion for
reconsideration shall be allowed. ****Unless the Secretary directs otherwise, the
appeal shall not stay the filing of the corresponding information in court
on the basis of the finding of probable cause in the assailed decision.
3. The decision of the prosecutor may be reviewed by the courts when he acts
with grave abuse of discretion amounting to lack of jurisdiction (Herrera,
2007).
4. DECISION OF SOJ: Reversal or modification of the Resolution of the
Provincial or City Prosecutor: ****The Secretary of Justice may MOTU
PROPRIO reverse or modify the resolution of provincial or city prosecutor
152Q: A filed with the Office of the Fiscal a Complaint for estafa against B. After the preliminary
investigation, the Fiscal dismissed the Complaint for lack of merit. May the Fiscal be compelled by
mandamus to file the case in court? Explain. (2%) (1999 Bar Question) SUGGESTED ANSWER:
No. The public prosecutor may not be compelled by mandamus to file the case in court because
the determination of probable cause is within the discretion of the prosecutor. The remedy is an appeal
to the Secretary of Justice. (Sec. 4 Rule 112.)
or chief state prosecutor. The Secretary of justice may review resolutions of

his subordinates in criminal cases DESPITE the information being
FILED in court (Community Rural Bank of Guimba v. Talavera, A.M. No.
RTJ-05-1909, April 6, 2005). The Secretary of Justice exercises the POWER
OF DIRECT CONTROL AND SUPERVISION over prosecutors, and
may thus AFFIRM, NULLIFY, REVERSE OR MODIFY their rulings. In
reviewing resolutions of state prosecutors, the Secretary of Justice is not
precluded from considering errors, ALTHOUGH UNASSIGNED, for
the purpose of determining whether there is probable cause for filing
cases in court.
If 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
a. to file the corresponding information without conducting another
preliminary investigation, or
b. to dismiss or move for dismissal of the complaint or information with
notice to the parties (Sec. 4, Rule 112).
5. REMEDY of an aggrieved party against a Resolution of the Secretary of
Justice:
a. ****The resolution of the Secretary of Justice is appealable
administratively before the Office of the President, and the decision of
the latter may be appealed before the CA pursuant to Rule 43 (De Ocampo
v. Secretary of Justice, G.R. No. 147392, January 25, 2006).
b. However, if there is grave abuse of discretion resulting to lack or excess of
jurisdiction, a petition for certiorari under Rule 65 may be filed (Ching v.
Secretary of Justice, G.R. No. 164317, February 6, 2006).
6. REMEDY of an aggrieved party against the Resolution of the
Ombudsman: ****
a. The resolution of the Ombudsman in ADMINISTRATIVE cases
may be subject of petition for review via Rule 43 before the CA (Sec. 7, Rule
III of the Rules of Procedure of the Office of the Ombudsman)
b. or a special civil action for certiorari via Rule 65 before the SC in
CRIMINAL cases (Mendoza-Arce v. Ombudsman, G.R. No. 149148, April 5,
2002).
7. EFFECT OF THE FILING OF A PETITION FOR REVIEW before
the DOJ if the Information was already filed in court: Should the information
be already filed in court but the accused filed a petition for review of the
findings of the prosecutors with the DOJ, ****the COURT IS BOUND TO
SUSPEND the ARRAIGNMENT of the accused for a period not
exceeding 60 days (Sec. 11, Rule 116).
8. Do the SC and CA have the power to review preliminary investigations?
YES. ****The SC and CA have the power to review the findings of

prosecutors in preliminary investigations. Courts should never shirk from
exercising their power, when the circumstances warrant, to determine whether
the prosecutor’s findings are supported by the facts, or by the law. In so
doing, courts do not act as prosecutors but as organs of the judiciary,
exercising their mandate under the Constitution, relevant statutes, and
remedial rules to settle cases and controversies. The exercise of this COURT’S
REVIEW POWER ensures that, on the one hand, probable criminals are
prosecuted and, on the other hand, the innocent are spared from baseless
prosecution (Social Security System v. DOJ, G.R. No. 158131, August 8,
2007).
****Even the RTCs can also make its own determination, upon
proper motion, whether probable cause exists to hold the accused for trial (Ladlad v.
Velasco, G.R. Nos. 172070-72, June 1, 2007).
5.4.6. When WARRANT OF ARREST may issue

1. Actions by the judge upon the filing of the Complaint or Information:
****Within 10 days from the filing of the complaint or Information, the
judge shall personally evaluate the resolution of the prosecutor. In
conducting the evaluation of the resolution, the judge shall look into
supporting evidence (Sec. 5, Rule 112). NB: ******It bears stressing that the
judge is required to PERSONALLY EVALUATE153 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 (Ong v. Genio, G.R. No. 182336, December 23,
2009).
2. *****OPTIONS of the judge upon the filing of an Information
a. Dismiss the case if the evidence on record clearly failed to establish probable
cause;
b. If he or she finds probable cause, issue a warrant of arrest or issue a
commitment order if the accused has already been arrested pursuant to a warrant of
arrest or lawfully arrested without warrant; and
c. ****In case of doubt as to the existence of probable cause, order
the prosecutor to present additional evidence within five days from
notice, the issue to be resolved by the court within thirty days from the filing of
the information.
153Upon review, the Secretary of Justice ordered the public prosecutor to file a motion to withdraw the
information for estafa against Sagun for lack of probable cause. The public prosecutor complied. Is the trial
court bound to grant the withdrawal? (2011 BAR)
(A) Yes, since the prosecution of an action is a prerogative of the public prosecutor.
(B) No, since the complainant has already acquired a vested right in the information.
(C) No, since the court has the power after the case is filed to itself determine probable cause.
(D) Yes, since the decision of the Secretary of Justice in criminal matters is binding on courts.
3. Complaint filed pursuant to a lawful warrantless arrest: The court shall

issue a commitment order instead of a warrant of arrest. In case the judge
doubts the existence of probable cause, the judge may order the prosecution to
submit additional evidence within 5 days from notice. The issue must be
resolved by the court within 30 days from the filing of the complaint or
Information (Sec. 5, Rule 122, Rules of Court as amended by A.M. 05-08-26-
SC, August 30, 2005).
5.4.7. Cases not requiring a preliminary investigation

1. No need for PI:
a. When the penalty prescribed by law for the offense involves an
imprisonment of less than 4 yrs., 2 mos., and 1 day;
b. If a person is arrested lawfully without a warrant involving an
offense which requires preliminary investigation, an Information or complaint
may be filed against him without need for a preliminary investigation provided an
INQUEST has been conducted in accordance with existing rules (Sec. 6 Rule 112
as amended by A.M. No. 05-08-26-SC, August 30, 2005). ****Thus, if a person
is arrested by a police officer in flagrante delicto while robbing the victim,
the arrest is a lawful one and a preliminary investigation is not required
even if the penalty for robbery is more than 4 yrs., 2 mos., and 1 day
(Riano, 2011).
2. Institution of cases when preliminary investigation is NOT required
a. By filing the complaint directly with the prosecutor; or [NB: The
prosecutor shall act on the complaint based on the affidavits and other
supporting documents submitted by the complainant within 10 days from
its filing (Sec. 8(a), Rule 112).]
b. By filing the complaint or Information with the MTC.
3. Instances when amendment of an Information does NOT warrant a
new preliminary investigation
a. Amendment to information is not substantial (Villaflor v. Vivar, G.R.
No. 134744, January 16, 2001);
b. The court orders the filing of correct information involving a
COGNATE OFFENSE (Sy Lim v. CA, G.R. No. L-37494, March 30,1982);
and
c. If the crime originally charged is RELATED to the amended
charge such that an inquiry into one would elicit SUBSTANTIALLY the
SAME facts that an inquiry to another would reveal (Orquinaza v. People,
G.R. No. 165596, November 15, 2005; Herrera, 2007).
4. Instances when amendment of an information warrants a new preliminary
investigation
a. If the amendment of the information CHANGES THE NATURE
of the crime charged (Luciano v. Mariano, G.R. No. L-32950, July 30, 1971);
or
b. When ON ITS FACE the information is null and void for lack of
authority to file the same and cannot be cured or revived by an
amendment (Cruz, Sr. v. Sandiganbayan, G.R. No. 94595, February 26, 1995).
5.4.8. Remedies of accused if there was no preliminary investigation154

1. ****Period to properly question the lack of preliminary investigation:155
The accused must do so BEFORE HE ENTERS HIS PLEA. The court
shall resolve the matter as early as practicable but not later than the start of
the trial. ******An application for or admission of the accused to bail does
not bar him from raising such question (Sec. 26, Rule 114).156
154 Q: A criminal information is filed in court charging Anselmo with homicide. Anselmo files a motion to
quash the information on the ground that no preliminary investigation was conducted. Will the motion be
granted? Why or why not? (3%) (2006 Bar Question) SUGGESTED ANSWER:
NO, the motion to quash will not be granted. *****The lack of preliminary investigation is not a
ground for a motion to quash under the Rules of Criminal Procedure. Preliminary investigation is only
a statutory right and can be waived. The accused should instead file a motion for reinvestigation
within five (5) days after he learns of the filing in Court of the case against him (Sec. 6, Rule 112, as
amended).
155 What is the remedy of the accused if the trial court erroneously denies his motion for preliminary
investigation of the charge against him? (2011 BAR)

(A) Wait for judgment and, on appeal from it, assign such denial as error.
(B) None since such order is final and executory.
(C) Ask for reconsideration; if denied, file petition for certiorari and prohibition.
(D) Appeal the order denying the motion for preliminary investigation.
156 Q: You are the defense counsel of Angela Bituin who has been charged under RA 3019 ( Anti-Graft
and Corrupt Practices Act ) before the Sandiganbayan. While Angela has posted bail, she has yet to be
arraigned. Angela revealed to you that she has not been investigated for any offense and that it was only
when police officers showed up at her residence with a warrant of arrest that she learned of the
pending case against her. She wonders why she has been charged before the Sandiganbayan when she is
not in government service.
a) What "before-trial" remedy would you invoke in Angela’s behalf to address the fact that she
had not been investigated at all, and how would you avail of this remedy? (2013 BAR) A: I will file a
motion for the conduct of preliminary investigation or reinvestigation and the quashal or recall of
the warrant of arrest in the Court where the case is pending with an additional prayer to suspend the
arraignment. Under Section 6, Rule 112 of the Rules of Court, after filing of the complaint or
information in court without a preliminary investigation, the accused may within five days from the
time he learns of its filing ask for a preliminary investigation with the same right to adduce evidence in
his defense. Moreover, Section 26, Rule 114 of the Rules of Criminal Procedure provides that 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 therefor, 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 as but not later
than the start of the trial of the case.
b) What "during-trial" remedy can you use to allow an early evaluation of the prosecution
evidence without the need of presenting defense evidence; when and how can you avail of this remedy?
(2013 BAR) A: I will file first a motion for leave to file a demurrer within five (5) days from the time
the prosecution rested its case. If the same is granted, then I will now file a demurrer to evidence
within ten (10) days (Sec. 23, Rule 119). This remedy would allow the evaluation of the sufficiency of
2. REMEDIES available to the accused if there was no preliminary

investigation conducted pursuant to a lawful warrantless arrest
a. Before the complaint or Information is filed, the person arrested may ask for
a preliminary investigation but he must sign a waiver of the provisions of
Art. 125 of the RPC, as amended, in the presence of his counsel;
****Art. 125 of the RPC deals with the period of delay in the
delivery of detained persons to the proper judicial authorities. In every
case, the person detained shall be informed of the cause of his detention and
shall be allowed upon his request, to communicate and confer at any time
with his attorney or counsel (Art. 125, RPC).
b. The waiver by the person lawfully arrested of the provisions of Art. 125
of the RPC does not preclude him from applying for bail;
[] Q: The accused was arrested lawfully without a warrant for
carnapping and detained at Camp Crame in Quezon City. He asked for a
preliminary investigation and signed a waiver of the provisions of Art. 125 of
the RPC. However, the assisting judge of the RTC in Marikina approved
the bail bond for the accused who was being held in Quezon City. Was the
approval of the bail bond proper? NO. ****The bail must be applied for and
issued by the court in the province, city, or municipality where the
person arrested is held. In this case, the bail application should have been
filed with a Quezon City court which has the authority to grant the bail and
not Marikina court (Ruiz v. Beldia, Jr., A.M. No. RTJ-02-1731, February 16,
2005).
c. After the filing of the complaint or Information in court without a preliminary
investigation, the accused may, within 5 days157 from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce
evidence in his evidence as provided in this Rule (Sec. 6, Rule 112).
5.4.9. Inquest158 (not Inquies!)

1. It is an INFORMAL AND SUMMARY investigation conducted by a
prosecution’s evidence without the need of presenting defense evidence. It may be done through the
court’s initiative or upon motion of the accused and after the prosecution rested its case (Sec. 23, Rule
119).
157 W was arrested in the act of committing a crime on October 1, 2011. After an inquest hearing, an
information was filed against W and his lawyer learned of the same on October 5, 2011. W wants to file a
motion for preliminary investigation and therefore he has only up to _____ to file the same. (2012 BAR)
a. October20,2011;
b. October 10, 2011;
c. November 15, 2011;
d. October16,2011.
158 When may an information be filed in court without the preliminary investigation required in the
particular case being first conducted? (2011 BAR)

(A) Following an inquest, in cases of those lawfully arrested without a warrant.
public prosecutor in criminal cases involving persons arrested and detained

without the benefit of a warrant of arrest issued by the court for the purpose
of determining whether or not said persons should remain under custody and
correspondingly be charged in court (Sec. 1, DOJ Circular No. 61).
*****Inquest applies only if there is a valid warrantless arrest—if there is a

warrant of arrest, Inquest will not apply: a preliminary investigation must be
conducted instead.159 160
2. Inquest is an investigation only to consider the evidence of the victim

and the arresting officer. It presupposes that there is an Inquest
Prosecutor, otherwise, it’s useless. In the absence of an Inquest prosecutor,
the complaint may be filed by the offended party or by a peace officer directly with the
proper court on the basis of the affidavit of the offended party or
arresting officer/person.
a. *****But before such complaint/info is filed, the person arrested may ask
for a preliminary investigation (PI), but he must sign a waiver of the
provisions of Art. 125161 RPC, in the presence of counsel. Notwithstanding
such waiver, he may apply for bail, and the investigation must be
(B) When the accused, while under custodial investigation, informs the arresting officers that he is waiving
his right to preliminary investigation.
(C) When the accused fails to challenge the validity of the warrantless arrest at his arraignment.
(D) When the arresting officers take the suspect before the judge who issues a detention order against him.
159 ****If there is lawful arrest with a warrant, a PI is conducted. If there is a lawful warrantless arrest
involving an offense which requires PI, the complaint or information may be filed by a prosecutor without
need of a PI, provided an Inquest has been conducted.
160
BAR 2017: Q: When does a public prosecutor conduct an inquest instead of a preliminary
investigation? SUGGESTED ANSWER: Under the Rules of Criminal Procedure, the public
prosecutor conducts an inquest instead of a preliminary investigation when a person is lawfully
arrested without a warrant involving an offense which requires a preliminary investigation. [S6
R112] (Jurist Review Center, Inc.)
161
[] Art 125 RPC. Delay in the delivery of detained persons to the proper judicial
authorities. — The penalties provided in the next preceding article shall be imposed upon the
public officer or employee who shall detain any person for some legal ground and shall fail to
deliver such person to the proper judicial authorities within the period of:
a. twelve (12) hours, for crimes or offenses punishable by light penalties, or their
equivalent;
b. eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or
their equivalent and
c. thirty-six (36) hours, for crimes, or offenses punishable by afflictive or capital
penalties, or their equivalent.
In every case, the person detained shall be informed of the cause of his detention and shall
be allowed upon his request, to communicate and confer at any time with his attorney or
counsel. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively).
terminated within 15 days from its inception.

b. If the accused was not aware of the complaint/info filed in court
without PI, he may still ask for a PI within 5 days from the time he learns
of the filing, with the same right to adduce evidence [Sec 6, R112].
3. There can never be a second Inquest investigation for another crime, which
is not the reason for the initial arrest.162
More on matters related to Inquies proceedings and related procedures

1. DUTIES OF AN INQUEST OFFICER: The initial duty of the inquest
officer is to determine if the arrest of the detained person was valid;
should the Inquest Officer find that the arrest was not made in accordance
with the Rules, he shall:
a. Recommend the release of the person arrested or detained;
b. Note down the disposition on the referral document;
c. Prepare a brief memorandum indicating the reasons for the action taken;
and
d. Forward the same, together with the record of the case, to the City
or Provincial Prosecutor for appropriate action (Sec. 9, DOJ Circular No.
61).
****Where the recommendation is approved by the City or
Provincial Prosecutor but the evidence on hand warrant the conduct of a regular
preliminary investigation, the order of release shall be served on the officer
having custody of said detainee and shall direct the said officer to serve
162
[] Q: Leo was arrested without a warrant following the issuance by PGMA of PD 1017. On
the eve of his arrest, Leo was subjected to an inquest at the Quezon City Hall of Justice for
Inciting to Sedition (Art. 142, RPC) based on a speech he allegedly gave during a rally. The
inquest was based on a joint affidavit of Leo’s arresting officers who claimed to have been
present at the rally. The inquest prosecutor filed the corresponding Information with the
MeTC. Several days after the first inquest, he was again subjected to a second inquest but this
time for rebellion allegedly committed based on the letters of CIDG investigators claiming that
Leo was the leader/ promoter of an alleged plot to overthrow the Arroyo government. The panel
of prosecutors from the DOJ which conducted the second inquest subsequently issued a
resolution finding probable cause to indict Leo as leader/ promoter of alleged rebellion.
The panel filed an Information with the RTC of Makati. The court sustained the finding of
probable cause against Leo. Leo filed a Petition to set aside the orders finding probable cause and the denial
of the MR to enjoin his prosecution. ****Was the second inquest valid?
NO. Inquest proceedings are proper only when the accused has been lawfully arrested
without warrant. Sec. 5, Rule 113 of the Revised Rules of Criminal Procedure provides the
instances when such warrantless arrest may be effected. The joint affidavit of Leo’s arresting
officers states that the officers arrested Leo, without a warrant, for Inciting to Sedition, and
not for Rebellion. Thus, the inquest prosecutor could only have conducted – as he did
conduct – an inquest for Inciting to Sedition and no other. Consequently, when another
group of prosecutors subjected Leo to a second inquest proceeding for Rebellion, they
OVERSTEPPED their authority rendering the second inquest VOID (Crispin Beltran v.
People and Secretary Gonzales, G.R. No. 175013, June 1, 2007).
upon the detainee the subpoena or notice of preliminary investigation,

together with the copies of the charge sheet or complaint, affidavit or sworn statements of the
complainant and his witnesses and other supporting evidence.
2. PERSON TO CONDUCT preliminary investigation: The preliminary
investigation may be conducted by the Inquest Officer himself or by any
other Assistant Prosecutor to whom the case may be assigned by the City or
Provincial Prosecutor, ****which investigation shall be terminated within 15
days from its inception (Sec. 10, Part II, Manual for Prosecutors).
a. If the Inquest Officer finds that probable cause exists, he shall
forthwith prepare the corresponding complaint/information with the
recommendation that the same be filed in court (Sec. 13 Part II Manual for
Prosecutors).
a. If the Inquest Officer finds no probable cause, he shall recommend
the release of the arrested or detained person (Sec. 15 Part II Manual for
Prosecutors).
3. Inquest Proceeding
a. Matters included in a referral document
i. Affidavit of arrest;
ii. Investigation report;
iii. The statement of the complainant and witnesses; and
iv. Other supporting evidence gathered by the police in the course
of the latter's investigation of the criminal incident involving the arrested or
detained person.
*NB: The Inquest Officer shall, as far as practicable, cause the
affidavit of arrest and statements/affidavits of the complainant and the
witnesses to be subscribed and sworn to before him by the arresting officer and
the affiants (Sec. 3, Part II, Manual for Prosecutors).
b. Instances when production of a detained person before the
inquest officer is dispensed with
i. If he is confined in a hospital;
ii. If he is detained in a place under maximum security;
iii. If production of the detained person will involve security risks;
or
iv. If the presence of the detained person is not feasible by reason
of age, health, sex and other similar factors (Sec. 6, Part II, Manual for Prosecutors).
5. Detailed Procedure in Inquest Proceedings
a. Inquest officer (IO) receives complaint/referral of documents from
law enforcement officer (LEO)
b. IO shall first determine if the arrest is valid:
i. If not valid, IO shall proceed with the Inquest but shall
recommend the release to be approved by the city/provincial prosecutor.
When the recommendation for release is approved but the evidence warrants
the conduct of PI, the said order shall be served on the detaining officer and
shall direct him to serve upon the detainee the subpoena or notice of PI.
ii. If valid, detainee shall be asked if he wants a new PI; if yes, he
shall be asked to sign a waiver of the provisions of Art 125 RPC:
a) Inquest proper shall be conducted
b) If there is probable cause (PC), IO prepares a
complaint/information with a recommendation to be filed in court; if there is
no PC, recommend the release of the detainee.
——————————————————————————————
5.5. Arrest [Rule 113]
5.5.1. Arrest, how made 135

5.5.2. Arrest without warrant, when lawful 135
5.5.3. Method of arrest 136
5.5.3. a) Arrest by officer with warrant 136
5.5.3. b) Arrest by officer without warrant 138
5.5.3. c) Arrest by private person 138
5.5.4. Requisites of a valid warrant of arrest 144
5.5.5. Determination of probable cause for issuance of warrant of arrest 144
5.5.6. Distinguish probable cause of fiscal from that of a judge 145
——————————————————————————————
GENERAL CONSIDERATIONS ON ARREST

1. 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. 1, Rule 113).
2. Persons who are NOT subject to arrest
a. A senator or member of the House of Representatives shall, in all
offenses punishable by not more than 6 years of imprisonment, be
PRIVILEGED from arrest while Congress is in session (Sec. 11, Art. VI,
1987 Constitution); The privilege of a senator or congressman will not apply
when the offense is:
i. Punishable by imprisonment of more than 6 years even if
Congress is in session (People v. Jalosjos, G.R. No. 132875-76, February 3,
2000); or
ii. If the offense is punishable by imprisonment of not more than
6 years, the privilege does not apply if Congress is not in session.
b. Under the generally accepted principles of international law,
sovereign and other chiefs of state, ambassadors, ministers plenipotentiary,
ministers resident, and charges d’affaires are immune from the criminal
jurisdiction of the country of their assignment and are therefore immune from
arrest;
c. The arrest of duly accredited ambassadors, public ministers of a
foreign country, their duly registered domestics, subject to the PRINCIPLE
OF RECIPROCITY (Secs. 4 and 7, RA 75).
5.5.1. Arrest, how made

1. It is made
a. by an actual restraint of a person to be arrested, or

b. by his submission to the custody of the person making the arrest
(Sec. 2 Rule 113).163
*NB: Arrest may be made on any day, at any time of the day or night
(Sec.6, Rule 113), as compared to a search which is typically during the day only
unless otherwise specified in the search warrant (TOM).
*see more under Method of Arrest, infra.
2. The head of the office to whom the warrant was delivered must cause it to
be ****executed within 10 days from its receipt, and the officer to whom it is
assigned must make a report to the judge who issued the warrant within 10
days from the expiration of the period. If he fails to execute it, he should state
the reasons therefore (Sec. 4, Rule 113).
5.5.2. Arrest without warrant, when lawful

*cf. Arrest by an officer without warrant, infra.
5.5.3. Method of arrest

Method of arrest Exception to the rule on giving information
Arrest by officer by virtue of a warrant

(Sec. 7, Rule 113)
The officer shall inform the person to be arrested the 1. When the person to be arrested flees; 2.
cause of the arrest and the fact that the warrant has When he forcibly resists before the officer has
been issued for his arrest. ****The officer need not an opportunity to inform him; and 3. When the
have the warrant in his possession at the giving of such information will imperil the
time of the arrest but must show the same after arrest.
the arrest, if the person arrested so requires.
Method of arrest Exception to the rule on giving information
Arrest by officer without a warrant

(Sec. 8, Rule 113)
The officer shall inform the person to be 1. When the person to be arrested is engaged in
arrested of his authority and the cause of the commission of an offense or is pursued
the arrest without a warrant. immediately after its commission; 2. When he
has escaped, flees, or forcibly resists before the
officer has an opportunity to so inform him; and 3.
When the giving of such information will
imperil the arrest.
163
[] Bar 2008: Jose, Alberto and Romeo were charged with murder. Upon filing of the information, the
RTC judge issued the warrants of arrest. Learning of the issuance of the warrants, the 3 accused
jointly filed a motion for reinvestigation and for the recall of the warrants of arrest. On the date
set for hearing of their motion, none of the accused showed up in the court for fear of being
arrested. The RTC judge denied their motion. Did the RTC rule correctly?
YES, because the accused have not surrendered their persons to the court.
****Jurisdiction over the person of the accused can only be obtained through arrest or
voluntary surrender (Dimatulac v. Villon, G.R. No. 127107, October 12, 1998).
Arrest by a private person (Sec. 9, Rule 113)
The private person shall inform the person to 1. When the person to be arrested is engaged in
be arrested of the intention to arrest him and the commission of an offense or is pursued
the cause of the arrest. ****The private immediately after its commission; 2. When he
person must deliver the arrested person to has escaped, flees, or forcibly resists before
the nearest police station or jail, otherwise, he the officer has an opportunity to so inform him;
may be held criminally liable for illegal detention. and 3. When the giving of such information will
imperil the arrest.
5.5.3. a) Arrest by officer with warrant

1. Amount of force to be used in making an arrest
*GR: 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. 2, Rule 113).
*XPN: If NECESSARY to secure and detain the offender, overcome
his resistance, prevent his escape, recapture him and protect himself from
bodily harm (Albano, Remedial Law Reviewer, 2010, hereinafter referred to as
Albano, 2010; People v. Delima, G.R. No. 18660, December 22, 1922).
[] An officer may break into a building or enclosure to effect an arrest
provided that:
a. The person to be arrested is or reasonably believed to be in the said
building;
b. The officer has announced his authority and purpose for entering
therein;
c. He has requested and been denied admittance (Sec. 11, Rule 113).
2. Where made? A lawful arrest may be made ANYWHERE, even on a private
property or in a house. This rule is applicable both where the arrest is under a
warrant, and where there is a valid warrantless arrest.
3. Objects subject to CONFISCATION from the person arrested
a. Objects subject of the offense or used or intended to be used in the
commission of the crime;
b. Objects which are fruits of the crime;
c. Those which might be used by the arrested person to commit violence
or to escape; and
d. Dangerous weapons and those which may be used as evidence in the
case.
****Arrest must precede the search, the process cannot be reversed.
Nevertheless, a search substantially contemporaneous with an arrest can
precede the arrest at the outset of the search. Reliable information alone is
not sufficient to justify a warrantless arrest under Sec. 5, Rule 113.
5.5.3. b) Arrest by officer without warrant164

1. Instances when warrant of arrest is NOT necessary
164Q: AX swindled RY in the amount of P10,000 sometime in mid-2003. On the strength of the sworn
statement given by RY personally to SPOl Juan Ramos sometime in mid- 2004, and without securing a
warrant, the police officer arrested AX. Forthwith the police officer filed with the City Prosecutor of Manila a
complaint for estafa supported by RTs sworn statement and other documentary evidence. After due
inquest, the prosecutor filed the requisite information with the MM Regional Trial Court. No preliminary
investigation was conducted either before or after the filing of the information and the accused at no time
asked for such an investigation. However, before arraignment:, the accused moved to quash the information
a. Accused is already under detention;

b. Complaint or information was filed pursuant to a valid warrantless arrest; and
c. Complaint or information is for an offense penalized by fine only (Sec.
5 (c), Rule 112).
2. GR: No peace officer or person has the power or authority to arrest anyone
without a warrant except in those cases expressly authorized by law (Umil vs.
Ramos, G.R. No. 81567, October 3, 1991).
****XPNS: Instances of a valid warrantless arrest
a. When in the presence of the arresting person, the person to be arrested has
COMMITTED, is ACTUALLY committing or is ATTEMPTING to commit an
offense (IN FLAGRANTE DELICTO arrest);
[] Buy-bust Operation - A form of entrapment which has been
repeatedly accepted to be a valid means of arresting violators of the Dangerous Drugs Law.
The violator is caught in flagrante delicto and the police officers conducting the
operation are not only authorized but duty-bound to apprehend the violator
and to search him for anything that may have been part of or used in the
commission of the crime (People v. Juatan, G.R. No. 104378, August 20, 1996).
b.165 When an offense has in fact been committed and the arresting
on the ground that the prosecutor suffered from a want of authority to file the information because of his
failure to conduct a preliminary investigation before filing the information, as required by the Rules of
Court. Is the warrantless arrest of AX valid? Is he entitled to a preliminary investigation before the filing of the
information? Explain. (5%) (2004 Bar Question) SUGGESTEDANSWER:
No. The warrantless arrest is not valid because the alleged offense has not just been committed.
The crime was allegedly committed one year before the arrest. (Sec. 5 (b) of Rule 113). Yes, he is entitled to a
preliminary investigation because he was not lawfully arrested without a warrant. (See Sec. 7 of Rule
112). He can move for a reinvestigation.
165 Q: X, common-law wife of accused Y. sobbing, went running from her residence, just some thirty meters
away, to the house of Barangay Captain Z, complaining that accused Y struck her on the cheek with the butt of
a revolver, causing her to bleed, and that accused Y threatened to shoot her with a gun. The Barangay Captain, a
retired veteran police officer, accompanied X to the latter’s residence to investigate, but on their way they met
accused Y on the road. Thereupon, Barangay Captain Z confronted accused Y about the complaint of his
common- law wife X, but Y did not say anything nor deny it. The Barangay Captain, noticing an object bulging
in Ys waistline underneath his T- shirt, and believing that it was the gun he used to injure X and to threaten her
with death, frisked Y and grabbed the object which turned out to be a .38 caliber paltik revolver. The Barangay
Captain inquired whether accused had a license to possess or permit to carry the gun, and when the latter
answered in the negative, the Barangay Captain arrested him and confiscated the firearm. From the record of the
local PNP, It was ascertained that the subject revolver was not registered licensed in the name of accused Y.
Was the arrest of accused Y without warrant lawful pursuant to Section 5(a) of Rule 113 of the Revised Rules on
Criminal Procedure? Were the search conducted and seizure of the gun likewise lawful without a search warrant
pursuant to Section 12 of Rule 126? Explain. (1996 Bar Question) Answer:
The arrest of the accused Y without warrant was lawful pursuant to Section 5(b) not (a) of Rule 113,
because an offense had in fact just been committed and Barangay Captain Z has personal knowledge of
facts indicating that Y had committed it. When Z, accompanied by the complainant X, met Y on the road and
confronted him on the complaint of X. Y did not say anything nor deny it. That was sufficient ground for
Z to arrest Y and search him. Hence the search and seizure of the gun was lawful without a search warrant
under Sec. 12 of Rule 126. The arrest of the accused Y without warrant was lawful under Section 5 (a) of Rule
113, because the totality of the circumstances would indicate to a veteran police officer that a crime was
being committed in his presence, and justify an arrest of Y without warrant. Hence the search and seizure
of the gun was lawful under Sec. 12 of Rule 126.
person has probable cause to believe based on PERSONAL KNOWLEDGE of

FACTS AND CIRCUMSTANCES (not the offense!) that the person to be
arrested has committed it (HOT PURSUIT arrest)166; NB: There must be
compliance with the element of IMMEDIACY between the time of the
commission of the crime and the time of arrest (People v Salvatiera, G.R. No.
104663, July 24, 1997). Elements of Hot Pursuit Arrest:
i. An offense has been committed in close proximity between the
arrest and the time of commission of the crime (Pamaran, 2007);
ii. The offense has just been committed; and
iii. Probable cause based on personal knowledge on the part of the
person making the arrest, of facts or circumstances that the person/s to be
arrested committed it (Herrera, 2007).
[] *****SC: time limit: within one day; if after one day, there is no
more hot pursuit.
[] Personal knowledge: It means actual belief or reasonable
grounds of suspicion that the person to be arrested is probably guilty of the
offense based on actual facts. Personal knowledge has no reference to the actual
commission of the crime but to personal knowledge of facts leading to
probable cause. Personal gathering of information is different from personal
knowledge. The rule requires that the arrest immediately follows the
commission of the offense (People v Manlulu, G.R. No. 102140, April 22, 1994).
[] Q: The officers went to the scene of the crime where they found a
piece of wood and a concrete hollow block used by the killers in bludgeoning the victim to
death. A neighbor of the accused who witnessed the killing, pointed to Roberto
as one of the assailants. Roberto was arrested three hours after the killing. Is the
166
BAR 2016: Q: Under Section 5, Rule 113 a warrantless arrest is allowed when an offense has just
been committed and the peace officer has probable cause to believe, based on his personal knowledge
of facts or circumstances, that the person to be arrested has committed it. A policeman approaches you
for advice and asks you how he will execute a warrantless arrest against a murderer who escaped after
killing a person. The policeman arrived two (2) hours after the killing and a certain Max was allegedly
the killer per information given by a witness. He asks you to clarify the following: [a] How long after
the commission of the crime can he still execute the warrantless arrest?; [b] What does
"personal knowledge of the facts and circumstances that the person to be arrested committed
it" mean?
SUGGESTED ANSWER: (a) The arrest must be made within 24 hours after the commission of
the crime. Where the arrest took place a day after the commission of the crime, it cannot be said that
an offense has just been committed. (People v. Del Rosario, 305 SCRA 740).
(b) "Personal knowledge of the facts and circumstances that the person to be arrested committed it"
means personal knowledge not of the commission of the crime itself but of facts and circumstances
which would lead to the conclusion that the person to be arrested has probably committed the
crime. Such personal knowledge arises from reasonably worthy information in the arresting person’s
possession coupled with his own observation and fair inferences therefrom that the person arrested
has probably committed the offense. (Pestilos v. Generoso, 739 SCRA 337). (Jurist Review Center, Inc.)
arrest a valid warrantless arrest? YES. Under the abovementioned circumstances,

since the policemen had personal knowledge of the violent death of the victim
and of facts indicating that Roberto and two others had killed him, they could
lawfully arrest Roberto without a warrant. If they had postponed his arrest until they could
obtain a warrant, he would have fled the law as his two companions did (People v.
Gerente, G.R. No. 95847-48, March 10, 1993).
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
temporarily confined while his case is pending or has escaped while being
transferred from one confinement to another (EVASION OF SERVICE of
sentence by prisoner) [a to c are under Sec 5, Rule 113]
d. Where a person who has been lawfully arrested escapes or is rescued
(Sec. 13, Rule 113).
e. By the bondsman167 for the purpose of surrendering the accused (Sec.
23, Rule 114).
f. Where the accused out on bail attempts to leave the country without
permission of the court (Sec. 23, Rule 114).
3. Where to deliver the suspect—[] Bar 2007: On his way home, a member of the
Caloocan City police force witnessed a bus robbery in Pasay City and effects the
arrest of the suspect. Can he bring the suspect to Caloocan City for booking since
that is where he is stationed? NO. *****It shall be the duty of the officer
executing the warrant to arrest the accused and to deliver him to the NEAREST
police station or jail without unnecessary delay (Sec. 3, Rule 113). This rule
equally applies to situations of warrantless arrests. Here, the arrest was made
in Pasay City. Hence, the suspect should be brought to the police station in Pasay
City for booking and not in Caloocan City.
4. Obligation of the arresting officer after the warrantless arrest: The arresting
officer must comply with the provisions of Art. 125 of the RPC, otherwise, he
may be held criminally liable for ARBITRARY DETENTION under Art. 124,
RPC. Jurisdiction over the person arrested must be transferred to the judicial
authorities. Art. 125 is a procedural requirement in case of warrantless
arrest. A case must be filed in court.
[] Period for officers to deliver the person detained under Art. 125 of the
RPC—The person must be delivered to the judicial authorities within the period
specified in Art. 125 (Delay in the delivery of detained persons to the proper
judicial authorities):
a. 12 hours - Light penalties
b. 18 hours - Correctional penalties
167When may the bail of the accused be cancelled at the instance of the bondsman? (2011 BAR)
(A) When the accused jumps bail.
(B) When the bondsman surrenders the accused to the court.
(C) When the accused fails to pay his annual premium on the bail bond.
(D) When the accused changes his address without notice to the bondsman.
c. 36 hours - Afflictive or capital penalties

****The accused should be brought to the prosecutor for inquest
proceedings wherein existence of probable cause will be determined. Then
the judge shall issue a COMMITMENT ORDER (order issued by the judge
when the person charged with a crime is already arrested or detained) and not a
warrant.
[] Scenario: when there is no Inquest prosecutor present, a case may be
filed directly in court on the basis of the affidavit of the law enforcement officer
and offended party, so as to comply with Art. 125. But if the accused requests for
a PI, he will be allowed given one condition, i.e., he shall sign a waiver of Art. 125
RPC, and he should do the same under the supervision of a competent counsel
[RA 7438]—if it’s only signed by the accused, it is not valid. Now, if the Info is
already filed, he can still ask for PI within 5 days from knowledge of the same.
Can he ask for bail? YES, because he is under custody. Where? From the court of
the place where he is held.
5. RATIFICATION of an illegal arrest: ******Illegality of warrantless arrest
may be cured by filing of information in court and the subsequent issuance by
the judge of a warrant of arrest. ****Once a person has been duly charged in court,
he may no longer question his detention by petition for habeas corpus. His
remedy is to quash the information and/or the warrant of arrest. NB: After
arraignment, any objection to the illegality of the arrest is deemed waived.168
6. Consequences of Illegal Arrests
a. The documents, things or articles seized following the illegal arrest are
INADMISSIBLE in evidence;169
168
[] Bar 2000: Fred was arrested without a warrant. After preliminary investigation, an
information was filed in court. He pleaded not guilty during arraignment. After trial on the merits,
he was found guilty by the court. On appeal he claims that judgment was void due to his illegal
arrest. As Solicitor General, how would you refute said claim?
****Any objection to the illegality of the arrest of the accused without a warrant is
DEEMED WAIVED when he pleaded not guilty at the arraignment without raising the question. It is
too late to complain about a warrantless arrest after trial is commenced and completed and a judgment of
conviction rendered against the accused (People v. Cabiles, G.R. No. 112035, January 16, 1998). *****An
accused who enters his plea of not guilty and participates in the trial WAIVES the illegality of the
arrest. Objection to the illegality must be raised before arraignment, otherwise it is deemed waived, as
the accused, in this case, has voluntarily submitted himself to the jurisdiction of the court (People v.
Macam, G.R. Nos. L-91011-12, November 24, 1994).
169
[] Bar 1997: Albert was killed by Bobot during a quarrel over a guest relations officer in a nightclub.
Two days after the incident, and upon complaint of the widow of Albert, the police arrested Bobot
without a warrant of arrest and searched his house without a search warrant.
a. Can the gun used by Bobot in shooting Albert, which was seized during the search of the
house of Bobot, be admitted in evidence? NO. ****The gun seized during the search of the house of
Bobot without a search warrant is not admissible in evidence (Secs. 2 and 3(2), Art. III, 1987
Constitution). Moreover, the search was not an incident to a lawful arrest of a person under Sec.
12, Rule 126.
b. Is the arrest of Bobot legal? NO. ****A warrantless arrest requires that the crime has in
b. The arresting person may be held criminally liable for illegal arrest
under Art. 269, RPC;
c. Arresting officer may be held civilly liable for the damages under Art.
32, NCC; and
d. He may also be held administratively liable.
7. May authorities resort to warrantless arrest in cases of rebellion? YES. Since

rebellion has been held to be a CONTINUING CRIME, authorities may resort
to warrantless arrests of persons suspected of rebellion, as provided under Sec.
5, Rule 113. However, this doctrine should be applied to its proper context – i.e.,
relating to SUBVERSIVE armed organizations, such as the New People’s
Army, the AVOWED PURPOSE of which is the armed OVERTHROW of
the organized and established government. Only in such instance should rebellion
be considered a continuing crime (People v. Suzuki, G.R. No. 120670, October 23,
2003).
8. When does one object to an illegal arrest?**** before one enters his plea, i.e.,
before arraignment and plea. NB: but you can be re-arrested with warrant of arrest
anyway…
a. What if you are granted bail? Yes, you can still question the illegal arrest;
b. Even if the PI is irregular? Yes, you can still question the illegal arrest;
*For (a) & (b), they have to be raised before he enters his plea [Sec 26 Rule 114]
[] What if he already entered his plea? ****The illegal arrest is waived, but
the same is NOT a waiver of his right to question the inadmissibility of the
evidences gathered—they are fruits of the illegal arrest. What is only waived is the
arrest. (Bar 2017 Question)170
fact just been committed and the police arresting has personal knowledge of facts that the person
to be arrested has committed it (Sec. 5, Rule 113). Here, the crime has not just been committed since a
period of two days had already lapsed, and the police arresting has no such personal knowledge
because he was not present when the incident happened (Go v. CA, G.R. No. 106087, January 11,
1995).
c. Under the circumstances, can Bobot be convicted of homicide? Yes. The gun is not
indispensable in the conviction of because the court may rely on testimonial or other evidence.
170
BAR 2017: Q: Boy Maton, a neighborhood tough guy, was arrested by a police officer on suspicion
that he was keeping prohibited drugs in his clutch bag. When Boy Maton was searched immediately
after the arrest, the officer found and recovered 10 sachets of shabu neatly tucked in the inner linings of
the clutch bag. At the time of his arrest, Boy Maton was watching a basketball game being played in the
town plaza, and he was cheering for his favorite team. He was subsequently charged with illegal
possession of dangerous drugs, and he entered a plea of not guilty when he was arraigned. During the
trial, Boy Maton moved for the dismissal of the information on the ground that the facts revealed that
he had been illegally arrested. He further moved for the suppression of the evidence confiscated from
him as being the consequence of the illegal arrest, hence, the fruit of the poisonous tree. The trial court, in
denying the motions of Boy Maton, explained that at the time the motions were filed Boy
Maton had already waived the right to raise the issue of the legality of the arrest. The trial court
observed that, pursuant to the Rules of Court, Boy Maton, as the accused, should have assailed the
validity of the arrest before entering his plea to the information. Hence, the trial court opined
5.5.3. c) Arrest by private person

*Instances when a private person may make an arrest: the first three types of valid
warrantless arrests [Sec 5, Rule 113, supra]
5.5.4. Requisites of a valid warrant of arrest

1. Warrant of arrest (woa): It is a legal process issued by a competent authority,
directing the arrest of a person or persons upon the grounds stated therein
(Herrera, 2007).
2. Person who may issue a warrant of arrest: The 1987 Constitution speaks of
“judges” which means judges of all levels. This power may not be limited
much less withdrawn by Congress. The power to determine the existence of
probable cause to issue a warrant of arrest is a FUNCTION OF THE JUDGE
and such power lies in the judge alone (People v. Inting, G.R. No. 85866, July
24, 1990).
****XPN: The exception is in case of DEPORTATION of illegal and
undesirable aliens, whom the President or the Commissioner of Immigration
may order arrested following a final order of deportation for the purpose of
DEPORTATION (Salazar v. Achacoso, G.R. No. 81510, March 14, 1990).
3. ****ESSENTIAL REQUISITES of a valid warrant of arrest
a. Issued upon probable cause;
b. Probable cause is to be determined personally by the judge after
examination under oath of the complainant and the witnesses he may produce;
c. The judge must personally evaluate the report of the prosecutor and the
evidence adduced during the preliminary examination (Soliven v. Makasiar G.R. No.
L-82585, November 14, 1988); ****A warrant of arrest issued based only on the
prosecutor’s findings and recommendation like the information and resolution
that any adverse consequence of the alleged illegal arrest had also been equally waived.
Comment on the ruling of the trial court.
SUGGESTED ANSWER: The ruling of the court denying the motion for dismissal of the
information on the ground of illegal arrest is proper. Under the Rules of Criminal Procedure, the
accused’s failure to file a motion to quash before plea is a waiver of the objection to lack of personal
jurisdiction or of the objection to an illegal arrest. [S9 R117] Here Boy Maton entered a plea without
filing a motion to quash on the ground of lack of personal jurisdiction. Hence he is deemed to have
waived the ground of illegal arrest which is subsumed under lack of personal jurisdiction.
HOWEVER, the ruling denying the motion to suppress evidence is not correct. The Supreme Court
has held that a waiver of an illegal, warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest. [People v. Racho, 3 Aug
2010]. A waiver of an illegal arrest is not a waiver of an illegal search. [Villanueva v. People, 17
Nov 2014, Sereno, C.J.] The Constitution provides that evidence seized in violation of the right
against illegal search is inadmissible in evidence. Hence the evidence seized was by virtue of an
illegal search since the arrest was illegal. Hence such evidence may be suppressed. (Jurist Review Center,
Inc.)
finding a probable cause, without the court determining on its own the issue of
probable cause based on evidence is NULL AND VOID (Ho v. People, G.R.
No. 106632, October 9, 1997; Pamaran, 2007).
d. The warrant must particularly describe the person to be arrested; and
e. It must be in connection with specific offense or crime.
4. Period of the VALIDITY of a warrant of arrest: ****No time limit is fixed
for the validity of a warrant of arrest, unlike a search warrant, which is effective only
for 10 days (Pamaran, 2007). It remains valid until arrest is effected or the
warrant is lifted (Manangan v. CFI, G.R. No. 82760, August 30, 1990).
5. Remedy for warrant of arrest: ****Where a warrant of arrest was improperly
issued, the proper remedy is a PETITION TO QUASH it, not a petition for
habeas corpus, since the court in the latter case may only order his release but not enjoin the
further prosecution or the preliminary examination of the accused (Alimpoos v. CA, G.R.
No. L-27331, July 30, 1981).
5.5.5. Determination of probable cause for issuance of warrant of arrest

1. Within ten (10) days from the filing of the complaint or information, the
judge shall personally evaluate
a. the resolution of the prosecutor and
b. its supporting evidence.
2. Actions of the judge:
a. He may immediately dismiss the case if the evidence on record clearly
fails to establish probable cause.
b. 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.
c. 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.
3. NB: PROBABLE CAUSE: It refers to facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense
has been committed by the persons involved. It need not be based on clear
and convincing evidence of guilt. Neither is it based on evidence establishing
guilt beyond reasonable doubt or on evidence establishing absolute certainty of
guilt. It simply implies probability of guilt and requires more than bare
suspicion but less than evidence which would justify a conviction. A finding
of probable cause need only rest on evidence showing that more likely than
not a crime has been committed and was committed by the suspects (The
Presidential Ad-Hoc Fact-Finding Committee on Behest Loans v. Desierto, G.R.
No. 136225, April 23, 2008
5.5.6. Distinguish probable cause of fiscal from that of a judge

*******
Probable Cause as determined by the Prosecutor Probable Cause as determined by the Judge
Purpose For the filing of an information in court For the issuance of warrant to determine
by determining whether there is whether there is a necessity for placing the
reasonable ground to believe that the accused under immediate custody in order
accused is guilty of the offense charged not to frustrate the ends of justice (Cruz v. Areola
and should be held for trial. 6, 2002).
Function Executive function Judicial function
Basis Reasonable ground to believe that a The report and the supporting documents
crime has been committed. submitted by the fiscal during the preliminary
investigation and the supporting affidavits that
may be required to be submitted.
——————————————————————————————
5.6. Bail [Rule 114]
5.6.1. Nature 147

Forms of bail 149
Where filed 151
Other instances when bail may be availed of 153
Law on Juveniles in conflict with the law 154
Court martial offenses: no bail 154
Filing of bail after a final judgment 155
5.6.2. When a matter of right; exceptions 155
5.6.3. When a matter of discretion 155
5.6.4. Hearing of application for bail in capital offenses 155
5.6.5. Guidelines in fixing amount of bail 161
5.6.6. Bail when not required 163
5.6.7. Increase or reduction of bail 164
5.6.8. Forfeiture and cancellation of bail 165
5.6.9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary
investigation 166
5.6.10. Hold departure order & Bureau of Immigration watchlist 167
Bail in Extradition Cases**** 169
———————————————————————————————
BACKGROUNDER ON BAIL
1. It is the SECURITY given for the release of a person in CUSTODY of the
law,171 furnished by him or a bondsman, to guarantee his appearance before
any court as required under the conditions prescribed under the rules (Sec. 1, Rule
114).
****If the person is not yet under the custody of the law—for bail, it
means PHYSICAL custody, not being under the jurisdiction of the court—
171Q: A was charged with a non-bailable offense. At the time when the warrant of arrest was issued, he was
confined in the hospital and could not obtain a valid clearance to leave the hospital. He filed a petition for bail
saying therein that he be considered as having placed himself under the jurisdiction of the court. May
the court entertain his petition? Why or why not? (2012 BAR)
A: YES, a person is deemed to be under the custody of the law either when he has been arrested or has
surrendered himself to the jurisdiction of the court. The accused who is confined in a hospital may be
deemed to be in the custody of the law if he clearly communicates his submission to the court while he is
confined in a hospital (Paderanga v. Court of Appeals, G.R. No. 115407, August 28, 1995).
he should not be given bail.172 Why? He is already physical free. Why not JN?
Because the filing of an application for bail already means submission to the JN of
the court, although the accused is not yet in custody. Hence, a fugitive cannot
apply for bail.
****Note that bail is a civilian concept. It is not applicable to military
tribunals—there is no bail for a solider under the Articles of War.
2. Basis of the right to bail: The right to bail is a CONSTITUTIONAL RIGHT
which flows from the presumption of innocence in favor of every accused who
should not be subjected to the loss of freedom. Thus, the right to bail only
accrues when a person is arrested or deprived of his liberty. ****The right to
bail presupposes that the accused is under legal custody (Paderanga v. Court
of Appeals, G.R. No. 115407, August 28, 1995).
[] Q: Andrew was charged with the crime of estafa in the RTC of Manila. A
warrant of arrest was issued by Judge Matias. Before the warrant of arrest could
be served, Judge Matias issued a recall order of the warrant of arrest issued
against Andrew in view of the approval of his bail bond by the Executive Judge
of the RTC of Manila. Was the application for bail of Andrew validly approved?
NO. ****The right to bail can only be availed of by a person who is in
custody of the law or otherwise deprived of his liberty and it would be
PREMATURE to file a petition for bail for someone whose freedom has yet
to be curtailed. Here, the bail application of Andrew was approved before the
warrant for his arrest could be served (Alva v. CA, G.R. No. 157331, April 12,
2006).
3. CONDITIONS ATTACHED to the grant of bail—All kinds of bail are
subject to the following conditions [Sec 2, Rule 114]
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 or 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 execution.
****When the court finds that there is likelihood of the accused jumping
172 X was charged for murder and was issued a warrant of arrest. X remains at large but wants to post bail. X's
option is to: (2012 BAR)
a. fileamotiontorecallwarrantofarrest;
b. surrender and file a bail petition;
c. file a motion for reinvestigation;
d. fileapetitionforreviewwiththeOOJ.
bail or committing other harm to the citizenry is feared, the court may grant
other conditions in granting bail (Almeda v. Villaluz, G.R. No. L-31665, August
6, 1975).
*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 6 months showing the face, left
and right profiles of the accused must be attached to the bail (Sec. 2, Rule 114).
4. Liability of the surety or bondsmen: It is inherently CIVIL in nature. The
liability of the bondsmen on the bail bond arises not from the violation of, or an
obligation to comply with, a penal provision of law. It emerges instead from a
CONTRACT, the bond subscribed jointly by the accused and the surety or
bondsmen. ****The obligation of the accused on the bond is different from
the surety in that the former can be made to suffer a criminal penalty for
failure to comply with the obligations on the bail bond. However, the surety is
not under a similar path of punishment, as its liability on the bail bond would
merely be civil in character (Reliance Surety and Insurance Co. v. Amante Jr., et.
al., G.R. No. 150994, June 30, 2005).
****The court may not impose additional obligations upon the
bondsmen other than those provided by law. The obligation imposed upon the
bondsmen cannot be greater nor of a different character than those imposed
upon the accused (Bandoy v. Judge of CFI of La Laguna, G.R. No. L-5200,
March, 11, 1909).
5. Effect of filing FORGED bail bonds: ****By filing forged bail bonds,
appellants are considered not merely to have jumped bail, but for all intents
and purposes to have escaped from detention. Hence, their pending appeal
should be dismissed, subject to the filing of the proper criminal cases against
the parties responsible therefor (People of the Philippines v. Del Rosario, G.R.
Nos. 107297-98, December 19, 2000).
5.6.1. Nature
1. Nature of bail proceedings: The hearing of an application for bail should be
SUMMARY or otherwise in the discretion of the court. **By 'summary hearing'
means such brief and speedy method of receiving and considering the evidence
of guilt as is practicable and consistent with the purpose of the hearing which is
merely to determine the weight of the evidence for the purpose of bail
(Ocampo v. Bernabe, G.R. No. L-439, August 20, 1946).
2. PURPOSES of bail
a. To relieve an accused from the rigors of imprisonment until his
conviction and yet secure his appearance at the trial (Almeda v. Villaluz G.R.
No. L-31665, August 6, 1975);
b. To honor the presumption of innocence until his guilt is proven
beyond reasonable doubt;
c. To enable him to prepare his defense without being subjected to
punishment prior to conviction.

******The main purpose of bail is to guarantee the appearance of the
accused in court when needed. This is the underlying philosophy behind the
Court’s ruling on the application for bail of Senator Enrile as penned by J.
Bersamin.173 He explained that he can be granted bail since the said purpose will
definitely be accomplished, given his track record: i. he never attempted to
escape in the past in spite of the cases filed against him; ii. he is too old to escape;
iii. he is very sick. The last two reasons are the famous “humanitarian reasons”
used to justify the grant of bail. This part of our national commitment to uphold
the fundamental human rights [under the Universal Declaration on Human
Rights], upon a clear and convincing showing: (1) that the detainee will not be a
flight risk or a danger to the community; and (2) that there exist special,
humanitarian and compelling circumstances. Enrile’s social and political
standing and his having immediately surrendered to the authorities upon his
being charged in court indicate that the risk of his flight or escape from this
jurisdiction is highly unlikely… [He] has demonstrated his utter respect for
the legal processes of this country… Indeed, denying him bail despite
imperiling his health and life would not serve the true objective of
preventive incarceration during the trial. [In fact, the grant of bail will] enable
him to have his medical condition be properly addressed and better
attended to by competent physicians in the hospitals of his choice. [Hence, his
173 RE: Enrile case [ENRILE v. SANDIGANBAYAN; G.R. No. 213847, 18 August 2015 J. Bersamin].
******The purpose of bail is to guarantee the appearance of the accused at the trial, or whenever so
required by the trial court. Thus, bail acts as a reconciling mechanism to accommodate both the
accused’s interest in his provisional liberty before or during the trial, and the society’s interest in
assuring the accused’s presence at trial. For purposes of admission to bail, the determination of
whether or not evidence of guilt is strong in criminal cases involving capital offenses, or offenses punishable with
reclusion perpetua or life imprisonment lies within the discretion of the trial court… such discretion may be
exercised only after the hearing called to ascertain the degree of guilt of the accused for the purpose
of whether or not he should be granted provisional liberty."
It is axiomatic, therefore, that bail cannot be allowed when its grant is a matter of discretion
on the part of the trial court unless there has been a hearing with notice to the Prosecution. In
resolving bail applications of the accused who is charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, the trial judge is expected to comply with
the guidelines outlined in Cortes v. Catral, to wit: 1. In all cases, whether bail is a matter of right or
of discretion, notify the prosecutor of the hearing of the application for bail or require him to
submit his recommendation (Section 18, Rule 114 of the Rules of Court, as amended); 2. Where
bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or
not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the
purpose of enabling the court to exercise its sound discretion; (Section 7 and 8, supra); 3. Decide
whether the guilt of the accused is strong based on the summary of evidence of the prosecution; 4. If
the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond
(Section 19, supra) Otherwise petition should be denied.
appearance during trial is better assured].174
FORMS OF BAIL
1. CORPORATE surety/Bail bond;
a. An obligation under seal given by the accused with one or more
sureties and made payable to the proper officer with the condition to be void
upon performance by the accused of such acts as he may be legally required to
perform;
b. The accused goes to an authorized bonding company and he will pay a
premium for the service which is a percentage of the total amount of bail. The
bonding company will then go to the court and execute an undertaking, or
"security bond" in the amount of the bail bond in behalf of the accused, that if
the accused is needed, the bonding company will bring him before the court;
c. If the accused jumps bail, the bond will be cancelled and the bonding
company will be given sufficient time to locate the whereabouts of the
accused who posted bail but later on jumps bail. ****Notice to bonding
company is notice to the accused. Notice is usually sent to the bonding
174It must be noted that Enrile has averred in his Motion to Fix Bail the presence of two mitigating
circumstances that should be appreciated in his favor, namely: that he was already over 70 years at
the time of the alleged commission of the offense, and that he voluntarily surrendered. However, the
determination of whether or not Enrile’s averment on the presence of the two mitigating
circumstances could entitle him to bail, being primarily factual in context, is ideally to be made by
the trial court. Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by
the earlier mentioned principal purpose of bail, which is to guarantee the appearance of the
accused at the trial, or whenever so required by the court. The Court is further mindful of the
Philippines’ responsibility in the international community arising from the national
commitment under the Universal Declaration of Human Rights. This national commitment to
uphold the fundamental human rights as well as value the worth and dignity of every person has
authorized the grant of bail not only to those charged in criminal proceedings but also to
extraditees upon a clear and convincing showing: (1) that the detainee will not be a flight risk or a
danger to the community; and (2) that there exist special, humanitarian and compelling
circumstances. Enrile’s social and political standing and his having immediately surrendered to
the authorities upon his being charged in court indicate that the risk of his flight or escape from
this jurisdiction is highly unlikely. His personal disposition from the onset of his indictment for
plunder, formal or otherwise, has demonstrated his utter respect for the legal processes of this
country. Bail for the provisional liberty of the accused, regardless of the crime charged, should be
allowed independently of the merits of the charge, provided his continued incarceration is
clearly shown to be injurious to his health or to endanger his life. Indeed, denying him bail
despite imperiling his health and life would not serve the true objective of preventive
incarceration during the trial. It is relevant to observe that granting provisional liberty to Enrile
will then enable him to have his medical condition be properly addressed and better attended
to by competent physicians in the hospitals of his choice. This will not only aid in his adequate
preparation of his defense but, more importantly, will guarantee his appearance in court for the
trial.
company in order to produce the body of the accused.

****Liability of surety175/bondsman covers all three stages: trial,
promulgation, and execution of sentence.
2. PROPERTY bond;
a. The title of the property will be used as security for the provisional liberty
of the accused which shall constitute a LIEN over the property;
b. The accused shall cause the ANNOTATION of the lien within 10
days after approval of the bond before the:
i. Registry of Deeds if the property is registered; or
ii. Registration Book in the Registry of Deeds of the place where the
land lies and before the provincial, city or municipal assessor on the
corresponding tax declaration if property is not registered (Sec. 11, Rule 114);
c. The person who undertakes the conditions of a regular bond will be the
CUSTODIAN of the accused during the time that he is under provisional
liberty.
****In all cases, the surety of properties must be worth the
amount specified in his own undertaking over and above all just debts,
obligations and properties exempt from execution (Sec. 12, Rule 114).
3. CASH DEPOSIT/CASH BOND;
a. It is the deposited by the accused himself or any person acting in his
behalf;
b. Cash shall be in the amount fixed by the court or recommended by
the prosecutor who investigated the case;
c. It is to be deposited before the:
i. Nearest collector of internal revenue;
ii. Provincial, city or municipal treasurer; or
iii. Clerk of court where the case is pending;
d. No further order from the court is necessary for the release of the
accused if the conditions prescribed were complied with; (Sec. 14, Rule 114)
e. ****If the accused does not appear when required, the whole
amount of the cash bond will be FORFEITED in favor of the government and the
accused will now be arrested.
4. RECOGNIZANCE
a. An obligation of record, entered into before some court or magistrate
duly authorized to take it with the condition to do some particular act.
b. It is an undertaking of a disinterested person with high credibility
wherein he will execute an affidavit of recognizance to the effect that when
175A surety company, which provided the bail bond for the release of the accused, filed a motion to withdraw
as surety on the ground of the accused’s non-payment of the renewal premium. Can the trial court grant
the withdrawal? (2011 BAR)
(A) *****No, since the surety’s undertaking is not annual but lasts up to judgment.
(B) Yes, since surety companies would fold up otherwise.
(C) No, since the surety company technically takes the place of the accused with respect to court attendance.
(D) Yes, since the accused has breached its agreement with the surety company.
the presence of the accused is required in court, the custodian will bring
him to that court.
c. ****This is allowed for light felonies only.
If the accused does not appear despite notice to the custodian, or the
person who executed the recognizance does not produce the accused, he may be
cited for CONTEMPT of court. ****This is the remedy because no money is
involved in recognizance.
BAIL BOND RECOGNIZANCE
An obligation under seal given by the accused An obligation of record entered into before
with one or more sureties, and made payable to some court or magistrate duly authorized to take
the proper officer with the condition to be void it with the condition to do some particular act,
upon performance by the accused of such acts as he the most usual condition in criminal cases being
may legally be required to perform. the appearance of the accused for trial.
Where filed176
1. In the court where the case is pending;177 or
2. In the absence or 178unavailability of the judge thereof, with any RTC
judge, MTC judge, or MCTC judge in the province, city, or municipality. ****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 (Sec. 19, Rule 114). ******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 on appeal.
176 [] Bar 2002: If an information was filed in the RTC Manila charging Mike with homicide and he was
arrested in Quezon City, in what court or courts may he apply for bail? ****Mike may apply for bail in RTC
Manila where the information was filed or in the RTC Quezon City where he was arrested, or if no judge
thereof is available, with any MTC or MCTC judge therein.
177 Q: Abraham was charged with homicide in the Regional Trial Court of Manila, Branch 10. The trial judge
issued the corresponding warrant of arrest and fixed the bail at P30,000. Before Abraham could be arrested, he
filed the fixed bail with the Metropolitan Trial Court of Manila, Branch 3, and the judge thereof approved
the same. Was the approval of the bail irregular? Is the bail invalid? Explain your answers. (1989 Bar Question)
Answer: No, because the bail should have been filed with the Regional Trial Court of Manila,
Branch 10, where the case was pending, or, in the absence or unavailability, of the judge thereof, with another
branch of the same court in Manila. The Metropolitan Trial Court of Manila had no authority to approve
the bail. (Sec. 14 and 16 of Rule 114)
178 Q: Florentino was charged with bigamy in the Regional Trial Court of Manila, Branch 15. The trial judge
issued the corresponding warrant of arrest and fixed the bail at P12,000. Subsequently, Florentino was arrested
in San Fernando, Pampanga, and detained in the municipal jail of the said town. He requested the judge
of the Municipal Trial Court of San Fernando, Pampanga, to order his release on a reduced bail. The
Municipal Trial Court judge agreed to reduce the amount of the bail to P1,000 provided that the same be
posted in cash, which the accused did. Was the reduction of the bail proper? Explain. (1989 Bar Question)
Answer: No, because the Municipal Trial Judge of San Fernando, Pampanga, had no authority to
approve the bail, much less to reduce the amount thereof even if posted in cash. *****Since Florentino was
arrested in San Fernando, Pampanga, he should have filed the bail with any Regional Trial Court of
said place, and only if there was no judge thereof available could he have filed it with the Municipal Trial
Judge of San Fernando, Pampanga. (Id.)
3. 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 RTC of said place, or if no
judge thereof is available, with any MTC judge, MCTC therein; or
4. 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. 17, Rule
114).
Other instances when bail may be availed of

1. When a person lawfully arrested without a warrant asks for a preliminary
investigation before the complaint or information is filed in court, he may apply for bail
(Sec. 6, Rule 112).
2. ******The court may require a witness to post bail if he is a MATERIAL
WITNESS and bail is needed to secure his appearance.179 When the court is
satisfied, upon proof or oath, that a material witness will not testify when
required, and he or she is a lone eyewitness to the crime, it may, upon
motion180 of either party, order the witness to post bail in such sum as may be
deemed proper. Upon refusal to post bail, the court shall commit him to
prison until he complies or is legally discharged after his testimony is taken (Sec. 14, Rule
119).
Law on JUVENILES in CONFLICT with the law

with respect to bail of non-capital offenses
1. ****The PRIVILEGED mitigating circumstances of minority shall be
considered (Sec. 34, RA 9344, Juvenile and Justice Act of 2006).181
179May the Court require a witness to post bail? Explain your answer
Yes. The court may require a witness to post bail if he is a material witness and bail is needed to secure
his appearance. The rules provide that when the court is satisfied, upon proof or oath, that a material witness
will not testify when required, it may, upon motion of either party, order the witness to post bail in such
sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he
complies or is legally discharged after his testimony is taken. (Sec. 6, Rule 119, Rules of Court)
180
[] Bar 1994: Ana is the lone eyewitness to the brutal murder of Bruno allegedly committed by
accused Carlo. She deliberately refuses to appear on the scheduled dates for the taking of her
testimony for fear of reprisal from Carlo's die-hard followers.
[] May Ana be ordered to post bail? Yes. Ana may be ordered to post bail. When the court is
satisfied, upon proof or oath, that a material witness will not testify when required, it may upon
motion of either party order the witness to post ball in such sum as may be deemed proper. (Sec. 14,
Rule 119).
a. ******May the court motu propio order her to post bail? NO. The rules require that the
order to post bail is upon motion of either party.
b. How shall Ana be proceeded against if she refuses to give bail? the court shall commit her
to prison until she complies or is legally discharged after her testimony has been taken (Sec. 14,
Rule 119).
c. What protection may Ana avail if in case she decides to testify at the trial? If Ana refuses
to post bail, Ana may avail of the benefits under the Witness Protection Act.
181 A.May bail be granted even if what is charged is a capital offense and the evidence of guilt is strong?
Explain. Although bail is not a matter of right when the accused is charged with a capital offense and the
2. Where a child is detained, the court shall order the:

a. RELEASE of the minor on recognizance to his/her parents and other
suitable person;
b. RELEASE of the child in conflict with the law on bail; or
c. TRANSFER of the minor to a youth detention home/youth
rehabilitation center (Sec. 35, RA 9344).
****The court shall not order the detention of a child in a jail pending trial
or hearing of his/her case (Sec. 35, RA 9344).
[] If minor is unable to furnish bail: The minor shall be, from the time of
his arrest, committed to the care of the DSWD or the local rehabilitation
center or upon recommendation of DSWD or other agencies authorized by the
court may, in its discretion be released on recognizance (Sec. 36, RA 9344).
COURT MARTIAL offenses: no bail

[] An accused military personnel triable by courts martial or those charged with
a violation of the Articles of War does NOT enjoy the right to bail.
Filing of bail after a final judgment

1. GR: Bail may not be filed once there is already a final judgment (Sec. 24,
Rule 114).
2. *****XPN: Even after conviction by the MTC, bail is still a matter of right.
If before such finality, the accused applies for probation, he may be allowed
temporary liberty under his bail. ****In no case shall bail be allowed after the
accused has COMMENCED to serve sentence.
5.6.2. When a matter of right; exceptions

5.6.3. When a matter of discretion
******182
evidence of guilt is strong, there are rulings that in exceptional cases, the court has discretion to grant bail on
such cases. (Barinaga vs. Tamin. 226 SCRA 206)
B. Boyet was born on 6 January 1979. On 15 February 1995 he was arrested on a charge of raping on
14 February 1995 his first cousin Loma, a 13-year old girl. While the prosecution recommended no bail for
Boyet since the evidence against him was strong. Boyet nevertheless applied for bail. Should Boyet be granted
bail. Explain. Answer: ******Yes, because a privileged mitigating circumstance will be considered in
determining whether an offense is bailable or not. (Bravo vs. Botja, 134 SCRA 466)
182 Q: When is bail a matter of right and when is it a matter of discretion? 5% (2006 Bar Question)
SUGGESTED ANSWER: Bail is a matter of right: (a) before or after conviction by the Metropolitan
Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court; (b) before
conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life
imprisonment (Sec. 4, Rule 114 of the 2000 Revised Rules on Criminal Procedure); and (c) if the charge
involves a capital offense and the evidence of guilt is not strong (Sec. 7, Rule 114 of the 2000 Revised Rules
on Criminal Procedure).
Bail is a matter of discretion upon conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment (Sec. 5, Rule 114 of the 2000 Revised Rules
on Criminal Procedure). If the penalty of imprisonment exceeds six years but not more than 20 years, bail
1. Bail as a MATTER OF RIGHT183 (MOR)184
shall be denied upon a showing by the prosecution, with notice to the accused, of the following or other
similar circumstances:
a. That the accused is a recidivist, quasi-recidivist or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;
b. That the accused is found to have previously escaped from legal confinement, evaded sentence, or
has violated the conditions of his bail without valid justification;
c. That the accused committed the offense while on probation, parole, or under conditional
pardon;
d. That the circumstances of the accused or his case indicate the probability of flight if released on
bail; or
e. That there is undue risk that during the pendency of the appeal, the accused may commit another
crime. (Sec. 1, Id.)
183
Art. III, Section 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall
not be required.
[] PP vs. Valdez 2005: *******The term "punishable" should refer to prescribed, not
imposable, penalty. TOM: the prescribed penalty is the range of period of time provided for in
the RPC. EG: for Article 249, the prescribed penalty for homicide is reclusion temporal which ranges
from 12 years and 1 day to 20 years of imprisonment. On the other hand, the imposable penalty is
that which takes into account the attending or modifying circumstances. EG: In homicide which
is committed with one ordinary aggravating circumstance and no mitigating circumstances, the
imposable penalty under the RPC shall be the prescribed penalty in its maximum period. From this
imposable penalty, the court chooses a single fixed penalty (also called a straight penalty) which
is the "penalty actually imposed" on a convict, i.e., the prison term he has to serve.
[] Now, for the complex crime of Malversation of Public Funds thru Falsification of
Official/Public Documents involving an amount that exceeds P22,000.00, the "prescribed
penalty" is reclusion temporal in its maximum period to reclusion perpetua….For purposes of
bail proceedings, it would be premature to rule that the supposed crime committed is a complex
crime since it is only when the trial has terminated that falsification could be appreciated as a
means of committing malversation… It would be the height of absurdity to deny Valdez the right to
bail and grant her the same only after trial if it turns out that there is no complex crime
committed. Likewise, it is unjust to give a stamp of approval in depriving the accused person's
constitutional right to bail for allegedly committing a complex crime that is not even
considered as inherently grievous, odious and hateful. To note, Article 48 of the RPC on
complex crimes does not change the nature of the constituent offenses; it only requires the
imposition of the maximum period of the penalty prescribed by law. When committed through
falsification of official/public documents, the RPC does not intend to classify malversation as a capital
offense. Otherwise, the complex crime of Malversation of Public Funds thru Falsification of
Official/Public Documents involving an amount that exceeds P22,000.00 should have been expressly
included in Republic Act No. 7659. If truly a non-bailable offense, the law should have
already considered it as a special complex crime like robbery with rape, robbery with
homicide, rape with homicide, and kidnapping with murder or homicide, which have
prescribed penalty of reclusion perpetua.
184When the accused is entitled as a matter of right to bail, may the Court refuse to grant him bail on the ground
that there exists a high degree of probability that he will abscond or escape? Explain. (2%)
******If bail is a matter of right, it cannot be denied on the ground that there exists a high degree
of probability that the accused will abscond or escape. What the court can do is to increase the amount of the
bail. One of the guidelines that the judge may use in fixing a reasonable amount of bail is the probability of the
accused appearing in trial. Sec 9[g], Id.)
a. Before or185 after conviction by the MeTC186 and MTC, and

[] Why? Because the imposable penalty is only 6 years max.
b. Before conviction by the RTC of an offense not punishable by
death, reclusion perpetua or life imprisonment (Sec. 4, Rule 114).
*EG: Homicide—it’s a MOR, before conviction. But if he is already
convicted, it is a matter of discretion already.
c. Before final conviction by all children in conflict with the law for an
offense not punishable by reclusion perpetua or life imprisonment.
2. Bail as a MATTER OF DISCRETION
a. Upon conviction by the RTC of an offense not punishable by death,
reclusion perpetua or life imprisonment;
[] Bail should be filed with the trial court despite the filing of a
notice of appeal provided that it has not yet transmitted the original record to
the appellate court. If the decision of the trial court convicting the accused
changed the nature of the offense from non-bailable to bailable, then bail
must be filed with the appellate court (Sec. 5, Rule 114).
b. Regardless of the stage187 of the criminal prosecution, a person
185 An indigent mother seeks assistance for her 14-year old son who has been arrested and detained for malicious
mischief. Would an application for bail be the appropriate remedy or is there another remedy available? Justify
your chosen remedy and outline the appropriate steps to take. (2013 BAR)
A: YES. An application for bail is an appropriate remedy to secure provisional remedy of the 14-year
old boy. Under the Rules, bail is a matter of right before or even after conviction before the MTC which has
jurisdiction over the crime of malicious mischief (Sec. 4, Rule 114). Consequently, bail can be posted as a matter
of right. [TOM: also CICL can apply for bail, especially since the offense is light]
186 The Metropolitan Trial Court convicted Virgilio and Dina of concubinage. Pending appeal, they applied for
bail, claiming they are entitled to it as a matter of right. Is their claim correct? (2011 BAR)
(A) No, bail is not a matter of right after conviction.
(B) Yes, bail is a matter of right in all cases not involving moral turpitude.
(C) No, bail is dependent on the risk of flight.
(D) Yes, bail is a matter of right in the Metropolitan Trial Court before and after conviction.
187 Q: A was charged with murder in the lower court. His Petition for Bail was denied after a summary
hearing on the ground that the prosecution had established a strong evidence of guilt. No Motion for
Reconsideration was filed from the denial of the Petition for Bail. During the reception of the evidence of
the accused, the accused reiterated his petition for bail on the ground that the witnesses so far presented
by the accused had shown that no qualifying aggravating circumstance attended the killing. The court
denied the petition on the grounds that it had already ruled that: (i) the evidence of guilt is strong; (ii) the
resolution for the Petition for Bail is solely based on the evidence presented by the prosecution; and (iii) no
Motion for Reconsideration was filed from the denial of the Petition for Bail. (2014)
a. If you are the Judge, how will you resolve the incident? A: If I were the Judge, I would grant the
second Petition for Bail. Under Section 7, Rule 114, Rules of Court, no person charge 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 stage of the criminal prosecution. In this case, the evidence of guilt for
the crime of murder is not strong, as shown by the prosecution’s failure to prove the circumstance that will
qualify the crime to, and consequently convict the accused of, murder. Accordingly, the accused should be
allowed to post bail because the evidence of his guilt is not strong (Sec. 13, Art. III, 1987 Constitution).
Besides, it is settled that an Order granting bail is merely interlocutory which cannot attain finality (Pobre
v. People, G. R. No. 141805, July 8, 2015).
b. Suppose the accused is convicted of the crime of homicide and the accused filed a Notice of
Appeal, is he entitled to bail? A: YES. The accused is entitled to bail subject to the discretion of the Court.
Under Section 5, Rule 114, Rules of Court, the appellate Court may allow him to post bail because the Trial
charged with a capital offense, or an offense punishable by reclusion perpetua

or life imprisonment, when evidence of guilt is not strong (Sec. 7, Rule 114);
and
****EG: Kidnapping with rape: MANDATORY HEARING is
needed to determine WON evidence of guilt is strong. What if evidence is proven
to be weak? Bail is still NOT a matter or right—it is discretionary upon the court.
[] Now, this BAIL HEARING is not a trial (but evidence presented is
automatically absorbed as evidence in the trial), but the Court has to rely on its
own, independent and personal evalúation of the evidence, not on the mere
recommendation of the prosecutor, neither of the DOJ Secretary.188
****WI the accused is already convicted by the RTC of Robbery with
homicide? It is no longer a matter of discretion. The convict is NOT entitled to
bail because his conviction shows that evidence of his guilt is not merely
strong—it was proven beyond reasonable doubt.
c. A child in conflict with the law charged with an offense punishable by
death, reclusion perpetua or life imprisonment when evidence of guilt is not
strong (Sec. 28, A.M. No. 02-1-18-SC).
****The prosecution cannot adduce evidence for the denial of bail
where it is a matter of right. However where the grant of bail is discretionary, the
prosecution may show proof to deny the bail. Whether bail is a matter of right or
of discretion, reasonable notice of hearing is required to be given to the
prosecutor or fiscal, or at least he must be asked for his recommendation.
Recommendation is necessary because in fixing the amount of bail, the judge
is required to take into account a number of factors such as the applicant’s
character and reputation, forfeiture of other bonds or whether he is a fugitive from
justice.
Court in convicting him, changed the nature of the offense from non-bailable to bailable. Be that as it may,
the denial of bail pending appeal is a matter of wise discretion since after conviction by the trial court, the
presumption of innocence terminates and, accordingly, the constitutional right to bail ends. (Jose
Antonio Leviste v. Court of Appeals, G.R. No. 189122, March 17, 2010).
188 Q: After an information for rape was filed in the RTC, the DOJ Secretary, acting on the accused's petition for
review, reversed the investigating prosecutor's finding of probable cause. Upon order of the DOJ Secretary, the
trial prosecutor filed a Motion to Withdraw Information which the judge granted. The order of the judge stated
only the following: "Based on the review by the DOJ Secretary of the findings of the investigating prosecutor
during the preliminary investigation, the Court agrees that there is no sufficient evidence against the accused to
sustain the allegation in the information. The motion to withdraw Information is, therefore, granted." If you
were the private prosecutor, what should you do? Explain. (2012 BAR)
A: If I were the private prosecutor, I would file a petition for certiorari under Rule 65 with the Court
of Appeals (Cerezo v. People, GR No.185230, June 1, 2011). It is well- settled that when the trial court is
confronted with a motion to withdraw an Information (on the ground of lack of probable cause to hold the
accused for trial based on a resolution of the DOJ Secretary), *****the trial court has the duty to make an
independent assessment of the merits of the motion. It may either agree or disagree with the
recommendation of the Secretary. Reliance alone on the resolution of the Secretary would be an abdication of
the trial court’s duty and jurisdiction to determine a prima facie case. The court must itself be
convinced that there is indeed no sufficient evidence against the accused. Otherwise, the judge acted with
grave abuse of discretion if he grants the Motion to Withdraw Information by the trial prosecutor (Harold
Tamargo v. Romulo Awingan et. al. G.R. No. 177727, January 19, 2010).
[] Remedy of the accused when bail is discretionary: When bail is

discretionary, the remedy of the accused is to file a petition for bail. Once a
petition for bail is filed, the court is mandated to set a hearing. The purpose of
the hearing is to give opportunity to the prosecution to prove that the evidence
of guilt is strong. If strong, bail will be denied. If weak, the bail will be granted.
3. Guidelines regarding the effectivity of bail—The SC en banc laid the
following policies concerning the effectivity of the bail of the accused:
a. When the accused is charged with an offense which is punishable by a
penalty lesser than reclusion perpetua at the time of the commission of the offense, or
the application for bail and thereafter he is convicted of a lesser offense than that
charged, he may be allowed to be released on the same bail he posted, pending
his appeal, provided, he does not fall under any conditions of bail.
b. The same rule applies if he is charged with a capital offense but later
on convicted of a lesser offense, that is, lower than that charged.
c. If on the other hand, he is convicted of that offense which was
charged against him, his bail shall be cancelled and he shall thereafter be
placed in confinement.
****Bail in these circumstances is still not a matter of right but only a matter
of sound discretion of the court (Herrera, 2007).
4. ******No bail at all: GROUNDS FOR DENIAL of bail if the penalty
imposed by the trial court exceeds 6 years—If the penalty imposed by the trial
court is imprisonment exceeding 6 years, the accused shall be denied bail, or
his bail shall be cancelled upon showing by the prosecution, with notice to the
accused, of the following or other similar circumstances: [Sec 5]
a. That he is a recidivist, quasi-recidivist or habitual delinquent,189 or
has committed the crime aggravated by the circumstance of reiteration;
b. That he PREVIOUSLY190 escaped from legal confinement, evaded
sentence, or has violated the conditions of his bail without valid justification;
c. That he committed the offense while on probation, parole, or under
conditional pardon;
d. That the circumstances of his case indicate the probability of flight if
189 Angie was convicted of false testimony and served sentence. Five years later, she was convicted of
homicide. On appeal, she applied for bail. May the Court of Appeals deny her application for bail on ground of
habitual delinquency? (2011 BAR)
(A) Yes, the felonies are both punishable under the Revised Penal Code.
(B) Yes, her twin convictions indicated her criminal inclinations.
(C) No, the felonies fall under different titles in the Revised Penal Code. [TOM: this suggested answer
refers to recidivism, not habitual delinquency]
(D) No, the charges are both bailable.
190 [] This item talks about “previous” conviction. Compare it with this problem from Bar 1999: When the
accused is entitled as a matter of right to bail, may the court refuse to grant him bail on the ground that there
exists a high degree of probability that he will abscond or escape? NO. ******Where the offense is bailable,
the mere probability that the accused will escape or if he had previously escaped while under detention
does not deprive him of his right to bail. The REMEDY IS TO INCREASE the amount of bail, provided
the amount is not excessive (Sy Guan v. Amparo, G.R. No. L-1771, December 4, 1947).
released on bail; or
e. That there is undue risk that during the pendency of the appeal, he may
commit another crime (Sec. 5,191 Rule 114).
5. DUTIES OF THE TRIAL JUDGE if an application for bail is filed
a. Reasonably NOTIFY the prosecutor of the hearing of the application
for bail or require him to submit his recommendation (Sec. 18, Rule 114);
b. Conduct a HEARING of the application for bail regardless of whether or
not the prosecution refuses to present evidence to show that the guilt of the
accused is strong for the purpose of enabling the court to exercise its sound
discretion (Secs. 7 and 8, Rule 114);
c. DECIDE whether the evidence of guilt of the accused is strong based on
the summary of evidence of the prosecution (Baylon v. Sison, A.M. No. 92-7-
360-0, April 6, 1995);192
191
[] Q: Charged with murder, Leviste was convicted with the crime of homicide and was sentenced
to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12
years and one day of reclusion temporal as maximum. Pending appeal he applied for bail, but the
same was denied by the CA. *******Petitioner’s theory is that, where the penalty imposed by the trial
court is more than 6 years but not more than 20 years and the circumstances mentioned in the third
paragraph of Sec. 5 are absent, bail must be granted to an appellant pending appeal. In an application
for bail pending appeal by an appellant sentenced to a penalty of imprisonment for more than six
years, does the discretionary nature of the grant of bail pending appeal mean that bail should
automatically be granted absent any of the circumstances mentioned in the third paragraph of Sec. 5,
Rule 114 of the Rules of Court? NO. The third paragraph of Sec. 5 of Rule 114 applies to two
scenarios where the penalty imposed on the appellant applying for bail is imprisonment exceeding 6
years.
a. The first scenario involves the absence of any of the circumstances enumerated in the
said paragraph. Here, bail is a matter of sound judicial discretion. This means that, if none of the
circumstances mentioned in the 3rd paragraph of Sec. 5 Rule 114 is present, the appellate court has the
DISCRETION to grant or deny bail. An application for bail pending appeal may be denied even
if the bail-negating circumstances in the third paragraph of Sec. 5, Rule 114 are absent.
b. The second scenario contemplates the existence of at least one of the said circumstances.
Here, the appellate court exercises a more STRINGENT discretion, that is, to carefully ascertain
whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option
except to deny or revoke bail pending appeal.
****Thus a finding that none of the said circumstances is present will not automatically
result in the grant of bail. Such finding will simply authorize the court the LESS STRINGENT
sound discretion approach (Leviste v. CA, G.R. No. 189122, March 17, 2010).
192
[] Bar 1998: In an Information charging them with murder, policemen Ian, Paul and Steve were
convicted of homicide. Ian appealed from the decision but Paul and Steve did not. Paul started
serving his sentence but Steve escaped and is at large. In the CA, Ian applied for bail but was
denied. Finally, the CA rendered a decision acquitting Ian on the ground that the evidence pointed
to the NPA as the killers of the victim.
a. Was the Court of Appeal's denial of Ian's application for bail proper? YES. ****The court
had the discretion to do so. Although Ian was CONVICTED of homicide only, since he was
CHARGED with a capital offense, on appeal he could be convicted of the capital offense
(Obosa v. CA, G.R. No. 114350, January 16, 1997). Alternative answer: Under Circular No. 2-92, Ian is
entitled to bail because he was convicted of homicide and hence the evidence of guilt of murder is not
strong.
d. If the guilt of the accused is not strong, DISCHARGE the accused

upon the approval of the bailbond. Otherwise, petition should be denied (Sec. 19, Rule
114).
6. Party with the burden of proof in bail applications: It is the PROSECUTION
who has the burden of showing that evidence of guilt is strong at the hearing
of an application for bail filed by a person who is charged for the commission of a
capital offense or offense punishable by reclusion perpetua or life imprisonment
(Sec. 8, Rule 114).
7. Effect of a grant of bail: The accused shall be RELEASED UPON
APPROVAL of the bail by the judge (Sec. 19, Rule 114).
8. Remedy of the accused when bail is denied by the trial court: ****File a
petition for certiorari under Rule 65 based on grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing such order. Such petition
must take into account the hierarchy of courts. In the meantime however, while
the case is pending, the accused may not be released (Caballes v. CA, G.R. No.
163108, February 23, 2005).
9. FRIVOLOUS COMPLAINTS against judges: A party or a lawyer who is
guilty of filing a frivolous administrative complaint or a petition for inhibition
against a judge arising from the latter's action on the application for bail may be
appropriately sanctioned (Sec. 7, A.M. No. 12-11-2-SC).
5.6.4. Hearing193 of application194 for bail in capital offenses

1. CAPITAL OFFENSE: It refers to 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. 6, Rule 114). ****RA 9346: An Act Prohibiting the
Imposition of Death Penalty in the Philippines, abolished the death penalty.
b. Can Paul and Steve be benefited by the decision of the CA? YES. Paul, who did not appeal,
can benefit from the decision of the CA which is favorable and applicable to him (Sec. 11(a) Rule
122). The benefit will also apply to Steve even if his appeal is dismissed because of his escape.
193
[] Bar 2002: Domingo was charged with murder, a capital offense. After arraignment, he applied
for bail. The trial court ordered the prosecution to present its evidence in full on the ground that
only on the basis of such presentation could it determine whether the evidence of Domingo's guilt was
strong for purposes of bail. Is the ruling correct?
NO. 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 prosecution is
only required to present as much evidence as is necessary to determine whether the evidence of
Domingo’s guilt is strong for purposes of bail (Sec. 8, Rule 114).
194Q: Accused was charged with murder. At the hearing of his application for bail, the prosecution manifested
that it was ready to present evidence to prove that the guilt of the accused is strong. The defense, however,
contended that the report and documents/papers in support of the prosecutor’s certification of probable cause
in the information is sufficient to determine whether the evidence of guilt is strong, thereby dispensing with the
presentation of the prosecution’s evidence. As Judge, how would you resolve the contention of the defense?
Explain. (1996 Bar Question) Answer:
I would overrule the contention of the defense because the prosecution has the right to present
evidence to prove that evidence of guilt is strong. (Sec. 8 of Rule 114) *****A hearing in indispensable.
[TOM: The Act did not abolish it, but prohibited its imposition]
[] ****May a person charged with a capital offense be admitted to bail? It
depends. 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 stage of the criminal prosecution (Sec.
7, Rule 114). NB: If he was charged of a capital offense but was convicted of a
lesser offense, and there was an appeal, he could not post bail as a matter of right
because upon appeal, which opens the entire case for review, he could still be
convicted of the capital offense.195
2. Bail in offenses punishable by death, reclusion perpetua or life
imprisonment
a. The hearing of the accused's motion for bail shall be summary,196 with
195 Q: Claudio Ty was charged with murder in an information filed with the Regional Trial Court in Dumaguete
City. Through counsel, he filed an application for bail. Without conducting a hearing on said application and
without giving the prosecution an opportunity to comment thereon, the judge granted bail to Ty after
examining the complaint and the affidavit attached to the bail application which, in the evaluation of the
judge, tend to show that the evidence of guilt is not strong. The prosecution moved for reconsideration
of the order granting ball, contending that the procedure followed by the judge was irregular. (1991 Bar
Question)
(a) Was the procedure followed by the judge in granting bail correct? Answer: No. because the
prosecution should have been given an opportunity to comment on the application and to present strong
evidence of guilt. (People v. Sola, 103 SCRA 393)
(b) If the judge denies the prosecution’s motion for reconsideration, what remedy or remedies may the
prosecution pursue if it wishes to assail the order before the appellate court? The prosecution may file a petition
for certiorari and mandamus with the Court of Appeals or the Supreme Court in order to nullify the order of
the RTC and to compel it to hold a hearing. It may also ask for a writ of preliminary injunction against
the order granting bail.
(c) Supposing that Ty, after trial, was found guilty of murder and was sentenced to reclusion
perpetua, and he appealed to the Supreme Court, is he entitled to bail during the pendency of such appeal?
Answer: No, Ty is not entitled to bail as a matter of right because the evidence of his guilt is so strong
that it resulted in his conviction by the trial court. However, on exceptional grounds, he may be granted
ball on appeal at the discretion of the court. (Teehankee v. Director of Prisons, 76 Phil. 756)
(d) Supposing that Ty was convicted of the lesser offense of homicide and was sentenced to a penalty,
the maximum of which is within the range of reclusion temporal and he appealed to the Court of Appeals is he
entitled to bail during the pendency of such appeal? Answer: No. he is not entitled to bail as a matter of right,
because he may on appeal be found guilty of murder and sentenced to reclusion perpetua.
(e) In relation to (d) above, the Court of Appeals did not affirm or modify the judgment. Instead, it
expressed the opinion that the crime committed is murder, and that the penalty should be reclusion perpetua,
and, accordingly certified the case to the Supreme Court for final determination. Did it act properly?
*****No. the Court of Appeals should have rendered judgment imposing the penalty of reclusion
perpetua, refrained from entering Judgment, and certified the entire record to the Supreme Court for
review. (People v. Daniel 86 SCRA 367; Sec. 13 of Rule 124)
196 Which of the following states a correct guideline in hearing applications for bail in capital offenses? (2011
BAR)
(A) The hearing for bail in capital offenses is summary; the court does not sit to try the merits of the
case.
(B) The prosecution’s conformity to the accused’s motion for bail is proof that its evidence of his guilt is not
strong.
(C) The accused, as applicant for bail, carries the burden of showing that the prosecution’s evidence of his guilt
is not strong.
(D) The prosecution must have full opportunity to prove the guilt of the accused.
the prosecution bearing the burden of showing that the evidence of guilt is
strong. The accused may at his option, if he wants the court to consider his
evidence as well, submit in support of his motion the affidavits of his
witnesses attesting to his innocence.
b. At the hearing of the accused's motion for bail, the prosecution shall
present its witnesses with the option of examining them on direct or adopting
the affidavits they executed during the preliminary investigation as their direct
testimonies.197
c. The court shall 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 shall then allow counsels from both sides to
examine the witnesses as well. The court shall afterwards hear the oral arguments
of the parties on whether or not the evidence of guilt is strong.
d. ****Within 48 hours after hearing, the court shall issue an order
containing a brief summary of the evidence adduced before it, followed by its
conclusion of whether or not the evidence of guilt is strong. Such conclusion
shall NOT be regarded as a pre-judgment on the merits of the case that is to
be determined only after a full-blown trial (Sec. 6, A.M. No. 12-ll-2-SC).
5.6.5. Guidelines in fixing198 amount of bail

1. Duty of the court to fix appropriate bail: The court shall, after finding sufficient
197 Q: Accused was charged with the crime of kidnapping with murder. The information recommended no
bail, the charge being a capital offense which is non-bailable. After entering a plea of not guilty, accused filed an
application for bail. The application was opposed by the prosecution. While the prosecution was still presenting
evidence in support of its opposition to the application for bail, the trial judge issued an order fixing bail of P
100,000.00 for the provisional liberty of accused. The order reads. "After due consideration of the testimonial
and documentary evidence presented by the prosecution, this Court finds reasonable ground to believe that no
strong evidence exists against accused. WHEREFORE, the application for bail is granted. Accused is granted
bail, which is fixed P 100,000.00, for his provisional liberty." Did the trial judge act correctly? Why? (1993 Bar
Question) Answer:
No, because since the accused was charged with an offense punishable by reclusion perpetua or
higher, he is not entitled to bail as a matter of right when evidence of guilt is strong. It was premature
for the court to grant bail while the prosecution was still presenting evidence in support of its opposition to
the application for bail. The prosecution had the right to present all evidence to show the guilt of the accused
before the court resolved the motion for bail. (People vs. Sandiego. 26 SCRA 522)
198 Q: A was charge before the Sandiganbayan with a crime of plunder, a non-bailable offense, where the court
had already issued a warrant for his arrest. Without A being arrested, his lawyer filed a Motion to Quash
Arrest Warrant and to Fix Bail, arguing that the ******allegations in the information did not charge the
crime of plunder but a crime of malversation, a bailable offense. The court denied the motion on the
ground that it had not yet acquire jurisdiction over the person of the accused and that the accused should
be under the custody of the court since the crime charged was non-bailable. The accused’s lawyer
counter-argued that the court can rule on the motion even if the accused was at-large because it had
jurisdiction over the subject matter of the case. According to said lawyer, there was no need for the accused to be
under the custody of the court because what was filed was a Motion to Quash Arrest and to Fix Bail not
a Petition for Bail. (2014)
a. If you are the Sandiganbayan, how will you rule on the motion? A: I will grant the Motion to quash
the warrant of arrest but I will deny the Motion to fix bail. *****A motion to fix bail is essentially an
cause to hold the accused for trial, fix the amount of bail that the latter may post
for his provisional release, taking into account the public prosecutor's
recommendation and any relevant data that the court may find from the
criminal information and the supporting documents submitted with it, regarding
the following:
a. Financial ability of the accused to give bail
b. Nature and circumstances of the offense
c. Penalty for the offense charged
d. Character and reputation of the accused
e. Age and health199 of the accused;
f. Weight of the evidence against the accused
g. Probability of the accused appearing in trial
h. Forfeiture of other bonds
i. Fact that the accused was a fugitive from justice when arrested
j. Pendency of the cases in which the accused is under the bond (Sec. 1,
A.M. No. 12-11-2-SC).
****The principal factor to the determination of which most other factors
are directed is the probability of the appearance of the accused, or of his flight
to avoid punishment (Villasenor v. Abano, G.R. No. L-23599, September 29,
1967).
2. FIXING OF THE AMOUNT of bail: Pending the raffle of the case to a
regular branch of the court, the accused may move for the fixing of the amount
of bail, in which event, the Executive Judge shall cause the immediate raffle
of the case for assignment and the hearing of the motion (Sec. 2, A.M. No. 12-11-
2-SC).
5.6.6. Bail when not required

******Instances when bail is NOT necessary or when recognizance is
sufficient
application for bail (People v. Bucalon, G.R. No. 176933, October 2, 2009). Relative thereto, bail is the
security for the release of the person in the custody of the law (Sec. 1, Rule 114). The Rules use the word
“custody” to signify that bail is only available for someone who is under the custody of the law (Peter
Paul Dimatulac v. Hon. Sesinando Villon, G.R. No. 127107, October 12, 1998). Hence, A cannot seek any
judicial relief if he does not submit his person to the jurisdiction of the Sandiganbayan. On the other hand,
the Sandiganbayan may grant the Motion to quash the warrant of arrest. ******It is well settled that
adjudication of a motion to quash a warrant of arrest requires neither jurisdiction over the person of the
accused nor custody of law over the body of the accused. Otherwise stated, an accused can invoke the
processes of the court even [outside] custody of the law (Jose C. Miranda v. Virgilio M. Tuliao, G.R. No.
158763, March 31, 2006). Thus, Sandiganbayan may grant the Motion to quash the warrant of arrest.
b. If the Sandiganbayan denies the motion, what judicial remedy should the accused undertake? A:
The accused may file a Motion for Reconsideration. If the same is denied, the accused may resort to a
Petition for Certiorari under Rule 65 directly to the Supreme Court.
199 [] Q: Is bail proper if the accused is suffering from poor health condition? NO. If continued confinement
of the accused would be detrimental or dangerous to his health, the remedy would be to submit him to
medical treatment or hospitalization. Note that this may not be true anymore considering Enrile vs. SB, 18
August 2015, where Enrile was granted bail based on his age and humanitarian reasons.
1. When the offense charged is for violation of an ordinance,200 a light, or a

criminal offense, the imposable penalty of which does not exceed 6 months
imprisonment and/or Php2,000 fine, under circumstances provided under RA
6036 (An Act providing that bail shall not, with certain exceptions, be required in
cases of violations of municipal or city ordinances and in light offenses);
2. Where a person has been in custody for a period equal to or more than the
minimum of the imposable principal penalty, without application of the
Indeterminate Sentence Law or any modifying circumstance, in which case the court, in its
discretion, may allow his release on a reduced bail or on his own recognizance
(Sec. 16, Rule 114);
3. Where the accused has applied for probation, pending the resolution of the case but
no bail was filed or the accused is incapable of filing one (Sec. 24, Rule 114);
4. In case of a youthful offender held for a physical and mental examination,
trial, or appeal, if he is unable to furnish bail and under circumstances envisaged in PD 603
(Child and Youth Welfare Code) as amended.
5. Before final conviction, all juveniles charged with offenses falling under the
Revised Rule on Summary Procedure shall be released on recognizance to the
custody of their parents or other suitable person who shall be responsible for
the juveniles’ appearance in court whenever required (Sec. 15, A.M. No. 02-1-18-SC).
5.6.7. Increase or reduction of bail

1. 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 (Sec. 20, Rule 114). ****A motion to reduce the amount of
bail likewise requires a hearing before it is granted in order to afford the prosecution
the chance to oppose it (Sec. 18, Rule 114).
2. ****Excessive bail may not be imposed because that is tantamount to
denying bail.
3. When accused does not have financial ability to post the bail initially fixed by
the court: The accused may move for its reduction by submitting documents
and affidavits that may warrant his claim for reduction (Sec. 3, A.M. No. 12-11-
2-SC).
4. Priority of Hearing for motion for reduction of bail: Such motion shall
enjoy priority in the hearing of cases (Sec. 2 A.M. No. 12-11-2-SC).
200 Berto was charged with and convicted of violating a city ordinance against littering in public places
punishable by imprisonment of one month or a fine of P1,000.00. But the city mayor pardoned him. A year
later, he was charged with violating a city ordinance against jaywalking which carried the same penalty. Need
Berto post bail for such offense? (2011 BAR)
(A) Yes, his previous conviction requires posting of bail for the present charge.
(B) Yes, since he may be deemed to have violated the terms of his pardon.
(C) No, because he is presumed innocent until proven otherwise.
(D) No, one charged with the violation of a city ordinance is not required to post bail, notwithstanding
a previous pardon.
5. The order fixing the amount of the bail shall not be subject to appeal (Sec.
4, A.M. No. 12-11-2-SC).
6. Release after service of minimum imposable penalty: The accused who has
been detained for a period at least equal to the minimum of the penalty for
the offense charged against him shall be ordered released, motu proprio or on
motion and after notice and hearing, on his own recognizance without
prejudice to the continuation of the proceedings against him (Sec. 5, A.M. No. 12-ll-
2-SC citing Sec. 16, Rule 114 of the Rules of Court and Sec. 5 (b) of RA 10389).
5.6.8. Forfeiture and cancellation of bail

1. Effects of the failure of the accused to appear in court when so required
a. The bail shall be declared forfeited; or
b. The bondsman is given 30 days within which to:
i. Produce their principal or give the reason for his non-
production; and
ii. Explain why the accused did not appear before the court when first
required to do so.
[] Liability of the bondsmen if due to failure to produce their
principal, give the reason for his non-production, or explain why the accused did
not appear when required: If the bondsmen fail to comply with their obligations,
the court will render judgment against the bondsmen jointly and severally if
there are more than one bondsman (Sec. 21, Rule 114).The court shall not reduce
or mitigate the liability of the bondsmen unless the accused has been
surrendered or is acquitted (Sec. 21, Rule 114). The 30-day period granted to
the bondsmen to comply with the two requisites for the lifting of the order of
forfeiture cannot be shortened by the court but may be extended for good
cause shown.
2. CANCELLATION OF BAIL—Upon the application of the bondsmen
with due notice to the prosecutor, bail may be cancelled upon:
a. Surrender of the accused; and
b. Proof of death of the accused (Sec. 22, Rule 114).
[] Instances when there is automatic cancellation of bail
a. Acquittal of the accused;
b. Dismissal of the case; and
c. Execution of judgment of conviction (Sec. 22, Rule 114).
****In all instances of cancellation of bail, automatic or otherwise, it shall be
without prejudice to any liability on the part of the surety.
3. Order of forfeiture vs. Order of cancellation
ORDER OF ORDER OF CANCELLATION
FORFEITURE
Conditional and Not independent of the order of forfeiture. It is a judgment ultimately

interlocutory. It is not determining the liability of the surety thereunder and therefore final.
appealable. Execution may issue at once.
5.6.9. Application not a bar to objections in illegal arrest, lack of or irregular

preliminary investigation
1. Objection in illegal arrest or lack of or irregularity of preliminary
investigation: ****An application for bail is not a bar to objections in illegal
arrest or irregularity or lack of preliminary investigation, provided that he raises
them BEFORE entering his plea. The court shall resolve the matter as early as
possible, not later than the start of the trial on the case (Sec. 26, Rule 114).
2. ******Is arraignment required before the court grants bail? NO,201 for the
following reasons (mainly: even without a formal charge, you can be granted bail
201Q: Paz was awakened by a commotion coming from a condo unit next to hers. Alarmed, she called up the
nearby police station. PO1 Remus and P02 Romulus proceeded to the condo unit identified by Paz. PO 1
Remus knocked at the door and when a man opened the door, PO1 Remus and his companions introduced
themselves as police officers. The man readily identified himself as Oasis Jung and gestured to them to come in.
Inside, the police officers saw a young lady with her nose bleeding and face swollen. Asked by P02 Romulus
what happened, the lady responded that she was beaten up by Oasis Jung. The police officers arrested Oasis
Jung and brought him and the young lady back to the police station. PO1 Remus took the young lady's
statement who identified herself as AA. She narrated that she is a sixteen-year-old high school student; that
previous to the incident, she had sexual intercourse with Oasis Jung at least five times on different occasions and
she was paid P5,000.00 each time and it was the first time that Oasis Jung physically hurt her. P02 Romulus
detained Oasis Jung at the station's jail. After the inquest proceeding, the public prosecutor filed an information
for Violation of R.A. No. 9262 (The VAWC Law) for physical violence and five separate informations for
violation of R.A. No. 7610 (The Child Abuse Law). Oasis Jung's lawyer filed a motion to be admitted to bail
but the court issued an order that approval of his bail bond shall be made only after his arraignment. (2015)
a. Did the court properly impose that bail condition? A: NO. The court did not properly impose that
bail condition. The Revised Rules of Criminal Procedure do not require the arraignment of the accused as
prerequisite to the conduct of hearings in the bail petition. A person is allowed to file a petition for bail as
soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. An accused need not wait
for his arraignment before filing the bail petition (Serapio v. Sandiganbayan, G.R. No. 149116, January 2,
2003). Moreover, the condition that the approval of bail bonds shall be made only after arraignment would place
the accused in a position where he has to choose between: (1) filing a motion to quash (the Information) and
thus delay his released on bail because until his motion to quash can be resolved, his arraignment cannot be
held; and (2) foregoing the filing of a motion to quash (the Information) so that he can be arraigned at once and
thereafter be released on bail (Lavides v. Court of Appeals, G.R. No. 129670, February 1, 2000).
b. After his release from detention on bail, can Oasis Jung still question the validity of his arrest? A:
YES. *****Oasis Jung can still question the validity of his arrest even after his release from detention on
bail. Under Section 26, Rule 114 of the Rules of Court, 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 therefor, or from
assailing the regularity or questioning the absence of a preliminary investigation of a charge against him,
provided that he raises them before entering his plea.
c. Before arraignment, Oasis Jung's lawyer moved to quash the other four separate informations for
violation of the child abuse law invoking the single larceny rule. Should the motion to quash be granted?
(2015) A: NO. The court should not grant the motion to quash, *****because the “single larceny rule” does
not find application where the charges involve violations of R.A. 9262 (The VAWC Law) and R.A. 7610
(The Child Abuse Law), considering that each criminal act is based on a different criminal impulse and
intent. In Santiago v. Garchitorena, G.R. No. 109266, December 2, 1993, the Supreme Court explained that the
*****“Single Larceny doctrine” applies only to criminal crimes committed delicto continuado, which
exists if there should be plurality of acts performed during a period of time; unity of penal provision
violated; and unity of criminal intent or purpose, which means that two or more violations of the same
penal provisions are united in one and same instant or resolution leading to the perpetration of the same
criminal purpose or aim. The said rule applies in theft cases, where the taking of several things, whether
belonging to the same or different owners, at the same time and place constitutes but one larceny (Id).
as long as you are under the custody of the court):

a. The trial court could ensure the presence of the accused at the
arraignment precisely by granting bail and ordering his presence at any stage of the
proceedings (Sec. 2(b), Rule 114); and
b. *****The accused would be placed in a position where he has to
choose between filing a motion to quash and thus delay his release on bail, and
foregoing the filing of a motion to quash so that he can be arraigned at
once and thereafter be released on bail (Lavides v. Court of Appeals, G.R. No. 129670,
February 1, 2000).
[] Q: Bobby was charged with plunder before the Sandiganbayan.
Thereafter, he was arrested by virtue of a warrant of arrest. He then filed an
application for bail. The Sandiganbayan refused to resolve his application for
bail until after his arraignment. He argues that his arraignment is not a pre-
condition to his application for bail. Is Bobby correct? YES. ****The
arraignment of an accused is not a prerequisite to the conduct of hearings on
his petition for bail. A person is allowed to petition for bail as soon as he is
deprived of his liberty by virtue of his arrest or voluntary surrender. An accused
need not wait for his arraignment before filing a petition for bail.
[] If the court finds in such case that the accused is entitled to bail because
the evidence against him is not strong, he may be granted provisional liberty
even prior to arraignment; for in such a situation, bail would be "authorized"
under the circumstances (Serapio v. Sandiganbayan, G.R. Nos. 148468, 148769
& 149116, January 28, 2003).
[] Q: Paolo was charged with estafa. Thereafter, he was arrested by virtue of
a warrant of arrest issued by the RTC. Before arraignment, Paolo filed an
application for bail. Paolo then filed a motion to quash information on the
ground that it charges more than one offense. RTC denied bail to Paolo on the
ground that an application for bail and a motion to quash are inconsistent
remedies. Is the RTC correct? NO. There is no inconsistency in filing an
application of an accused for bail and his filing of a motion to quash. The
purpose of bail is to obtain the provisional liberty of a person charged with an
offense until his conviction while at the same time securing his appearance at
the trial. On the other hand, a motion to quash an information is the mode by
which an accused assails the validity of a criminal complaint or information
filed against him for insufficiency on its face in point of law, or for defects which are apparent
on the face of the information. These two reliefs have objectives which are not
necessarily antithetical to each other. The right of an accused to seek
provisional liberty when charged with an offense not punishable by death,
reclusion perpetua or life imprisonment, or when charged with an offense
punishable by such penalties but after due hearing, evidence of his guilt is found
not to be strong, does not preclude his right to assail the validity of the
information charging him with such offense. It must be conceded, however,
that if a motion to quash a criminal complaint or information on the ground that
the same does not charge any offense is granted and the case is dismissed and the
accused is ordered released, the petition for bail of an accused may become
moot and academic (Serapio v. Sandiganbayan, G.R. Nos. 148468, 148769 &
149116, January 28, 2003).
5.6.10. Hold departure order & Bureau of Immigration watchlist

1. Hold Departure Order (HDO): ****Order issued by the Secretary of Justice
or the proper RTC commanding the Commissioner of the Bureau of
Immigration to prevent the departure for abroad of Filipinos and/or aliens
named therein by including them in the Bureau’s Hold Departure List (DOJ
Dept. Order No. 17).
****The proper court may issue an HDO or direct the Department of
Foreign Affairs to cancel the passport of the accused. This is a case of a
VALID RESTRICTION on a person’s right to travel so that he may be dealt
with in accordance with the law (Silverio v. CA, G.R. No. 94284, April 8, 1991).
2. Who may issue an HDO—A hold departure order may be issued either by:
a. The RTC pursuant to SC Circular 39-97;
b. By the RTC sitting as a Family Court pursuant to A.M. No. 02-11-12-SC; or
c. By the DOJ pursuant to Department Order No. 41.
******SC Circular 39-97 (June 19, 1997), "limits the authority to issue
HDO to the RTCs.202 Considering that only the RTC is mentioned in said
Circular and by applying the rule on legal hermeneutics of express mention
implied exclusion, courts lower than the RTC — such as the MeTC, MTC,
MTCC and MCTC — has no authority to issue hold departure orders in
criminal cases (A.M. No. 99-9-141-MTCC, November 25, 1999).
3. HDO when issued: HDO shall be issued only in criminal cases within the
exclusive jurisdiction of the RTCs (SC Circular 39-97) upon proper motion of
the party.
4. Effect of the acquittal of the accused or dismissal of the case to the hold
departure order issued by the RTC: Whenever (a) the accused has been acquitted;
or (b) the case has been dismissed, the judgment of acquittal or the order of
dismissal shall include therein the cancellation of the HDO issued. The Court
concerned shall furnish the Department of Foreign Affairs and the Bureau of
Immigration with a copy each of the judgment of acquittal promulgated or the
202Q: While window-shopping at the mall on August 4, 2008, Dante lost his organizer including his credit card
and billing statement. Two days later, upon reporting the matter to the credit card company, he learned that a.
one-way airplane ticket was purchased online using his credit card for a flight to Milan in mid-August 2008.
Upon extensive inquiry with the airline company, Dante discovered that the plane ticket was under the name of
one Dina Meril. Dante approaches you for legal advice. What is the proper procedure to prevent Dina from
leaving the Philippines? (2%) (2010 Bar Question) SUGGESTED ANSWER:
I would advise: (1) The filing of an appropriate criminal action cognizable by the RTC against Dina
and the filing in said criminal action a Motion for the issuance of a Hold Departure Order; (2) thereafter, a
written request with the Commissioner of the Bureau of Immigration for a Watch List Order pending
the issuance of the Hold Departure Order should be filed; (3) then, the airline company should be
requested to cancel the ticket issued to Dina.
order of dismissal issued within 24 hours from the time of

promulgation/issuance and likewise through the fastest available means of
transmittal.
5. Instances when DOJ may issue an HDO
a. Against an accused irrespective of nationality, in criminal case falling
within the jurisdiction of courts BELOW the RTCs;
[] If the case against the accused is pending trial, the application under
oath of an interested party must be supported by:
i. certified true copy of the complaint or information; and
ii. a certification from the Clerk of Court concerned that the
criminal case is pending.
[] If the accused has jumped bail or has become a fugitive of
justice, the application under oath of an interested party must be supported by:
i. a certified true copy of the complaint or information;
ii. a certified true copy of the warrant or order of arrest; and
iii. a certification from the Clerk of Court concerned that the
warrant or order of arrest was returned unserved.
b. Against an alien whose presence is required either as a defendant,
respondent or a witness in a civil or labor case pending litigation, or any case
before an administrative agency;
c. Against any person motu proprio, or upon the request of the Head of a
Department of the Government, head of a constitutional body or commission; the
Chief Justice of the Supreme Court for the Judiciary; the Senate President or the
House Speaker for the legislature; when the adverse party is the Government
or any of its agencies or instrumentalities, or in the interest of national
security, public safety or public health (DOJ Department Circular No. 41).
*****An HDO issued by the DOJ shall be valid for 5 years from the date
of its issuance unless sooner terminated (Sec. 4, DOJ Circular No. 41).
6. GROUNDS FOR THE CANCELLATION of an HDO issued by the DOJ
a. When the validity of the HDO has already expired;
b. When the accused subject of the HDO has been allowed to leave the
country during the pendency of the case, or has been acquitted of the charge,
or the case in which the warrant/order of arrest has been recalled; or
c. When the civil or labor case or case before an administrative agency
of the government wherein the presence of the alien subject of the HDO/WLO
has been dismissed by the court or by appropriate government agency, or the
alien has been discharged as a witness therein, or the alien has been allowed
to leave the country (Sec. 5, DOJ Department Order No. 41).
d. When the HDO/WLO was issued by the Secretary of Justice either
motu proprio or upon request of government functionaries/ agencies, when the
adverse party is the Government or any of its agencies or instrumentalities, or
in the interest of national security, public safety or public health, may be
lifted or recalled anytime if the application is favorably indorsed by the
Government functionaries/ offices who requested the issuance of the

HDO/WLO (Sec. 5, DOJ Department Circular No. 41).
7. Instances for the ISSUANCE OF A WATCH LIST ORDER (WLO)
a. Against the accused, irrespective of nationality in criminal cases pending
trial before the RTC or before courts below the RTCs;
b. Against the respondent, irrespective of nationality in criminal cases
pending Preliminary Investigation, Petition for Review or Motion for
Reconsideration BEFORE the DOJ or any of its provincial or city prosecution
offices;
c. ****The Secretary of Justice may likewise issue a WLO against any
person, either motu proprio or upon request of any government agencies, including
commissions, task forces or similar entities created by the Office of the President,
pursuant to the “Anti- Trafficking of Persons Act of 2003” (RA 9208) and/ or
in connection with any investigation being conducted by it, or in the interest of
national security, public safety or public health (Sec. 2, DOJ Department
Order 41).
[] Period of Validity of a WLO: A WLO issued shall be valid for 60 days
unless sooner terminated or extended, for a non-extendible period of not
more than 60 days (Sec. 4, DOJ Dept. Order No. 41).
8. Permission to leave the country: ****Permission to leave the country should
be filed in the same court where the case is pending because they are in the best
position to judge the propriety and implication of the same (Santiago v. Vasquez,
G.R. No. 99289-90, January 27, 1993).
9. REMEDY against an HDO/ WLO: ****A WLO may be attacked by filing a
motion for cancellation or by getting an Allow Departure Order from the DOJ
or by filing a Motion to Lift Hold Departure Order.
[] Allow Departure Order (ADO): An ADO is a directive that allows the
traveler to leave the territorial jurisdiction of the Philippines. This is issued upon
application to the Commissioner of Immigration and the appropriate
government agency.
[] Period for the issuance of ADO—Any person subject of an HDO/ WLO
pursuant to Department Order No. 41, who intends, for some exceptional
reasons, to leave the country may, upon application under oath with the
Secretary of Justice, be issued an ADO upon submission of the following requirements:
a. Affidavit stating clearly the purpose, inclusive period of the intended
travel, and undertaking to immediately report to the DOJ upon return; and
b. Authority to travel or travel clearance from the court or appropriate
government office where the case upon which the issued HDO/ WLO was
based is pending or from the investigating prosecutor in charge of the subject
case.
[] Remedy of a person who is not the same person whose name appears
in the HDO/ WLO: ****Any person who is prevented from leaving the country
because his/ her name appears to be the same as the one that appears in the
HDO/ WLO may upon application under oath obtain a Certification to the
effect that said person is not the same person whose name appears in the issued
HDO/ WLO upon submission of the following requirements:
a. Affidavit of Denial;
b. Photocopy of the page of the passport bearing the personal details;
c. Latest clearance from the National Bureau of Investigation; and
d. Clearance from the court or appropriate government agency when
applicable.
BAIL IN EXTRADITION CASES****

1. Rules on bail in extradition cases:
a. While our extradition law does not provide for the grant of bail to an
extraditee, however, there is no provision prohibiting him or her from filing a
motion for bail, a right to due process under the constitution.
b. While extradition is not a criminal proceeding, it still entails a
deprivation of liberty on the part of the potential extraditee and furthermore, the
purpose of extradition is also the machinery of criminal law.
c. The Universal Declaration of Human Rights applies to deportation
cases, hence, there is no reason why it cannot be invoked in extradition cases.
d. The main purpose of arrest and temporary detention in extradition
cases is to ensure that the potential extraditee will not abscond.
e. Under the principle of PACTA SUNT SERVANDA, the Philippines
must honor the Extradition Treaty it entered into with other countries. Hence,
as long as the requirements are satisfactorily met, the extraditee must not
be deprived of his right to bail (Government of Hong Kong Special
Administrative Region v. Olalia, G.R. No. 153675, April 19, 2007).
****The required proof of evidence is “CLEAR AND CONVINCING
EVIDENCE” and not preponderance of evidence nor proof beyond
reasonable doubt. The BURDEN OF PROOF LIES WITH THE
EXTRADITEE (Government of Hong Kong Special Administrative Region v.
Olalia, G.R. No. 153675, April 19, 2007).
2. Rule regarding bail in DEPORTATION proceedings: It is available, however
bail in deportation proceedings is WHOLLY DISCRETIONARY.
[] Note that in an earlier case [US vs. Purugganan], the Court ruled that
there was NO BAIL in extradition cases because of the following: i) extradition is
sui generis—it is not a criminal proceeding; ii) unlike in criminal cases, there is no
conviction of the accused in extradition cases; iii) the basic premise of
presumption of innocence is not an issue in extradition cases. But the court said
that the concept of bail can come in if the accused is in custody as long as: i) the
person detained is not a flight risk; and ii) for special compelling humanitarian
reasons.
[] ******In Govt of HK vs. Olalia, the rule changed to the allowance of bail
in extradition cases because of the following: i) international law has given
importance to the individual—he is now a subject of international law,

whereas before, he was only its object; ii) to uphold human rights, even in
extradition cases; iii) as long as the two conditions are present: i) the person
detained is not a flight risk; and ii) there exists special compelling
humanitarian reasons.
———————————————————————————————
5.7. Rights of the accused [Rule 115]

The rule enumerates the rights of a person accused of an offense which are both
constitutional as well as statutory, save the right to appeal, which is purely statutory in character.
5.7.1. Rights of accused at the trial 174

(a) To be presumed innocent until the contrary is proved beyond reasonable doubt 174
(b) To be informed of the nature and cause of the accusation against him. 175
(d) To testify as a witness in his own behalf 175
(e) [Right against self-incrimination] 177
(f) To confront and cross-examine the witnesses against him at the trial. 178
(g) [Right to compulsory process] 181
(h) To have speedy, impartial and public trial. 183
On Public trial 183
(i) To appeal in all cases allowed and in the manner prescribed by law. 188
5.7.2. Rights of persons under custodial investigation 188
More on right to counsel 189
Extrajudicial confession 192
———————————————————————————————
5.7.1. Rights of accused at the trial

*Section 1. Rights of accused at the 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.
(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) [Right against self-incrimination] 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.
(g) [Right to compulsory process] 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. (1a)
j. Right to counsel
(a) To be presumed innocent until the contrary is proved beyond

reasonable doubt
1. GR: Accusation is not synonymous with guilt. The presumption of
innocence must be overcome by evidence of guilt beyond reasonable doubt.
The burden lies on the prosecution to overcome such presumption by
presenting the quantum of evidence required. Conviction should be based on
the strength of the prosecution and not on the weakness of the defense
(People v. Angus, G.R. No. 178778, August 3, 2010).
2. XPNs:
a. In cases of SELF-DEFENSE, the person invoking self defense is
presumed guilty. In this case, a reverse trial will be held.
[] A reverse trial happens if the accused admits the killing but
claims self-defense. He must first establish the elements of self-defense in
order to overturn the presumption that he was guilty of the offense.
[] In a case of rape, the court ordered the accused to present evidence
ahead of the prosecution. Is the court order correct? NO. ****It violated the
right of the accused to be presumed innocent and the right to due process.
In fact, it violated the order of the presentation of evidence. The accused has
the right not to take the witness stand (Albano, 2010, citing Alejandro v.
Pepito).
b. The legislature may enact that when certain facts have been proved,
they shall be prima facie evidence of the existence of guilt of the accused and
shift the burden of proof provided there be a rational connection between the
facts proved and the ultimate fact presumed so that the inference of the one from
proof of the other is not an unreasonable and arbitrary experience (People v.
Mingoa, G.R. No. L-5371, March 26, 1953).
3. REASONABLE DOUBT: ****The doubt engendered by an investigation
of the whole proof and an inability, after such investigation, to let the mind rest
easy upon the certainty of guilt. Absolute certainty is not demanded by law
to convict of any criminal charge but MORAL CERTAINTY is required as to
every proposition of proof requisite to constitute the offense (Sec. 2, Rule 133).
4. EQUIPOISE RULE: Where the evidence of the parties in a criminal case is
evenly balanced, the constitutional presumption of innocence should tilt in
favor of the accused who must be acquitted (People v. Erguiza, G.R. No.
171348, November26, 2008).
(B) TO BE INFORMED OF THE NATURE AND CAUSE OF THE

ACCUSATION AGAINST HIM.
1. Accused’s right to be informed: The right requires that the information should
state the facts and circumstances constituting the crime charged in terms
sufficient to enable a person of common understanding to know what offense
is being charged.
2. ****The right to be informed may not be waived. It is a basic constitutional
right of the accused to be informed of the nature and cause of accusation against
them.
3. A minor variance between the charges in the Information and what was
established and proven during trial, where the former is necessarily included in the
latter does not violate the right of the accused to be informed of the nature and
cause of the accusation against him.203
(C) TO BE PRESENT AND DEFEND IN PERSON AND BY

COUNSEL AT EVERY STAGE OF THE PROCEEDINGS, FROM
ARRAIGNMENT TO PROMULGATION OF THE JUDGMENT.
1. Instances when the presence of the accused is MANDATORY in criminal
proceedings
a. During arraignment (Sec. 1(b), Rule 116);
b. Promulgation of judgment except when the conviction is for a light
offense, in which case, it may be pronounced in the presence of his counsel or a
representative (Sec. 6, Rule 120); and
c. When ordered by the court for purposes of identification (Sec. 1, Rule
115);
****Such requirement has no application to the proceedings or to the
entry and promulgation of the judgments before the CA and SC. The
defendant need not be present during the hearing of the appeal (Sec. 9, Rule 124).
2. WAIVER of right to be present during the trial—Right to be present may be
waived by:
a. A waiver pursuant to the stipulation set forth in his bail;
b. 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; and
c. If the accused jumps bail, such shall be an automatic waiver of the
203
[] Q: Noque was convicted for the crime of selling and possessing methamphetamine
hydrochloride. On appeal, Noque claimed that his conviction violated his right to be informed of
the nature and cause of the accusations against him since the charges in the Information are for
selling and possessing methamphetamine hydrochloride but what was established and proven
was the sale and possession of ephedrine. Is the appellant’s right to be informed of the nature and
cause of accusation violated?
NO. ****The Information filed was for the crimes of illegal sale and illegal possession of
regulated drugs. Ephedrine has been classified as a regulated drug; it is classified as the raw material
of shabu. Under Secs. 4 and 5, Rule 120 of the Rules of Court, an offense charged is
NECESSARILY INCLUDED in the offense proved when the ESSENTIAL INGREDIENTS of
the former constitute or form part of those constituting the latter. At any rate, a MINOR
VARIANCE between the information and the evidence does NOT ALTER the nature of the
offense, nor does it determine or qualify the crime or penalty, so that even if a discrepancy
exists, this cannot be pleaded as a ground for acquittal (People v. Noque, G.R. No. 175319,
January 15, 2010).
right to be present on all subsequent trial dates until custody over him is
regained (Sec. 1(c), Rule 115).
*NB: The accused may be compelled to be present despite waiver for
purposes of identification, but if the accused manifests in open court that he is
indeed the accused, such shall also be considered a waiver thereof (???)
3. EFFECTS of waiver of the right to appear by the accused
a. It is also a waiver to present evidence;
b. Prosecution can present evidence despite the absence of the
accused; and
c. The court can decide even without accused’s evidence.
[] Bar 2006: As counsel of an accused charged with homicide, you are
convinced that he can be utilized as a State witness. What procedure will you
take? As counsel for the accused, I will advise my client to ask for a
REINVESTIGATION and convince the prosecutor for him to MOVE for
the DISCHARGE of my client as a State witness or the accused can apply as a
State witness with the Department of Justice pursuant to RA 6981, the Witness
Protection, Security and Benefit Act. The right to prosecute vests the prosecutor
with a wide range of discretion, including what and whom to charge.
4. Scenarios:****
a. If one is part of a police line up? It is in the nature of a GENERAL
inquiry. It will not trigger a right to counsel.
b. But if the investigation concentrates on one person who is considered as
a suspect, right to counsel begins—it’s now a SPECIFIC inquiry.
c. If one is asked to re-enact a crime: Yes, it triggers the right to counsel
since it’s in the nature of asking for admission of guilt.
d. Custodial investigation? YES, under Sec 2 RA 7438. Mere invitation in
connection with an offense one is suspected to have committed.
(D) TO TESTIFY AS A WITNESS IN HIS OWN BEHALF

(but subject to cross-examination on matters covered by direct
examination.204 His silence shall not in any manner prejudice him.)
1. Accused's refusal to testify:—-*GR: The silence of the accused should not be
used against him.
2. *XPNs:
a. When the prosecution has already established a prima facie case, the
accused must present proof to overturn the evidence; and
b. ****If the defense of the accused is alibi and he does not testify, the
204Raulo, accused of falsification of a public document, testified in his own behalf. On cross-examination,
he was asked to take dictation in his own writing for the purpose of comparison. He refused. May he be
compelled to take the dictation? Explain. Answer:
******Yes, since Raulo voluntarily testified in his own behalf, he is subject to cross-examination
on matters covered by direct examination. (Sec. 1(d) of Rule 115) Whenever a defendant testifying in his
own behalf, denies that a certain writing or signature is in his own hand, he may on cross-examination be
compelled to write in open court for the purpose of comparison. (Beltran vs. Samson, 53 Phil. 580, 574)
inference is that the alibi is not believable.
(E) [RIGHT AGAINST SELF-INCRIMINATION]

To be exempt from being compelled to be a witness against himself.
1. Scope of the right against self-incrimination
a. GR: The right covers only TESTIMONIAL COMPULSION and not
the compulsion to produce real and physical evidence using the body of the
accused (Schmerber v. California, 384 US 757).
b. ****XPNs: Immunity statutes such as:
i. Forfeiture of illegally obtained wealth (RA 1379)
ii. Bribery and graft cases (RA 749) (Herrera, 2007).
******The right against self-incrimination is available not only in criminal
cases but also in government proceedings, civil, and administrative
proceedings where there is a penal sanction involved.
2. PURPOSE of the right against self-incrimination: The privilege is intended to
prevent the State, with all its coercive powers, from extracting from the
suspect testimony that may convict him and to avoid a person subject to such
compulsion to perjure himself for his own protection (People v. Bersonia, G.R.
Nos. 1514284-85, February 5, 2004).
3. WAIVER of right of the accused against self-incrimination: ******It may be
waived by the failure of the accused to invoke the privilege after the
incriminating question is asked and before his answer.
4. RASI (right against self-incrimination) of an accused vs. an ordinary witness205
******
ACCUSED ORDINARY WITNESS
Broader right: can invoke it anytime Has to wait for questions before he can invoke it
Includes the right to refuse to sit as a witness Cannot refuse to sit as a witness
1. Accused: he can refuse to testify;206 he can refuse to be a witness; but
205
CAN A WITNESS REFUSE TO ANSWER? ******NO & YES.
1. NO: in a civil case. Can a witness for the prosecution be asked by the defense counsel if he has an
unpaid debt in favor of the accused? Yes. If witness refuses to answer, the court can order him to
answer—even if it will establish a liability, as Sec 3, Rule 132 provides, “although his answer may tend to
establish a claim against him”. Why? the nature of the liability is only civil, and no person can be jailed
for non-payment of debt (and poll tax), hence, the right against self-incrimination does not apply.
But if it will subject him to criminal penalty, yes, he may refuse [number 4 of Sec 3, Rule 132].
2. YES: if answer will tend to open him to criminal liability—because it will fall under his right
against self-incrimination; what is referred to is criminal penalty; hence, he cannot refuse if it will
open him only to administrative penalty, unless the latter involves a criminal penalty.
206
Q: X, the accused, was called by the prosecution as the first witness to testify for the government. X
refused to take the stand invoking his privilege against self- incrimination. On the other hand, the
prosecution contends that X may be compelled to take the witness stand and claim the privilege only
if he is given IMMUNITY from prosecution—he cannot refuse. NB: a

witness admitted into the witness protection program cannot refuse to testify
or give evidence or produce books, documents, records or writings necessary for
the prosecution of the offense or offenses for which he has been admitted on the
ground of the RASI [Sec. 14 RA 6981]207
2. Ordinary witness who is not an accused:
a. GR: he cannot refuse to sit on the witness stand when ordered by
the court; Sec 1, Rule 71 (refusal to be sworn as a witness; and refusal to answer as
a witness). Otherwise, he will be charged of DIRECT CONTEMPT (if it’s in the
presence of the court) or INDIRECT CONTEMPT (Sec 3: for refusal to obey a
subpoena duly-served). NB: ***to invoke his RASI, he has to wait for the
question first before he says no; he cannot give a blanket refusal to answer all
possible questions. But when he is asked a question that will incriminate him, he
can refuse.208
b. XPN: (he cannot refuse the subpoena for him to testify in court)
unless he lives more than 100 km away from the place of trial [VIATORY RIGHT of
witnesses: this applies only to civil cases, because in criminal cases, the accused has
the right to have compulsory process in his favor]
5. Situations covered by RASI: those equivalent to testimonial compulsion
a. Does the right against self-incrimination include the furnishing of a
signature specimen? YES. ****Writing209 is not a purely mechanical act for it
as each question, requiring an incriminatory answer is put to him. Can the court order X to testify?
No, the court cannot order X to testify because he is the accused and he is exempt from being
compelled to be a witness against himself (Sec. 1-E of Rule 115; Cabal vs. Kapunan, 6 SCRA 1059; Chavez
vs. Court of Appeals 24 SCRA 663). ******If he were an ordinary witness, not an accused, he could be ordered to
testify and he could claim the privilege against self-incrimination only as each question requiring an
incriminatory answer is put to him. (Badiong vs. Gonzales, 94 SCRA 906)
207
*NB on IMMUNITY STATUTES (IS). Section 17 of the Bill of Rights cannot be invoked
anymore because of the grant of immunity in exchange for one’s testimony; even if he may
incriminate himself, no harm may fall upon him anymore given his immunity. Two types of IS:
a. Transactional Immunity. Broader in scope in its protection: witness can no longer be prosecuted
for any crime whatsoever arising out of the act;
b. Use and Derivative-Use Immunity. Limited scope: witness is only assured that his
PARTICULAR testimony and the evidence derived from it will not be used against him in a subsequent
prosecution. But if there are other independent evidences, they may be used against him.
*In [Mapa v. SB]: Immunity statutes are not a bonanza from the government. Those given
the privilege pay the high price for it: the surrender of their previous right to be silent.
- Should be given liberal interpretation in favor of the accused
- The government has the right to solve crimes but it must do it rightly.
208 *If the witness is the accused, he may totally refuse to take the stand. A mere witness cannot altogether
refuse to take the stand. Before he refuses to answer, he must first wait for the incriminating question
before he can refuse [Bagadiong v. Gonzales 94 scra 906]
209 Maria was accused of libel. While Maria was on the witness stand, the prosecution asked her to write her
name and to sign on a piece of paper, apparently to prove that she authored the libelous material. Maria objected
as writing and signing her name would violate her right against self-incrimination. Was Maria’s objection proper?
(2013 BAR)
involves the application of intelligence and attention. If such person is asked

whether the writing in a document is his or not, and he says it is not, he is deemed to have
waived his right. On the other hand, if the accused simply refused to answer the
question inquiring about the handwriting, no waiver of the right took place
(Beltran v. Samson G.R. No. 32025, September 23, 1929).210 The idea under RASI
is not to produce evidence against oneself. NB: *****But where there is
independent evidence against the accused, the specimen signature is not covered
by RASI [Marcelo vs. SB, where the accused was caught in the act of opening
mails—in asking for his signature, he was not asked to produce an evidence
against him]
6. Situations not covered by RASI: non-testimonial in nature211
a. To submit oneself to physical examination RE pregnancy212 [Villaflor vs.
Sheriff Summers]
(A) No, she can be cross examined just like any other witness and her sample signature may be taken to verify
her alleged authorship of the libelous statements.
(B) No, her right against self-incrimination is waived as soon as she became a witness.
(C) No, this privilege may be invoked only by an ordinary witness and not by the accused when she opts to take
the witness stand.
(D) The objection was improper under all of A, B, and C.
(E) The objection was proper as the right to self-incrimination is a fundamental right that affects
liberty and is not waived simply because the accused is on the witness stand.
210 *Samson vs. Beltran: accused of forgery; no other evidence except a sample signature, hence, this is covered
by RASI—because it is equivalent to testimonial compulsion; writing one’s signature is not only a mechanical
act—it involves the use of the intellect. But if the signature is only confirmatory, it is not part of RASI.
211
Note that RASI applies to TESTIMONIAL COMPULSION; hence an accused can be required
to give a sample of his hair, blood, etc.; or he can be asked to wear clothes (to see if they fit; say gloves
found in the crime scene; *****Bar 1994: can he refuse to wear shorts? No, its not testimonial
compulsion, or expel morphine from his mouth: why? because they do not involve testimonial
compulsion.
******But he cannot be compelled to re-enact the crime: because it is almost saying, “this is
how I committed the crime”
212*Villaflor case: can a pregnant woman refuse to undergo physical examination for a crime of adultery,
invoking her RASI? NO. This does not involve RASI because if one is pregnant, the evidence is already
there—there is not testimonial compulsion involved.
b. Removal of clothes, getting blood213 samples; DNA testing; 214 paraffin

testing.215
c. When there is no more chance to be convicted, i.e., when the
crime/penalty has prescribed or it only leads to civil liability.
(f) To confront and cross-examine the witnesses against him at the trial.
1. Confrontation: The act of setting a witness face-to-face with the accused so
213 Q: Are the rights of the accused to be presumed innocent of the crime charged, to privacy, and against
incrimination violated by such compulsory testing? Explain.(2005 Bar Question) SUGGESTED ANSWER:
No. *****The court may compel the accused to submit himself to a blood test to determine
whether he has HIV under Sec. 17(a) of Republic Act No. 8054. His rights to be presumed innocent of the
crime charged, to privacy and against self-incrimination are not violated by such compulsory testing. In an
action in which the physical condition of a party is in controversy, the court may order the accused to submit to
a physical examination. The right against self-incrimination refers to compulsory testimonial compulsion
and does not include the body of the accused as evidence when it may be material (U.S. v. TanTeng, 23
Phil. 145 [1912]; Villaflor v. Summers, 41 Phil. 62 [1920]; Section 1, Rule 28, 1997 Rules of Civil Procedure).
Under Republic Act No. 8353, one may be charged with and found guilty of qualified rape if he
knew on or before the commission of the crime that he is afflicted with Human Immuno-Deficiency
Virus (HIV)/Acquired Immune Deficiency Syndrome (AIDS) or any other sexually transmissible disease and
the virus or disease is transmitted to the victim.
Under Section 17(a) of Republic Act No. 8504 the court may compel the accused to submit himself
to a blood test where blood samples would be extracted from his veins to determine whether he has HIV.
[] Q: If the result of such test shows that he is HIV positive, and the prosecution offers such result in
evidence to prove the qualifying circumstance under the information for qualified rape, should the court reject
such result on the ground that it is the fruit of a poisonous tree? Explain. (8%)(2005 Bar Question)
SUGGESTED ANSWER: ******The fruits of the poisonous tree doctrine applies only where the primary
source is shown to have been unlawfully obtained or was the result of an illegal act (People v. Alicando,
G.R. No. 117487, 251 SCRA 293 [1995]) Since the rights of the accused are not violated because the
compulsory testing is authorized by law, the result of the testing cannot be considered to be the fruit of a
poisonous tree and can be offered in evidence to prove the qualifying circumstance under the information
for qualified rape under Republic Act No. 8353.
214 Q: At the scene of a heinous crime, police recovered a man's shorts with blood stains and strands of
hair. Shortly afterwards, a warrant was issued and police arrested the suspect, AA. During his detention, a
medical technician extracted blood sample from his finger and cut a strand from his hair, despite AA’s
objections. During AA’s trial for rape with murder, the prosecution sought to introduce DNA
(deoxyribonucleic acid) evidence against AA, based on forensic laboratory matching of the materials found at
the crime scene and AA’s hair and blood samples. AA’s counsel objected, claiming that DNA evidence is
inadmissible because the materials taken from AA were in violation of his constitutional right against
self-incrimination as well as his right of privacy and personal integrity. Should the DNA evidence be admitted
or not? Reason. (5%) SUGGESTED ANSWER:
Yes. The DNA evidence should be admitted. It is not in violation of the constitutional right against
self- incrimination or his right of privacy and personal integrity. The right against self-incrimination is
applicable only to testimonial evidence. *****Extracting a blood sample and cutting a strand from the hair of
the accused are purely mechanical acts that do not involve his discretion nor require his intelligence.
(Tijing v. Court of Appeals, 354 SCRA 17 [2001]).
215 Q: At the homicide trial, the prosecution proposed that accused Joey undergo a series of paraffin tests to
determine whether he fired his service pistol at the time the victim, Lyn, was shot to death. The defense objected
on the ground that Joey's submission of his hands for paraffin test, or the Inspection of any part of his body for
that matter, would violate his right against self-incrimination. (1994 Bar Question)
A. How would you rule on the objection? The objection should be overruled. Submission to the
paraffin test is not a violation of the right against self-incrimination because it involves only an
examination of a part of the body. What violates the right against self-incrimination is testimonial compulsion.
B. Is the result of the paraffin test admissible in evidence? Answer: The result of the paraffin test is
admissible in evidence although it is not conclusive and is not the only evidence that should be considered.
that the latter may make any objection he has to the witness which must take
place in the court having jurisdiction to permit the privilege of cross-
examination. In addition, the accused is entitled to have compulsory process
issued to secure the attendance of witness and production of other evidence in his
behalf (Sec. 1(g), Rule 115), infra.
2. The main purpose of this right to confrontation is to secure the
opportunity of cross-examination and the secondary purpose is to enable the
judge to observe the demeanor of witness.
3. WAIVER of right to cross-examination: The right is a personal one which
may be waived expressly or impliedly by conduct amounting to a renunciation
of the right of cross-examination216. Thus, where a party has had the
opportunity to cross-examine a witness but failed to avail himself of it, he
necessarily forfeits the right to cross-examine and the testimony given on direct
examination of the witness will be received or allowed to remain in the record
(Equitable PCI Banking Corporation v. RCBC Capital Corporation, G.R. No.
182248, December 18, 2008; People v. Abatayo, G.R. No. 139456, July 7, 2004).
4. Does the right to confrontation cover witnesses who did not appear or was
not presented at the trial? NO. ****The right to confrontation applies only to
witnesses who appear before the court; the witness must be present for the
right to confrontation to attach. What is important is that the accused is given
the right to cross-examine the witness presented (People v. Honrada, G.R. Nos.
112178-79, April 21, 1995).
5. Rule regarding the testimony of a witness who dies or becomes unavailable:
If the other party had the opportunity to cross-examine the witness before he
died or became unavailable, the testimony may be used as evidence. However,
if the other party did not have the opportunity to cross-examine before the
death or unavailability of the witness, the testimony will have no probative value.
-XPN: See Footnote.217
217
BAR 2016: Q: Pedro, the principal witness in a criminal case, testified and completed his testimony
on direct examination in 2015. Due to several postponements by the accused, grounded on his
recurring illness, which were all granted by the judge, the cross-examination of Pedro was finally
set on October 15, 2016. Before the said date, Pedro died. The accused moved to expunge Pedro's
testimony on the ground that it violates his right of confrontation and the right to cross-examine the
witness. The prosecution opposed the motion and asked that Pedro's testimony on direct examination
be admitted as evidence. Is the motion meritorious? Explain. SUGGESTED ANSWER: No, the
motion to expunge Pedro’s testimony on the ground that it violates the accused’s right to confront the
witness is not meritorious. The Supreme Court has held that where the delay in cross-examining
the witness was imputable to the accused, he could not be heard to complain if the witness
becomes unavailable through no fault of the party presenting the witness and hence the
witness’s direct examination should not be stricken out. Here the delay in cross-examining Pedro
was imputable to the motions for postponement filed by the accused and the death of Pedro was not
the fault of the prosecution. (Jurist Review Center, Inc.)
(G) [RIGHT TO COMPULSORY PROCESS]

To have compulsory process issued to secure the attendance of witnesses
and production of other evidence in his behalf.
1. Right to compulsory process: The accused may move for the issuance of
subpoena ad testificandum or subpoena duces tecum in his behalf in order
a. to compel the attendance of witnesses and
b. the production of other evidence.
2. ****If a witness refuses to testify when he is required, the Court should
order the witness to give bail or order his arrest, if necessary. Failure to obey a
subpoena amounts to contempt of court.
(H) TO HAVE SPEEDY,218 IMPARTIAL AND PUBLIC TRIAL.

1. Facts to be considered to determine whether the right to speedy trial has
been violated
a. Length of the delay;
b. Reason for the delay;
c. The accused’s assertion or non-assertion of the right; and
d. Prejudice to the accused resulting from the delay (Ombudsman v.
Jurado, G.R. No. 154155, August 6, 2008; Tan v. People, G.R. No. 173637, April
21, 2009).
*****There is no violation of the right where the delay is imputable to the
accused. NB: violation of right to speedy trial bar a subsequent prosecution for
the same offense.219
218 Q: L was charged with illegal possession of shabu before the RTC. Although bail was allowable under his
indictment, he could not afford to post bail, and so he remained in detention at the City Jail. For various
reasons ranging from the promotion of the Presiding Judge, to the absence of the trial prosecutor, and
to the lack of notice to the City Jail Warden, the arraignment of L was postponed nineteen times over a
period of two years. Twice during that period, L’s counsel filed motions to dismiss, invoking the right of the
accused to a speedy trial. Both motions were denied by the RTC. Can L file a petition for mandamus?
Reason briefly. (2007 Bar Question) SUGGESTED ANSWER:
******Yes, L can file a petition for mandamus to enforce his constitutional right to a speedy trial
which was capriciously denied to him. There is absolutely no justification for postponing an arraignment of
the accused nineteen (19) times and over a period of two (2) years. The numerous, unreasonable
postponements of the arraignment demonstrate an abusive exercise of discretion (Lumanlaw v. Peralta, 482
SCRA 396 [2006]). Arraignment of an accused would not take thirty minutes of the precious time of the court,
as against the preventive imprisonment and deprivation of liberty of the accused just because he does
not have the means to post bail although the crime charged is bailable.
The right to a speedy trial is guaranteed by the Constitution to every citizen accused of a crime, more
so when he is under preventive imprisonment. L, in the given case, was merely invoking his constitutional
right when a motion to dismiss the case was twice filed by his counsel. The RTC is virtually enjoined by the
fundamental law to respect such right; hence a duty. Having refused or neglected to discharge the duty enjoined
by law whereas there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of
law, the remedy of mandamus may be availed of.
219 Q: Accused was charged with estafa and pleaded not guilty thereto. The prosecution repeatedly sought and
obtained postponements over the objection of the accused who invoked his right to speedy trial. At the
2. Duty of the trial court, public or private prosecutor, and the defense counsel to
observe time limits—*****Compliance with the following time limits in the
prosecution of the case against a detained accused is required:220
a. The case of the accused shall be raffled and referred to the trial court to
which it is assigned within 3 days from the filing of the information;
b. The court shall arraign the accused within 10 days from the date of the
raffle;
c. The court shall hold the pre-trial conference within 30 days after
arraignment or within 10 days if the accused is under preventive detention;
provided, however, that where the direct testimonies of the witnesses are to be
succeeding hearing, the prosecution again sought postponement on the ground that the complainant, its only
witness, was out of the country. If you were counsel of the accused, what course of action would you-take in
order that the case against him will be finally dismissed by the court? (1996 Bar Question) Answer:
I would object to any further postponement, insist on a trial and move for dismissal on the ground of
the right of the accused to a speedy trial. The dismissal in such a case bars a subsequent prosecution for
the same offense.
220 Q: At the Public Attorney's Office station in Taguig where you are assigned, your work requires you to act as
public defender at the local Regional Trial Court and to handle cases involving indigents.
a) In one criminal action for qualified theft where you are the defense attorney, you learned that the
woman accused has been in detention for six months, yet she has not been to a courtroom nor seen a
judge. What remedy would you undertake to address the situation and what forum would you use to invoke this
relief? (2013 BAR) A: Section 7, Rule 119 provides, if the public attorney assigned to defend a person charged
with a crime knows that the latter is preventively detained, either because he is charged with bailable crime
but has no means to post bail, or is charge with a non-bailable crime, or, is serving a term of
imprisonment in any penal institution, it shall be his duty to do the following: 1) Shall promptly undertake
to obtain the presence of the prisoner for trial or cause a notice to be served on the person having
custody of the prisoner requiring such person to so advise the prisoner of his right to demand trial.
2) Upon receipt of that notice, the custodian of the prisoner shall promptly advise the prisoner of the charge
and of his right to demand trial. If at anytime thereafter the prisoner informs his custodian that he demands
such trial, the latter shall cause notice to that effect to send promptly to the public attorney.
Moreover, Section 1 (e), Rule 116 provides, when the accused is under preventive detention, his
case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (3)
days from the filing of the information or complaint. The accused shall be arraigned within ten (10) days
from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after
arraignment.
On the other hand, if the accused is not under preventive detention, the arraignment shall be
held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused (Sec. 1
(g), Rule116).
Since the accused has not been brought for arraignment within the limit required in the
aforementioned Rule, the Information may be dismissed upon motion of the accused invoking his right to
speedy trial (Sec. 9, Rule 119) or to a speedy disposition of cases (Sec. 16, Art. III, 1987 Constitution).
b) In another case, also for qualified theft, the detained young domestic helper has been brought to
court five times in the last six months, but the prosecution has yet to commence the presentation of its
evidence. You find that the reason for this is the continued absence of the employer-complainant who is
working overseas. What remedy is appropriate and before which forum would you invoke this relief? (2013
BAR) A: I will file a motion to dismiss the information in the court where the case is pending on the ground
of denial of the accused right to speedy trial (Sec. 9, Rule 119; Tan v. People, G.R. No. 173637, April 21,
2009). *****This remedy can be invoked, at any time, before trial and if granted will result to an acquittal.
Since the accused has been brought to Court five times and in each instance it was postponed, it is clear that her
right to a Speedy Trial has been violated. Moreover, I may request the court to issue Subpoena Duces Tecum
and Ad Testificandum to the witness, so in case he disobeys same, he may be cited in contempt. I may also
file a motion to order the witness employer-complainant to post bail to secure his appearance in court
(Sec. 14, Rule 119). I can also move for provisional dismissal of the case (Sec. 8, Rule 117).
presented through judicial affidavits, the court shall give the prosecution not
more than 20 days from arraignment within which to prepare and submit their
judicial affidavits in time for the pre-trial conference;
d. After the pre-trial conference, the court shall set the trial of the case in
the pre-trial order not later than 30 days from the termination of the pre-
trial conference; and
e. The court shall terminate the regular trial within one hundred 180
days, or the trial by judicial affidavits within 60 days, reckoned from the time
trial begins, minus the excluded delays or postponements specified in Rule
119 of the Rules of Court and the Speedy Trial Act of 1998 (Sec. 8, A.M. No. 12-
11-2-SC).
3. ******Denial of right to speedy trial a ground for dismissal: The case
against the detained accused may be dismissed on ground of denial of the right to
speedy trial in the event of failure to observe the above time limits (Sec. 9,
A.M. No. 12-11-2-SC). Scenarios:****
a. In civil, admin and quasi-judicial cases, it is called Right to SPEEDY
DISPOSITION 221of cases. The violation of such right is equivalent to an
ACQUITTAL Coscolluela case 15 July 2013: Investigation by the ombudsman
occurred in 2001, but nothing happened until an Information was filed in 2009.
This is a clear violation of the right to speedy disposition of one’s case (yes, the
same was used in a criminal case where there is no trial yet—since right to speedy
trial cannot be invoked without trial having commenced yet). ****It’s a ground
for dismissal, not a mere quashing of the Information. The accused cannot be left
in a state of suspended animation.
221RIGHT TO SPEEDY DISPOSITION OF CASES v. RIGHT TO SPEEDY TRIAL [Esguerra]
*******Speedy trial in Section 14, Article III of the 1987 Philippine Constitution covers only the trial
phase of criminal cases, whereas Section 16 covers all phases of any judicial, quasi-judicial or
administrative proceedings. (Bernas, The 1987 Philippine Constitution, A Comprehensive Reviewer)
The constitutional right to a speedy disposition of cases is not limited to the accused in criminal
proceedings but extends to all parties in all cases, including civil and administrative cases, and in all
proceedings, including judicial and quasi-judicial hearings. While the concept of speedy disposition is relative or
flexible, such that a mere mathematical reckoning of the time involved is not sufficient, the right to the
speedy disposition of a case, like the right to speedy trial, is deemed violated when the proceedings are attended
by vexatious, capricious, and oppressive delays; or when unjustified postponements of the trial are asked
for and secured; or when without cause or justifiable motive a long period of time is allowed to elapse
without the party having his case tried. (People v. Sandiganbayan, G.R. No. 188165 & G.R. No. 189063, 11
December 2013, J. Bersamin)
* EG: INOCENTES v. PEOPLE, 7 July 2016, J. Peralta: The Office of the Ombudsman, for
its failure to resolve the criminal charges against Inocentes for seven (7) years, violated Inocentes'
constitutional right to due process and to a speedy disposition of the case against him, as well as
its own constitutional duty to act promptly on complaints filed before it. A person's right to a
speedy disposition of his case is guaranteed under Section 16, Article III of the Constitution. All
persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial,
or administrative bodies. *****This constitutional right is not limited to the accused in criminal
proceedings but extends to all parties in all cases, be it civil or administrative in nature, as well
as in all proceedings, either judicial or quasi-judicial. In this accord, any party to a case may
demand expeditious action of all officials who are tasked with the administration of justice.
b. AM 12-11-2 aims to decongest jails (1 May 2014)

i. Trial shall commence within 30 days from termination of pre-trial;
ii. Trial shall not exceed 180 days, but if with judicial affidavits, it’s 60
days; **XPN: continuance/postponements that are reasonable.
iii. If prosecutor fails to present evidence at least 3x, and there is still
none on the 4th, one may already invoke the right to speedy trial. ****Dismissal
then is not an ordinary dismissal, but equivalent to an acquittal, even if there is
express consent of the accused. Why? Double jeopardy sets in (because there is an
acquittal, not a mere dismissal).
****Another dismissal with consent of the accused that is
considered as acquittal is the grant of a demurrer to evidence.
4. Service of subpoena and notices through electronic mail or mobile
phones: ****Subpoena and notices may be served by the court to parties and
witnesses through electronic mails (e-mail) or through mobile phones either
through phone calls or through short messaging service (SMS) (Sec. 11, A.M.
No. 12-ll-2-SC).
5. Ways of ascertaining proper service of notice of hearing or subpoena: a.
The public prosecutor shall, during inquest or preliminary investigation,
require the complainant and his witnesses and, in proper cases, the police officers
who witnessed the commission of the crime subject of the investigation, to leave
with him their postal and e-mail addresses and mobile phone numbers for
use in summoning them when they need to appear at the hearings of the case.
b. ****When requesting the court to issue a subpoena or subpoena duces
tecum for their witnesses, the parties shall provide the court with the postal
and e-mail addresses and mobile phone numbers of such witnesses.
c. The service of notice of hearing or subpoena at the postal address, e-mail
address, or through mobile phone number shall be proved by any of the
following:
i. An officer's return or affidavit of service if done by personal
service, or by registry return card;
ii. Printouts of sent e-mail and the acknowledgment by the
recipient;
iii. Printouts of electronic messages transmitted through the court's
equipment or device and the Acknowledgment by the recipient; or
iv. Reports of phone calls made by the court.
d. The postal and e-mail addresses as well as the mobile phone
numbers supplied by the parties and their witnesses incident to court cases shall
be regarded as part of the judicial processes in those cases. ****Consequently,
any person who uses the same without proper authority or for purposes
other than sending of court notices shall be deemed guilty of INDIRECT
contempt and accordingly punished.
e. In cases of police officers whose testimonies are essential to the
prosecution of the case, service of the notice of hearing or subpoena on them
shall be made through the police unit responsible for the arrest and
prosecution of the accused, copy furnished the Personnel Department of the
Philippine National Police. It shall be the responsibility of the head of that
police unit to ensure the transmission of the notice or subpoena to the
addressee. ****Service upon the police unit shall be deemed service upon such
police officers.
f. The court shall cause the service of a copy of the order of provisional
dismissal upon the offended party in the manner provided above (Sec. 12, A.M.
No. 12-11-2-SC).
6. Establishment of Local Task Force Katarungan at Kalayaan—
a. The Court shall establish a Task Force Katarungan at Kalayaan in
appropriate places for the purpose of eliminating unnecessary detention. It
shall be chaired by an RTC Judge, with a Metropolitan or Municipal Trial
Court Judge as vice-chairman, both to be appointed for a term of two years
by the Executive Judge of the place. The city or provincial prosecutor of the
place or his representative and the local head of the Public Attorney's
Office or his representative shall be members of the Task Force. The
assistance of the local Bureau of Jail Management and Penology and the
Office of the Provincial Governor may be enlisted.
b. The Task Force shall track and keep a record of the progress of the
criminal cases of all detained persons within their jurisdiction and ensure that
such persons are accorded the rights and privileges provided by law, the rules, and
these guidelines.
c. ***Each court shall maintain a "DETAINEES NOTEBOOK," that
shall be supplied free by the Office of the Court Administrator and shall contain:
i. The full name of the accused;
ii. The docket number and title of the case
iii. The kind of crime charged;
iv. The date his detention began;
v. The date when his detention becomes equal to the minimum of the
imposable penalty;
vi. The date when his detention becomes equal to the maximum
imposable penalty;
vii. The date of arraignment;
viii. The date of pre-trial hearing or conference;
ix. The first day of trial;
x. The statutory last clay of trial if no excluded delays or
postponements arc incurred;
xi. Sufficient space for entering the progress of the hearing of the
case; and
xii. Such other data as may be essential to the monitoring of his or her
case. One (1) copy of the notebook shall be attached to the record of the
case and other copy kept by the jail warden which copy shall be brought with
the accused at the bearing.

xiii. The branch clerk of court shall update the two copies of the
notebook at every hearing by stating what action the court has taken in it, the next
scheduled hearing, and what action the court will further take on the case.
d. The Task Force shall have access to all case records and information
relating to detained persons and shall advise the judges hearing their cases,
when warranted, of the need for them to act on any incident or situation that
adversely affects the rights of detained persons or subject them to undue or harsh
treatment.
e. The Office of the Chief Justice shall exercise DIRECT
SUPERVISION over all such Task Forces (Sec. 15, A.M. No. 12-11-2-SC).
On Public trial
1. Q: Is the rule that the trial should be PUBLIC absolute? NO. The court may
bar the public in certain cases, such as when the evidence to be presented may
be offensive to decency or public morals; or in rape cases, where the purpose
of some persons in attending is merely to ogle at the parties.
The judge may, motu proprio, exclude the public from the courtroom if
the evidence to be produced during the trial is offensive to decency or public
morals. He may also, on motion of the accused, exclude the public from the
trial except court personnel and the counsel of the parties (Sec. 21, Rule 119).
2. Trial by publicity: ****The right of the accused to a fair trial is not
incompatible with free press. Pervasive publicity is not per se prejudicial to
the right to a fair trial. ****To warrant the finding of PREJUDICIAL PUBLICITY,
there must be allegations and proof that judges have been unduly
influenced, not simply that they might be due to the barrage of publicity
(People v. Teehankee, G.R. Nos. 111206-08, October 6, 1995).
(I) TO APPEAL IN ALL CASES ALLOWED AND IN THE MANNER

PRESCRIBED BY LAW.
1. Nature of the right to appeal: The right to appeal from a judgment of
conviction is fundamentally of statutory origin. It is not a matter of absolute
right independently of constitutional or statutory provision allowing such appeal.
2. Waiver of right to appeal
*GR: The right to appeal can be waived expressly or impliedly.
****XPN:Where the death penalty is imposed, such right cannot be
waived as the review of the judgment by the CA is AUTOMATIC AND
MANDATORY pursuant to Administrative Circular No. 20-2005 which is an
order directing regional trial courts to directly forward to the CA records of
criminal cases which are subject of automatic review222 or regular appeals.

————————————————
5.7.2. Rights of persons under custodial investigation

1. CUSTODIAL INVESTIGATION: It is the QUESTIONING initiated by
law enforcement authorities after a person is taken into custody or otherwise
deprived of his freedom of action in any significant manner. ****It is only after
the investigation ceases to be a general inquiry into an unsolved crime and
begins to focus on a particular suspect, the suspect is taken into custody, and
the police carries out a process of interrogations that lend itself to eliciting
incriminating statements that the rule begins to operate (Aquino v. Paiste,
G.R. No. 147782, June 25, 2008).
*****Sec. 2(f) of RA 7438 expanded the meaning of custodial investigation
to include the practice of issuing an “invitation” to a person who is
investigated in connection with an offense he is suspected to have committed,
without prejudice to the liability of the “inviting” officer for any violation of
law.
2. Period of the attachment of the rights of the accused in custodial
investigation: The rights begin to operate at once ****as soon as the
investigation ceases to be a general inquiry into an unsolved crime and
direction is then aimed upon a particular suspect who has been taken into
custody and to whom the police would then direct interrogatory question
which tend to elicit incriminating statements (People v. Jose Ting Lan Uy,
G.R. No. 157399, November 17, 2005). It includes the practice of issuing an
“invitation” to a person who is investigated in connection with an offense he is
suspected to have committed.
3. ******REQUISITES of a valid custodial investigation report—RA 7438
provides for the following requisites for a valid custodial investigation report:
a. The report shall be reduced to writing by the investigating officer;
b. If the person arrested or detained does not know how to read or
write, it shall be read and adequately explained to him by his counsel or by the
assisting counsel in the language or dialect known to such arrested or detained
person. This is to be done before the report is signed. ****If this procedure is
not done, the investigation report shall be NULL AND VOID and of no effect
whatsoever.
[] NB: Do not confuse custodial investigation with preliminary investigation.
The constitutional right to a competent and independent counsel exists only in
222If an accused who was sentenced to death escapes, is there still a legal necessity for the Supreme Court to
review the decision of conviction? (3%) SUGGESTED ANSWER:
Yes. There is still a legal necessity for the Supreme Court to review the decision of conviction
sentencing the accused to death, because he is entitled to an automatic review of the death sentence. (Secs.
3(e) and 10, Rule 122, Rules of Criminal Procedure; People vs. Espargas, 260 SCRA 539.)
custodial investigations.223
4. ******RIGHTS of persons under custodial investigation [custodial
rights224]. NB: ******These do not apply in administrative investigations.225
a. The person arrested, detained, invited or under custodial investigation
must be informed in a language known to and understood by him of the
223
[] Q: An affidavit was made by the accused without the presence of counsel during preliminary
investigation, admitting the commission of a crime. When presented during trial as evidence, the
accused objected claiming that there was a violation of his right to a competent and
independent counsel. Is the accused correct?
NO. ******The constitutional right to a competent and independent counsel exists only in
custodial interrogations, or in-custody interrogation of accused persons. A preliminary
investigation is an inquiry or a proceeding to determine whether there is sufficient ground to
engender a well-founded belief that a crime has been committed, and that the respondent is
probably guilty thereof and should be held for trial. Evidently, a person undergoing preliminary
investigation before the public prosecutor cannot be considered as being under custodial
investigation (People v. Ayson, G.R. No. L-28508-9, July 7, 1989).
[] But take note of this bar question, whose suggested answer (A) is the opposite: An accused's
custodial rights, e.g., right to counsel and right to remain silent, is available: (2012 BAR)
a. at preliminary investigation.
b. at police line-up for identification purposes.
c. at ultra-violet examination to determine presence of ultra violet powder on accused's hands.
d. at one-on-one confrontation with eyewitness.
[] LPS: People v. Ayson is still controlling as it was reiterated in Ladiana v. People, G.R. No.
144293, 4 December 2002.
224 Q: The barangay captain reported to the police that X was illegally keeping in his house in the barangay an
Armalite M16 rifle. On the strength of that information, the police conducted a search of the house of X
and indeed found said rifle. The police raiders seized the rifle and brought X to the police station. During the
investigation, he voluntarily signed a Sworn Statement that he was possessing said rifle without license
or authority to possess, and a Waiver of Right to Counsel. During the trial of X for illegal possession of
firearm, the prosecution submitted in evidence the rifle, Sworn Statement and Waiver of Right to
Counsel. Individually rule on the admissibility in evidence of the: Sworn Statement; and (2%) Waiver of Right
to Counsel of X. [1%] (1998 Bar Question) SUGGESTED ANSWER: xxx
The sworn statement is not admissible in evidence because it was taken without informing him
of his custodial rights and without the assistance of counsel which should be independent and competent and
preferably of the choice of the accused. (People vs. Januario, 267 SCRA 608.)
The waiver of his right to counsel is not admissible because it was made without the assistance
of counsel of his choice. {People vs. Gomez, 270 SCRA433.)
225 Q: Felipe Arenas, an employee of ABC Corp., appeared to be involved, in irregularities in the sale of the
corporation’s products. He was asked to account for some undeclared sales amounting to PI50.000.00 and, for
that purpose, he was asked to appear on a specified date at an administrative investigation, to be conducted in
accordance with the corporation’s collective bargaining agreement with the employee’s union. Two (2) days
before the scheduled investigation. Arenas gave to his superiors a signed handwritten note stating that he was
willing to settle the irregularities allegedly charged against him in the amount of PI50.000.00 subject to
conditions which the corporation may impose. On the day of the investigation, Arenas did not show up and has
failed to report for work since then. The corporation charged him with estafa. At the trial, the prosecution
offered in evidence the aforesaid handwritten note as Exhibit “A". The defense counsel objected to the
admission of the note on the ground that the same was executed without the accused having been informed of
his constitutional right to remain silent and to have counsel nor was he then assisted by counsel. If you were the
judge, would you admit the evidence? (1991 Bar Question) Answer:
Yes, the signed handwritten note of Arenas, given two days before the scheduled administrative
investigation, is admissible in evidence against him, because he was not under custodial investigation when
he executed the same. Hence, the constitutional right to remain silent and to have counsel was not
applicable to him. (People v. Ayson, 175 SCRA 216)
reason for the arrest and he must be shown the warrant of arrest, if any; every
other warnings, information or communication must be in a language known to
and understood by said person;
b. He must be warned226 that he has a RIGHT TO REMAIN
SILENT227 and that any statement he makes may be used as evidence
against him;228
c. He must be informed that he has the RIGHT TO BE ASSISTED at
all times229 and have the presence of an INDEPENDENT AND
COMPETENT lawyer, preferably of his own choice;
226 Q: During the custodial investigation of Jose Zafra, a murder suspect, he was informed of his right to be
assisted by counsel, among other constitutional rights. Zafra requested the assistance of Atty. Donato
Saldi who was present when Zafra gave his confession. When the case for murder was filed against him. Zafra
objected to the admission of his confession on the ground that he had inadequate assistance of counsel as
Atty. Saldi did not advise him to remain silent during the Investigation. Is the said objection tenable?
Explain your answer. (1990 Bar Question) Answer:
No, because Jose Zafra was already informed of his right to be assisted by counsel, among other
constitutional rights which include the right to remain silent. Atty. Saldi had no obligation to advise him
to remain silent during his investigation.
227 Q: The mutilated cadaver of a woman was discovered near a creek. Due to witnesses attesting that he was the
last person seen with the woman when she was still alive, Carlito was arrested within five hours after the
discovery of the cadaver and brought to the police station. The crime laboratory determined that the woman had
been raped. While in police custody, Carlito broke down in the presence of an assisting counsel and
orally confessed to the investigator that he had raped and killed the woman, detailing the acts he had
performed up to his dumping of the body near the creek. He was genuinely remorseful. During the trial, the
State presented the investigator to testify on the oral confession of Carlito. Is the oral confession
admissible as evidence, of guilt? (4%) (2008 Bar Question) SUGGESTED ANSWER:
******No, the oral confession is not admissible as evidence of guilt of Carlito because he was
already under arrest and in police custody when he made the extrajudicial confession but the mandates of
Rep. Act No. 7438, particularly Sections 2, par. (d), have not been complied with. Noncompliance with said
par. (d) of the law expressly renders the extrajudicial confession inadmissible as evidence in any proceeding. He
was not informed of his right to be warned (sic) and he was not informed of the Miranda right particularly
the right to remain silent. Additionally, it does not appear that counsel present is his counsel of his choice.
228 Q: Acting on a tip by an informant, police officers stopped a car being driven by D and ordered him to open
the trunk. The officers found a bag containing several kilos of cocaine. They seized the car and the cocaine
as evidence and placed D under arrest. Without advising him of his right to remain silent and to have
the assistance of an attorney, they questioned him regarding the cocaine. In reply, D said, “I don’t know
anything about it. It isn’t even my car.” D was charged with illegal possession of cocaine, a prohibited
drug. Upon motion of D, the court suppressed the use of cocaine as evidence and dismissed the charges
against him. D commenced proceedings against the police for the recovery of his car. In his direct examination,
D testified that he owned the car but had registered it in the name of S friend for convenience. On cross-
examination, the attorney representing the police asked,” After your arrest, did you not tell the arresting officers
that it wasn't your car?” If you were D’s attorney, would you object to the question? Why? (5%)
SUGGESTED ANSWER: Yes, because his admission made when he was questioned after he
was placed under arrest was in violation of his constitutional right to be informed of his right to remain
silent and to have competent and independent counsel of his own choice. Hence, it is inadmissible in evidence.
[Constitution, Art. Ill, sec. 12; R.A. 7438 (1992), sec. 2; People v. Mahinay, 302 SCRA 455].
ALTERNATIVE ANSWER: Yes, because the question did not lay the predicate to justify the cross-
examination question.
229 [] Q: Is the statement signed by the accused admissible if during the investigation, the assisting lawyer
leaves, or comes and goes? NO. *****It is inadmissible because the lawyer should assist his client from the
time the confessant answers the first question asked by the investigating officer until the signing of the
extrajudicial confession (People v. Morial, G.R. No. 129295, August 15, 2001). The right to counsel covers the
period beginning from custodial investigation until rendition of judgment and even on appeal (People v.
Serzo, Jr., G.R. No. 118435, June 20, 1997).
d. He must be informed that if he has no lawyer or cannot afford the

services of a lawyer, one will be provided for him; and that a lawyer may also
be engaged by any person in his behalf, or may be appointed by the court
upon petition of the person arrested or one acting in his behalf;
e. That whether or not the person arrested has a lawyer, he must be
informed that no custodial investigation in any form shall be conducted
except in the presence of his counsel or after a valid waiver has been made;
f. The person arrested must be informed that, at any time, he has the
right to communicate or confer by the most expedient means - telephone,
radio, letter or messenger - with his lawyer (either retained or appointed), any
member of his immediate family, or any medical doctor, priest or minister
chosen by him or by any one from his immediate family or by his counsel, or be
visited by/confer with duly accredited national or international non-
government organization. It shall be the responsibility of the officer to ensure
that this is accomplished;
g. He must be informed that he has the right to waive any of said rights
provided it is made voluntarily, knowingly and intelligently and ensure that
he understood the same;
h. In addition, if the person arrested waives his right to a lawyer, he must
be informed that it must be done in writing AND in the presence of
counsel, otherwise, he must be warned that the waiver is void even if he insist on
his waiver and chooses to speak;
i. That the person arrested must be informed that he may indicate in any
manner at any time or stage of the process that he does not wish to be
questioned with warning that once he makes such indication, the police may not
interrogate him if the same had not yet commenced, or the interrogation must
cease if it has already begun;
j. The person arrested must be informed that his initial waiver of his right
to remain silent, the right to counsel or any of his rights does not bar him from
invoking it at any time during the process, regardless of whether he may have
answered some questions or volunteered some statements;
k. He must also be informed that any statement or evidence, as the case
may be, obtained in violation of any of the foregoing, whether inculpatory or
exculpatory, in whole or in part, shall be INADMISSIBLE in evidence (People
v. Mahinay, G.R. No. 122485, February 1, 1999).
More on right to counsel

1. IMPORTANCE OF THE RIGHT TO COUNSEL in custodial
investigation: The importance of the right to counsel is so VITAL that under
existing law, ****“in the absence of any lawyer, no custodial investigation shall
be conducted and the suspected person can only be detained by the
investigating officer in accordance with the provisions of Art. 125 of the RPC
(Sec. 3(c), RA 7438). The purpose of providing counsel to a person under
custodial investigation is to curb the uncivilized practice of extracting a

confession (People v. Duenas, Jr., G.R. No. 151286, March 31, 2004).
2. ******Distinction between the right to counsel during trial and right to
counsel during custodial investigation
a. Right to counsel during trial means the right of the accused to an
effective counsel. Counsel is not to prevent the accused from confessing but to
defend the accused.
b. On the other hand, right to counsel during custodial investigation
requires the presence of competent and independent counsel who is
preferably the choice of the accused. The reason for such right is that in custodial
investigation, there is a danger that confessions can be exacted against the
will of the accused since it is not done in public.
3. Waiver of right to counsel during trial: ****It can be waived when the accused
voluntarily submits himself to the jurisdiction of the court and proceeds with
his defense. The accused may defend himself in person only if the court is
convinced that he can properly protect his rights even without the assistance of counsel.
****The defendant cannot raise the question of his right to have an attorney
for the first time on appeal.
*****This right may be waived but to insure that the waiver is voluntary
and intelligent, the waiver must be in writing and in the presence of the
counsel of the accused (People v. Del Castillo, G.R. No. 153254, September 30,
2004). The right to a competent and independent counsel is one of the rights of
the accused guaranteed under Sec. 12(1) of Art. III of the Philippine Constitution.
4. Accused to defend himself without the aid of a counsel: Only when it
sufficiently appears that he can properly protect his right without the assistance
of counsel (Sec. 1(c), Rule 115).
Extrajudicial confession230
[] ******REQUISITES for the validity of an extrajudicial confession made by
a person arrested, detained or under custodial investigation—For an extrajudicial
confession to be valid the following requisites must concur:
1. It shall be in writing and signed by the person arrested, detained or under
custodial investigation;
2. It must be signed in the presence of his counsel or in the latter’s absence, upon a
230Q: What are the requirements in order that an admission of guilt of an accused during a custodial
investigation be admitted in evidence? 2.5% (2006 Bar Question) SUGGESTED ANSWER:
******An admission of guilt during a custodial investigation is a confession. To be admissible in
evidence, the requirements are:
a. the confession must be voluntary;
b. the confession must be made with the assistance of competent and independent counsel;
c. the confession must be express
d. the confession must be in writing (People v. Principe, 381SCRA642[2002]).
valid waiver (must be written231) and;

3. In the presence of any of the parents, elder brothers and sisters, his
spouse, the municipal mayor, the municipal judge, district school
supervisor, or priest or minister of the gospel as chosen by him (Sec. 2(d), RA
7438).
MIRANDA RIGHTS (MR):

1. MR:232 applicable only when the person is undergoing custodial investigation
(CI). When is a person considered undergoing CI? SC gave a broad standard:
Miranda Rights become operative when the line of questioning has ceased
to be a general inquiry but shifts to the person as a SUSPECT (to be
determined based on the circumstances of each case).
2. Matters that are admissible in evidence:
a. identification by a witness in a police station because at that moment,
the person is not yet undergoing CI, hence, MR are not yet operative.
b. confessions given to a mayor (who is deemed a LEO); the person
himself sought the mayor in a private meeting where he spoke as to a
confidant, not as to a LEO; hence the confession does not violate his
constitutional rights; Sec 12, Art III of the Constitution does not prevent
anyone from freely and voluntarily telling the truth [PP v. Andan]
c. confessions to media men; not made with undue influence; media
men not acting under police authority; they asked permission before
interrogating him;
d. videotaped confessions; but SC counseled the judge to be careful
because of the INHERENT DANGER of using TV as a medium to admit
231
[] Bar 2004: Two suspects during police investigation orally waived their right to remain silent and
to counsel. They freely answered under oath the questions asked by the police desk officer. They later
signed their sworn statements before the police captain who is also a lawyer. They both
admitted their guilt. In due course, proper charges were filed by the City Prosecutor against both
arrestees before the MM RTC. May the written statements signed and sworn by them be admitted by
the trial court as evidence for the prosecution?
NO. It will not be admitted in evidence because they were not assisted by counsel.
****Even if the police captain before whom they signed the statements was a lawyer, he cannot
be considered as an INDEPENDENT counsel. Waiver of the right to a lawyer must be done in
writing and in the presence of an independent and competent counsel.
232 X was arrested for the alleged murder of a 6-year Old lad. He was read his Miranda rights immediately
upon being apprehended. In the course of his detention, X was subjected to three hours of non-stop
interrogation. He remained quiet until, on the 3rd hour, he answered "yes" to the question of whether
"he prayed for forgiveness for shooting down the boy." The trial court interpreting X's answer as an
admission of guilt, convicted him. On appeal, X's counsel faulted the trial court in its interpretation of his
client's answer, arguing that X invoked his Miranda rights when he remained quiet for the first two hours
of questioning. Rule on the assignment of error. (3%) (2010 Bar Question) SUGGESTED ANSWER:
The assignment of error invoked by X's counsel is impressed with merit since there has been no
express waiver of X's Miranda rights. In order to have a valid waiver of the Miranda rights, the same must
be in writing and made in the presence of his counsel. The uncounseled extrajudicial confession of X
being without a valid waiver of his Miranda rights, is inadmissible, as well as any information derived therefrom.
guilt; extreme caution; police may connive with unscrupulous media

practitioners; may attempt to legitimize a coerced extrajudicial confession
and place it beyond the exclusionary rule; scrutinize thoroughly [PP v. Endino]
3. Matters that are inadmissible in evidence:
a. identification by a witness during CI without counsel.
b. accused was forced to sign list of drugs seized without assistance of
counsel:233 It is settled that the signature of an accused in the receipt of property
seized is inadmissible in evidence if it was obtained without the assistance of
counsel.234
———————————————————————————————
233 Q: Policemen brought Lorenzo to the Philippine General Hospital (PGH) and requested one of its
surgeons to immediately perform surgery on him to retrieve a packet of 10 grams of shabu which they
alleged was swallowed by Lorenzo. Suppose the PGH agreed to, and did perform the surgery, is the package of
shabu admissible in evidence? Explain. (3%) (2010 Bar Question) SUGGESTED ANSWER:
No, the package of shabu extracted from the body of Lorenzo is not admissible in evidence
because it was obtained through surgery which connotes forcible invasion into the body of Lorenzo
without his consent and absent due process. The act of the policemen and the PGH surgeon involved,
violate the fundamental rights of Lorenzo, the suspect.
SUGGESTED ANSWER: Yes, it is admissible in evidence because the constitutional right against self-
incrimination is addressed only to extracting admission of guilt from the lips of the suspect where otherwise no
incriminating evidence exists. In the past, the Supreme Court has already declared many invasive and involuntary
procedures (i.e. examination of women's genitalia, expulsion of morphine from one's mouth, DNA testing) as
constitutionally sound (See Agustin v. Court o/Appeals, G.R. No. 162571, June 15, 2005). [TOM: the reasoning
is good but it refers to the right against self-incrimination, not this topic]
234 *****The signature of the accused on such a receipt is a declaration against his interest and a tacit
admission of the crime charged, i.e., it’s in the nature of a confession, hence, the constitutional safeguard
must be observed. Nevertheless, the same only renders inadmissible the receipt itself. As in the case of PP
vs. Endaya 2014: x x x the evidentiary value of the “Receipt of Property Seized” in the present circumstances is
irrelevant in light of the ample evidence proving [appellant’s] guilt beyond reasonable doubt…. the prosecution
was able to prove that a valid buy-bust operation was conducted to entrap [appellant].
5.8. Arraignment and plea [Rule 116]
5.8.1. Arraignment and plea, how made 196

5.8.2. When should plea of not guilty be entered 196
5.8.3. When may accused enter a plea of guilty to a lesser offense [Sec 2] 199
5.8.4. Accused pleads guilty to capital offense, what the court should do 201
5.8.5. Improvident plea 202
5.8.6. Grounds for suspension of arraignment 204
———————————————————————————————
5.8.1. Arraignment and plea, how made

1. It is the formal mode of implementing the constitutional right of the
accused to be informed of the NATURE AND CAUSE of the accusation
against him (People v. Pangilinan, G.R. No. 171020, March 14, 2007).
Arraignment is the proceeding in a criminal case, whose object is to fix the
IDENTITY of the accused, to INFORM him of the charge and to give him
an OPPORTUNITY TO PLEAD, or to obtain from the accused his answer,
in other words, his plea to the information.
*****Relevance of knowing if there is a valid plea: it is one of the elements
of double jeopardy (DJ); if there is no valid plea, DJ will not set in.
2. Options of the accused before arraignment******
a. Question the validity of his arrest: the legality of the warrant of arrest,
lack of Preliminary Investigation (PI) or irregularities in the PI [Sec 26, R114]
b. File a motion for bill of particulars to help him plead property and
prepare for trial [vs. Civil: to enable him to prepare a responsive pleading];
c. Motion to suspend arraignment [Sec 11, R116]: i) accused is suffering
from an unsound mental condition; ii) existence of a prejudicial question; iii)
petition for review of the prosecutor’s resolution is pending at the DOJ or Office
of the President (but suspension here shall not exceed 60 days from filing of the
petition with the reviewing office). ****There is a fourth reason which is not in
this section, but is found under Sec 1, R117 which is a Motion to Quash (MTQ).
MTQ is equivalent to a motion to dismiss—it’s an omnibus motion by analogy
because it attacks a pleading (this time an Information), hence, all your grounds
must be raised, otherwise, they are deemed waived, with few exceptions. [NB: In a
civil case, the omnibus motion rule does not apply if one does not file a MTD—
any of the MTD grounds may be pleaded as an affirmative defense in the Answer,
and in the discretion of the court, a preliminary hearing may be had as if a MTD
had been filed (Sec 6, Rule 16). On the other hand, in a criminal case, a MTQ is
broader in scope, because all the grounds, except a few, are deemed waived even if
one does not file a MTQ, not only when one failed to allege them in the MTQ
(Sec 9, Rule 117)].

3. Rules on arraignment
a. Trial in absentia may be conducted only after valid arraignment.
b. Accused must personally appear during arraignment and enter his plea
(counsel cannot enter plea for accused)
c. Accused is presumed to have been validly arraigned in the absence of
proof to the contrary.
d. GR: Judgment is void if accused has not been validly arraigned.
*XPN: If accused went into trial without being arraigned,
subsequent arraignment will cure the error provided that the accused was able
to present evidence and cross examine the witnesses of the prosecution during
trial.
[] iow—GR:Arraignment must be made before start of the trial or
before the prosecution presents its case.
*XPN: Arraignment which was made after the prosecution rested
its case was considered a non-prejudicial error under the following: i. Counsel
of the accused failed to object lack of arraignment during trial; ii. Counsel of the
accused had full opportunity to cross-examine witnesses (People of the
Philippines v. Atienza, G.R. No. L-3001, June 17, 1950; People of the Philippines
v. Cabale, G.R. Nos. 73249-50, May 8, 1990).
****The purpose of arraignment is, thus, to apprise the accused of the
possible loss of freedom, even of his life, depending on the nature of the
crime imputed to him, or at the very least to inform him of why the
prosecuting arm of the State is mobilized against him (Borja v. Mendoza, G.R.
No. L-45667, June 20, 1977).
3. Procedure of arraignment
a. It must be in open court where the complaint or information has
been filed or assigned for trial;
b. By the judge or clerk of court;
c. By furnishing the accused with a copy of the complaint or information;
d. Reading it in a language or dialect known to the accused(People v.
Albert G.R. No. 114001 December 11, 1995);
e. Asking accused whether he pleads guilty or not guilty (Sec.1(a), Rule 116);
f. Both arraignment and plea shall be made of record but failure to enter of
record shall not affect the validity of the proceedings (Sec. 1(b), Rule 116).
****The accused must be arraigned before the court where the complaint or
information was filed or assigned for trial (Sec. 1(a), Rule 116).
4. Period of arraignment
******GR: Arraignment shall be made within 30 days from the date the
court acquires jurisdiction over the person of the accused (Sec. 1(g), Rule 116).
*XPNs:
a. When an accused is under preventive detention, his case should be
raffled within 3 days from filing and accused shall be arraigned within 10235
days from receipt by the judge of the records of the case (RA 8493 Speedy Trial
Act).
b. Where the complainant is about to depart from the Philippines with no
definite date of return, the accused should be arraigned without delay.
c. Cases under the Dangerous Drugs Act.
[] As to trial:
a. Cases under RA 7610 (Anti-Child Abuse Act), the trial shall be
commenced within 3 days from arraignment.
b. Cases under SC AO 104-96 i.e. heinous crimes, violations of the
Intellectual Property Rights law, these cases must be tried continuously until
terminated within 60 days from commencement of the trial and to be decided within 30 days
from the submission of the case.
5. Presence of the accused during arraignment: The accused must be present at
the arraignment and personally enter his plea (Section 1(b), Rule 116): Both
arraignment and plea shall be made in record but failure to do so shall not
affect the validity of the proceedings (Sec. 1(b), Rule 116).
6. Presence of the offended party during arraignment: The private offended
party shall be required to appear in the arraignment for the following purposes:
a. Plea bargaining;
b. Determination of civil liability; and
c. Other matters requiring his presence (Sec. 1(f), Rule 116).
****In case the offended party fails to appear despite due notice, the
court may allow the accused to enter a plea of guilty to a lesser offense which
is necessarily included in the offense charged with the conformity of the trial
prosecutor alone (Section 1(f), Rule 116).
6. Is there right to counsel de officio? NO. While the right to be represented by
counsel is immutable, his option to secure the services of counsel de parte,
however, is not. The court may restrict the accused’s option to retain a
counsel de parte if the accused insists on an attorney he cannot afford, or
chooses a counsel who is not a member of the bar, or when the attorney
declines to represent the accused for a valid reason, such as conflict of
interests (People v. Servo, G.R. No. 119217, January 19, 2000).
[] Persons allowed to be appointed as counsel de officio
a. Members of the bar with good standing;
b. Has the ability, experience and competence to defend the accused; and
c. In localities where such members of the bar are not available, the
court may appoint any person who is a resident of such province with good
repute for probity and ability to defend the accused (Sec. 7, Rule 116).
****Whenever a counsel de officio is appointed by the court, he shall be
The case of R, who is under detention, was raffled to the RTC on March 1. His arraignment should be set
235
not later than: (2012 BAR) a. March4; b. March16; c. March 30; d. March11.
given reasonable time to consult with the accused as to his plea before
proceeding with arraignment (Sec. 8, Rule 116).
[] Duties of a counsel de officio when the accused is imprisoned:
a. Promptly undertake to obtain the presence of the prisoner for trial, or
cause a notice to be served on the person having custody of the prisoner
requiring such person to so advise the prisoner of his right to demand trial.
b. Upon receipt of the notice, the person having custody of the prisoner
shall promptly advise the prisoner of the charge and of his right to demand trial.
If at any time thereafter the prisoner informs his custodian that he demands such
trial, the latter shall cause notice to that effect to be sent promptly to the public
attorney.
c. Upon receipt of such notice, the public attorney shall promptly seek to
obtain the presence of the prisoner for trial. NB: Public Attorneys referred to in
this section are those attorneys of the Public Attorney’s Office of the Department
of Justice who are assisting accused who are not financially capable to have a
counsel of their own. These public attorneys enter their appearance in behalf of
the accused upon his request or that of his relative or upon being appointed as
counsel de officio by the court.
d. When the person having custody of the prisoner receives from the
attorney a properly supported request for the availability of the prisoner for
purposes of the trial, the prisoner shall be made available accordingly (Sec. 7, Rule
119).
7. NB: the accused has the right to avail of discovery measures.236
5.8.2. When should plea of not guilty be entered

1. ******When plea of NOT GUILTY is entered: (PRACEI)
a. When the accused so pleaded;
b. When he refuses to plead (Sec. 1(c));
c. Where in admitting the act charged he sets up matters of defense or
with lawful justification; ****Hence, if the accused presents exculpatory
evidence, his plea of guilty is deemed withdrawn.
236Q: TRUE or FALSE. The accused in a criminal case has the right to avail of the various modes of
discovery. (2009 Bar Question) SUGGESTED ANSWER:
TRUE. *****The accused has the right to move for the production or inspection of material
evidence in the possession of the prosecution. It authorizes the defense to inspect, copy or photograph
any evidence of the prosecution in its possession after obtaining permission from the court (Rule 116, Sec. 10;
Webb v. De Leon, 247 SCRA 652 [1995]).
d. When he enters a conditional237 plea238 of guilty (Sec. 1(c));

e. Where after a plea of guilty but presents exculpatory circumstances, his
plea shall be deemed withdrawn and a plea of not guilty shall be entered for
him (Sec. 1(d));
f. When the plea is indefinite or ambiguous.
2. May the accused enter a plea of GUILTY TO A LOWER offense? YES. cf.
next thought unit.
3. PLEA OF GUILTY: A judicial confession of guilt (People v. Comendador,
G.R. No. L-38000, September 19, 1980). It is an unconditional plea of guilt
which admits of the crime and all the attendant circumstances alleged in the
information including the allegations of conspiracy and warrants judgment of
conviction without need of further evidence.
[] Effect of a plea of guilty
a. GR: A plea of guilty admits the truth of all material facts alleged in the
information, including all the aggravating circumstance mentioned therein (People
v. Koloh Pohong, G.R. No. L-32332, August 15, 1973).
b. XPNs:
i. Where the plea of guilt was COMPELLED by violence or
intimidation;
ii. When the accused did NOT FULLY understand the meaning
and consequences of his plea;
iii. Where the information is INSUFFICIENT to sustain
conviction of the offense charged;
iv. Where the information does NOT CHARGE an offense, any
conviction thereunder being void;
v. Where the court has NO JURISDICTION.
c. ****XPN to the XPN: If what the accused would prove is an exempting
circumstance, it would amount to a withdrawal of his plea of not guilty.
237
[] Bar 1996: Fredo was charged with murder attended by treachery and evident premeditation.
During arraignment, Fredo, assisted by counsel, pleaded guilty with qualification “hindi ko
sinadya patayin”. His counsel assured the court that he fully apprised Fredo of the information, the
nature of the charge, and the consequences of his plea. Fredo even waived the prosecution’s
presentation of evidence against him. The court convicted him of murder. Was the plea of guilty
entered valid?
NO. The plea of guilty by Fredo with the qualification “Hindi ko sinadya patayin” was a
conditional plea of guilty and hence a plea of not guilty should be entered for him (Sec. 1(c) of
Rule 116). *****Also, when the accused pleads guilty to a capital offense, the court shall conduct a
searching inquiry into the voluntariness and full comprehension of the consequences of his plea.
The court should not rely on the assurance of the counsel of the accused for this purpose (Sec. 3,
Rule 116).
238
[] In PP vs. Magat, 31 May 2000, the accused pleaded guilty but agreed to 10 years of
imprisonment only (rape of his own child; 3 counts). ****Can this be revived without falling into
double jeopardy?
YES, because the plea was not valid. It should have been “not guilty” and there should
have been a trial.
4. For non-capital offenses, the reception of evidence is merely discretionary on the

part of the court (Sec. 4, Rule 116). If the information or complaint is sufficient
for the judge to render judgment on a non-capital offense, he may do so. But if
the case involves a capital offense, the reception of evidence to prove the guilt and degree
of culpability of the accused is mandatory in which case, the accused may present evidence
in his behalf and the court shall conduct a searching inquiry into the voluntariness and
full comprehension of the consequences of his plea (Sec. 3, Rule 116).
5.8.3. When may accused enter a plea of guilty to a lesser offense [Sec 2]
1. An accused may enter a <plea of guilty to a lesser offense> provided that there
is consent of the offended party and prosecutor to the plea of guilty to a lesser offense
which is necessarily included in the offense charged.
2. *****Effect of plea of guilty without consent of offended party and
prosecutor: If accused was convicted, the accused’s subsequent conviction of the
crime charged would not place him in double jeopardy (Sec. 7(c), Rule 117).
3. Details: May the accused enter a plea of GUILTY TO A LOWER offense?
YES.****
a. During arraignment
i. If the offended party is present, the latter must consent with the
prosecutor to the plea; and
ii. That the lesser offense is necessarily included239 in the offense
charged. NB: one cannot plea guilty for attempted homicide in a case for homicide
because the latter involves the death of the victim, while the former does not.240
b. After arraignment but before trial provided the following requisites are
present:
i. The plea of guilty is withdrawn;
ii. The plea of not guilty and the withdrawal of the previous guilty
plea shall be made before trial;
239
[] Bar 2002: D was charged with theft of an article worth Php15,000. Upon being arraigned he
pleaded not guilty to the offense charged. Thereafter, before trial commenced, he asked the court to
allow him to change his plea of not guilty to a plea of guilty but only to estafa involving Php
5,000. Can the court allow D to change his plea? Why?
NO. ****A plea of guilty to a lesser offense may be allowed if the lesser offense is
necessarily included in the offense charged (Sec. 2, Rule 116). Estafa involving Php 5,000 is not
necessarily included in theft of an article worth Php 15,000.
240
[] Q: Luis was charged with homicide. Upon arraignment, however, the parties, with the
acquiescence of the Public Prosecutor and the consent of the offended party, entered into plea
bargaining where it was agreed that the accused would plead guilty to the lesser offense of
attempted homicide instead of consummated homicide as originally charged in the information.
Consequently, Judge Berde found Luis guilty beyond reasonable doubt of the lesser crime of attempted
homicide in accordance with the plea bargaining agreement. Is Judge Berde correct?
NO. ****One accused of homicide cannot be allowed to plead guilty to attempted or
frustrated homicide, although the lesser offense is necessarily included in the offense charged. The reason is that
the crime of homicide as defined in Art. 249 of the RPC necessarily produces death; attempted
homicide does not (Amatan v. Aujero, A.M. No. RTJ-93-956, September 27, 1995).
iii. The lesser offense is necessarily included in the offense charged; and
iv. The plea must have the consent of the prosecutor and the
offended party (Sec. 2, Rule 116).
****No amendment of complaint or information is necessary (Sec.
2). A conviction under this plea shall be equivalent to a conviction of the
offense charged for purposes of double jeopardy (People v. Magat, G.R. No.
130026, May 31, 2000).
c. After prosecution rests – Allowed only when the prosecution does
not have sufficient evidence to establish guilt for the crime charged.
PLEA OF GUILTY TO A NON-CAPITAL OFFENSE [Sec 4]

1. Here, reception of evidence is discretionary. The court may receive evidence
from the parties to determine the penalty to be imposed.
2. EG: He pleads guilty to Homicide. Can he be allowed to present mitigating
circumstances? YES. To determine the imposable penalty.
5.8.4. Accused pleads guilty to CAPITAL241 offense, what the court should
do
1. Duty of the court after the accused pleads guilty to a capital offense—When the
accused pleads guilty to a capital offense, the court shall:
a. Conduct a searching inquiry242 into the:
241
[] Q: Charged with the crime of murder before the RTC of Bulacan, the accused, assisted by
counsel, pleaded guilty to the charge. Thereupon, the trial court rendered judgment convicting the
accused for the crime of murder and sentencing him to suffer reclusion perpetua and to pay civil
indemnity to the heirs of the victim. Did the trial court act properly? (1993 Bar Question)
NO. Sec. 3, Rule 116 applies not only to those cases in which death penalty is imposed but
covers also cases in which reclusion perpetua is imposed. Thus, the requirement under Sec. 3 of Rule
116 must be complied with [TOM: Section 3 only talks about capital offenses though]
[] Alternative Answer: Yes, because it is only when the accused is charged with a capital offense
punishable with death that the court shall conduct a searching inquiry into the voluntariness and full
comprehension of the consequences of the plea of guilty and require the prosecution to prove his guilt
and the precise degree of culpability. The crime charged of murder is not a capital offense, because the
death penalty cannot be imposed under the Constitution.
242
Searching inquiry
1. In conducting a searching inquiry, the following must be present:
a. The trial judge must satisfy himself that the accused has pleaded guilty out of his
voluntary will;
b. That the accused is truly guilty;
c. Based on the accused’s testimony, there exists a rational basis for a finding of guilt
(People vs. Dayot, G.R. No. 88281, July 20, 1990).
****It is more than a merely informing the accused the fact of facing a jail sentence but
also of length of imprisonment under the law and the certainty of serving sentence at a national
penitentiary or penal colony. Furthermore, the accused must not be under the misconception that
a plea of guilty carries with it a more lenient treatment from the judge (Ibid.).
2. PURPOSE of searching inquiry: To determine whether the plea of guilty was made voluntarily and
whether the accused understood fully the consequence of his plea.
i. Voluntariness of the plea, and

ii. Full comprehension of the consequences of the plea;
b. Require the prosecution to prove his guilt and the precise degree of
his culpability;
c. Ask the accused if he desires to present evidence in his behalf and
allow him to do so if he desires. However, the defendant after pleading guilty
may not present evidence as would exonerate him completely from criminal
liability such as proof of self-defense.
****This procedure is MANDATORY,243 and a judge who fails to
3. DUTY OF THE JUDGE in conducting searching inquiry—In all cases, the judge must convince
himself that:
a. The accused is entering the plea voluntarily and intelligently;
b. There exists a rational basis for finding of guilt based on accused’s testimony
c. Inform the accused of the exact length of imprisonment and the certainty that he will
serve it in a national penitentiary
****The case of People v. Pastor (G.R. No. 140208, March 12, 2002) provided the following
as guidelines on how judges must conduct a “searching inquiry”:
i. Ascertain from the accused himself: a) how he was brought into custody of the
law; b) whether he had the assistance of a competent counsel during the custodial and
preliminary investigations; and c) under what conditions he was detained and interrogated
during the investigations;
ii. Ask the defense counsel a series of questions as to whether he had conferred with,
and completely explained to, the accused the meaning and consequences of a plea of guilty;
iii. Elicit information about the personality profile of the accused;
iv. Inform the accused of the exact length of imprisonment or nature of the penalty
under the law and the certainty that he will serve such sentence;
v. Inquire if the accused knows the crime with which he is charged and fully explain
to him the elements of the crime;
vi. All questions posed to the accused should be in a language known and
understood by the latter;
vii. The trial judge must satisfy himself that the accused is truly guilty.
243
[] ****Bar 1995: Crisanto is charged with murder. At his arraignment the prosecution witnesses
appeared in court together with the heirs of the victim. Realizing the gravity of the offense and the
number of witnesses against him Crisanto consulted his counsel de officio who explained to him the
nature of the charge and the consequences of his plea. Crisanto then manifested his readiness for
arraignment. The information was read to him in a language he clearly understood after which he
pleaded guilty. To be sure, the judge forthwith asked him if he indeed fully understood the implications
of his plea and Crisanto readily and without hesitation answered in the affirmative.
a. The judge, fully convinced that the plea of the accused was made with the latter’s full
knowledge of the meaning and consequences of his plea, then pronounced sentence on the accused.
Comment on the action of the judge: ******The judge erred in pronouncing sentence on the
accused without previously conducting a searching inquiry into the voluntariness and full
comprehension of the consequences of the plea of guilty and requiring the prosecution to prove
the guilt and the precise degree of culpability (Sec. 3, Rule 116).
b. Suppose Crisanto with the assistance of counsel waives the presentation of evidence by
the prosecution saying that, after all, he has already entered his plea, may the court insist on the
presentation of the evidence for the prosecution? Yes, in accordance with Sec. 3, Rule 116 (answer
in a)
c. Suppose upon plea bargaining Crisanto decides to plead guilty to the lesser offense of
observe it commits grave abuse of discretion. The reason for this strictness is
to assure that the State makes no mistake in taking life except the life of the
guilty (People v. Diaz, G.R. No. 119073, March 13, 1996).
2. Purpose of the presentation of evidence after the plea of guilty: To preclude
any room for reasonable doubt in the mind of either the trial court or of the
Supreme Court, on review, as to the possibility that there might have been
misunderstanding on the part of the accused as to the nature of the charges to
which he pleaded guilty; and to ascertain the circumstances attendant to the
commission of the crime which justify or require the exercise of greater or
lesser degree of severity in the imposition of prescribed penalties (People v.
Busa, G.R. No. L-32047, June 25, 1973).
3. No collateral attack on plea of guilty: A plea of guilty entered by one who is
fully aware of the direct consequences, including the actual value of any
commitments made to him by court, the prosecutor or his own counsel must
stand. ****It is only when the consensual character of the plea is called into
question that the validity of a guilty plea may be impaired.
4. PERIOD to enter pleas of guilty to a lesser offense
*GR: Plea-bargaining is made during pre-trial stage of criminal proceedings.
****XPN: The law still allows accused to change his plea thereafter provided that
the prosecution does not have sufficient evidence to establish guilt of the
crime charged (People vs. Valderama, G.R. No. 99287, June 23, 1992).
5.8.5. Improvident plea

1. It is a plea without information as to all the circumstances affecting it. It is
based upon a mistaken assumption or misleading information or advice.
2. Instances of improvident plea
a. Plea of guilty was compelled by violence or intimidation;
b. The accused did not fully understand the meaning and
consequences of his plea;
c. Insufficient information to sustain conviction of the offense charged;
d. Information does not charge an offense; or
e. Court has no jurisdiction.
3. Period to withdraw an improvident plea: The court may permit an improvident
plea of guilty to be withdrawn, ****at any time before the judgment of
homicide, may the court still require presentation of evidence? Although Crisanto pleads guilty to a
non-capital offense the court may still require evidence to determine the penalty to be imposed
(Sec. 4, Rule 116).
d. After the information was read to Crisanto upon arraignment and he pleaded guilty to the
charge but the facts did not sufficiently constitute an offense, did his plea of guilt which has
already been entered in the records, have the effect of supplying what was not alleged in the
information to complete the elements of the offense to justify his conviction? NO. His plea of guilty
did not have the effect of supplying what was not alleged in the information to complete the
elements of the offense to justify his conviction. His plea merely admits the truth of the facts
alleged in the information.
conviction becomes final, and be substituted by a plea of not guilty. The

withdrawal of a plea of guilty is not a matter of right to the accused but
addressed to the sound discretion to the trial court (Sec. 5, Rule 116).
4. EFFECT of withdrawal of improvident plea: The court shall set aside the
judgment of conviction and RE-OPEN the case for new trial.
5.8.6. Grounds for suspension of arraignment

1. ******Grounds for SUSPENSION of arraignment—Upon motion by the
proper party on the following grounds:
a. The accused appears to be suffering from an UNSOUND mental
condition which effectively renders him unable to fully understand the charge against him
and to plead intelligently thereto;
b. There exists a valid PREJUDICIAL QUESTION;244
c. A PETITION FOR REVIEW of the resolution of the prosecutor is
pending at the Department of Justice or the Office of the President (Sec. 11, Rule
116), provided that the ****period of suspension shall not exceed 60 days
counted from the filing of the petition at the reviewing office.
d. There are pending incidents such as:
i. Motion to Quash
ii. Motion for Inhibition
iii. Motion for Bill of Particulars
2. PLEA: It pertains to the matter which the accused, on his arraignment, alleges
in answer to the charge against him.
3. PLEA BARGAINING in criminal cases is a process whereby the accused
and the prosecution work a mutually satisfactory disposition of the case
subject to court approval. It usually involves the defendant’s pleading guilty to a
lesser offense or to only one or some of the counts of a multi-count indictment
in return for a lighter sentence than that for the graver charge (Daan v.
Sandiganbayan G.R. No. 163972-77, March 28, 2008).
****It is to be noted that the decision to accept or reject a plea bargaining
agreement is within the sound discretion of the court subject to certain
requirements of statutes or rules (Amante-Descallar v. Judge Ramas, A.M No.
RTJ-08-2142 [OCA-IPI No. 08-2779-RTJ, March 20, 2009).
———————————————————————————————
244 An accused may move for the suspension of his arraignment if: (2012 BAR)
a. amotionforreconsiderationispendingbeforetheinvestigatingprosecutor.
b. accused is bonded and his bondsman failed to notify him of his scheduled arraignment.
c. a prejudicial question exists.
d. thereisnoavailablepublicattorney
5.9. Motion to quash [Rule 117]
5.9.1. Grounds to quash complaint or info 206

G1. That the facts charged do not constitute an offense; 207
G2. That the court trying the case has no jurisdiction over the offense charged; 207
G3. That the court has no jurisdiction over the person of the accused; 208
G4. That the officer who filed the information had no authority to do so; 208
G5. That the information does not conform substantially to the prescribed form; 209
G6. That more than one offense is charged except when a single punishment for various offense is
prescribed by law; 210
G7. That the criminal action or liability has been extinguished; 210
G8. That it contains various averments which if true would constitute legal excuse or justification;
211
G9. Double jeopardy [DJ] (Res Judicata in Prison Grey) 215
5.9.2. Distinguish MTQ from demurrer to evidence 215
5.9.3. Effects of sustaining the motion to quash 222
5.9.4. Exception to the rule that sustaining the motion is not a bar to another prosecution
223
5.9.5. Provisional dismissal 225
———————————————————————————————
BACKGROUNDER ON MTQ
1. It is a special pleading filed by the defendant before entering his plea, which
hypothetically admits the truth of the facts spelled out in the complaint or
information at the same time that it sets up a matter which, if duly proved,
would preclude further proceedings.
2. Period to file a motion to quash an information or complaint
*GR: At any time before entering his plea, the accused may move to
quash the information or complaint (Sec. 1, Rule 117).
****XPN: Instances where a motion to quash may be filed after plea: (Fr. JDE)
a. The facts charged do not constitute an offense
b. Lack of jurisdiction over the offense charged
c. The criminal action or liability has been extinguished
d. Double Jeopardy (Sec. 9, Rule 117)
[] Effect of failure to move to quash or failure to allege a ground before
he pleads to the complaint or information
*GR: It shall be deemed a waiver of any objections.
*XPNs: Grounds based on: (same Fr. JDE, expressed in a different way)
a. The facts charged do not constitute an offense;
b. The court trying the case has no jurisdiction over the offense charged;
b. Criminal liability has been extinguished; and
c. That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise terminated
without his express consent (Sec. 9, Rule 117).
3. Who may file:
*GR: The right to file a motion to quash belongs only to the accused. The
court is not authorized to motu proprio initiate a motion to quash by issuing an
order requiring an explanation why the information should not be quashed.
****XPN: The court, though, has the discretion to dismiss the case if
a. the information is not sufficient or
b. on any ground provided by law, or
c. to dismiss the information for a different one.
4. Purpose of motion to quash: The designated purpose of a motion to quash is to
assail the validity of the criminal information for defects or defenses
APPARENT on the face of the information (Galzole y Soriaga v. Briones and
People, G.R. No. 164682, September 14, 2001).
5. Form and contents of motion to quash
a. In writing;
b. Signed by the accused or his counsel; and
c. Specify distinctly the factual and legal grounds on which it is based
(Sec. 2, Rule 117).
*GR: The court shall not consider any other ground other than those
specifically stated in the motion to quash
****XPN: except lack of jurisdiction over the offense charged and when
the information does not charge an offense (Sec. 2, Rule 117).
5.9.1. Grounds to quash complaint or info

(******exclusive list: Fr. JDE-JJ’s FAMily: Facts charged do not constitute an
offense, no Jurisdiction over the offense charged, Double jeopardy,
Extinguished criminal action/liability; no JN over the person of the accused;
Justified or excused legally even if averments were true, Form prescribed not
conformed with substantially; Authority of the officer who filed the Info is
lacking; More than one offense is charged)
G1. That the facts charged do not constitute an offense;

1. It is fundamental that the complaint or information must state every fact
necessary to make out an offense for the Constitution guarantees that in all
criminal prosecutions the accused should be informed of the nature and cause
of the accusation against him [Sec. 14 (2) Art. III, 1987 Constitution].
2. It is required that the acts or omissions complained of as constituting the
offense must be stated in ordinary and concise language so as to enable a
person of common understanding to know what offense is intended to be
charged, and to enable the court to pronounce judgment (Sec. 9, Rule 110).
3. Bar area: file a motion to quash based on the ground that the facts charged do
not constitute the crime of murder if there is no qualifying circumstance alleged.245
G2. That the court trying the case has no jurisdiction over the offense
charged;
*If the trial court has no jurisdiction, but the case was tried and decided
upon the theory that it had jurisdiction, the parties are not barred, on appeal,
from assailing such jurisdiction, for the same must exist as a matter of law,
and may not be conferred by consent of the parties or by estoppel.
[] JN over the territory: In criminal proceedings, no one should be held to
answer for any crime committed by him except in the jurisdiction where it was
committed.
G3. That the court has no jurisdiction over the person of the accused;
*Jurisdiction over the person is that acquired by the voluntary appearance
of a party in court and his submission to its authority, or by the coercive power of
legal process exerted over the person through an arrest. ****Unlike jurisdiction
over the subject matter and territory, jurisdiction over the person of the
accused may be waived, either expressly or by implication.
[] Test of the court’s jurisdiction
*GR: What determines the jurisdiction of the court in criminal cases is the
extent of the penalty which the law imposes on the misdemeanor, crime or
violation of law charged.
****XPN:
a. Jurisdiction of the Sandiganbayan which is not based on the penalty
provided by law, but on the salary grade of the public official;
b. Libel, which is within the exclusive jurisdiction of the RTC, although
the imposable penalty does not exceed 6 years;
c. Those offenses cognizable by the family court where the determining
factor is the minority of any of the parties;
245 Q: Chato is charged with the murder of Velay. Before arraignment, you, as counsel de oficio of Chato,
discovered that the information failed to allege any qualifying circumstances.
1) How may you properly object to the Insufficiency of the information, and on what ground? As
counsel de oficio for the accused, I can file a motion to quash based on the ground that the facts charged do not
constitute the crime of murder there being no qualifying circumstances alleged. (Sec. 3(a), Rule 117). Alternative
Answer: As counsel de oficio for the accused, I will not file a motion to quash because it will only aggravate the
crime charged. As it is charged, Chato can be convicted only of homicide.
2) May you still avail of that remedy after Chato has entered her plea? After Chato has entered her plea,
she may no longer move to quash because she is barred from doing so. (Sec. 1, Rule 117).
3) What course or courses of action may the court take if it sustains the remedy you seek? (1994 Bar
Question) *****If the court sustains the motion to quash, the court may order that another information be
filed. If the accused is in custody, he shall remain so unless he shall be admitted to bail. If the information is not
filed within the time specified, or within the time specified in the order, or within such further time as the court may allow
for good cause shown, the accused, if in custody, shall be discharged therefrom, unless he is also in custody on
some other charge. (Sec. 5. Rule 117).
d. The offense of slight physical injuries is cognizable by the

Metropolitan, Municipal or Municipal Circuit Trial Court, but where the victim
is a minor, the case is to be filed in the RTC. [TOM: Family Court; RTC only
in the absence of a FC in the locality]
G4. That the officer who filed the information had no authority to do so;
1. Criminal prosecutions are brought by authority of the sovereign, and,
therefore, only the officers possessed of legal power to do so must be allowed
to file criminal information.
2. The law invests the authority to file and prosecute criminal cases to the
following:
a. Provincial fiscals and their assistants (Sec. 1686, Revised Administrative
Code);
b. Chief State Prosecutor and his deputies;
c. Tanodbayan246 and his deputies in special cases (PD 1607);
d. A lawyer appointed by the Secretary of Justice (Sec. 1686, Revised
Administrative Code)
3. Instances where there is an unauthorized filing of information
a. Officer filing is irregularly appointed. It does not necessarily
invalidate the information if such officer may be considered de facto;
b. Officer is disqualified from appointment to such position. The
246Q: Pedrito and Tomas, Mayor and Treasurer, respectively, of the Municipality of San Miguel, Leyte, are
charged before the Sandiganbayan for violation of Section 3 (e), Republic Act No. 3019 (Anti-Graft and Corrupt
Practices Act). The information alleges, among others, that the two conspired in the purchase of several units
of computer through personal canvass instead of a public bidding, causing undue injury to the
municipality. Before arraignment, the accused moved for reinvestigation of the charge, which the court
granted. After reinvestigation, the Office of the Special Prosecutor filed an amended information duly
signed and approved by the Special Prosecutor, alleging the same delictual facts, but with an additional
allegation that the accused gave unwarranted benefits to SB Enterprises owned by Samuel. Samuel was
also indicted under the amended information. Before Samuel was arraigned, he moved to quash the amended
information on the ground that the officer who filed the same had no authority to do so. Resolve the
motion to quash with reasons. (3%) (2009 Bar Question) SUGGESTED ANSWER:
The motion to quash filed by Samuel should be granted. There is no showing that the special
prosecutor was duly authorized or deputized to prosecute Samuel. Under R.A. No. 6770, also known as
the Ombudsman Act of 1989, the Special Prosecutor has the power and authority, under the supervision
and control of the Ombudsman, to conduct preliminary investigation and prosecute criminal cases
before the Sandiganbayan and perform such other duties assigned to him by the Ombudsman (Calingin v.
Desierto, 529 SCRA 720 [2007]).******Absent a clear delegation of authority from the Ombudsman to the
Special Prosecutor to file the information, the latter would have no authority to file the same. The Special
Prosecutor cannot be considered an alter ego of the Ombudsman as the doctrine of qualified political
agency does not apply to the Office of the Ombudsman. In fact, the powers of the Office of the Special
Prosecutor under the law may be exercised only under the supervision and control and upon the
authority of the Ombudsman (Perez v. Sandiganbayan, 503 SCRA 252[2006]).
ALTERNATIVE ANSWER: The-motion to quash should be denied for lack of merit. The case is
already filed in court which must have been done with the approval of the Ombudsman, and thus the Special
Prosecutor’s Office of the Ombudsman takes over. As it is the court which ordered the reinvestigation, the
Office of the Special Prosecutor which is handling the case in court, has the authority to act and when
warranted, refile the case. The amendment made is only a matter of form which only particularized the violation
of the same provision of Rep. Act 3019, as amended.
information is invalid and the court does not acquire jurisdiction to try the
accused thereon (Villa vs. Banez, G.R. No. L-4313, March 20, 1951);
c. Officer filed the information without the approval by the head/Chief
prosecutor (Sec. 4, Rule 112);
d. Information is filed without the complainant in cases involving private
crimes.
4. ******An infirmity in the information caused by the lack of authority of the
officer signing it cannot be cured by silence, acquiescence, or even by
express consent. An invalid information is no information at all. No criminal
proceeding may prosper therefrom, thus, it is subject to quashal (Romualdez vs.
Sandiganbayan, G.R. Nos. 143618-41, July 30, 2002).
G5. That the information does not conform substantially to the prescribed
form;
*Lack of substantial compliance with the requirements for a good
complaint or information required under Secs. 3 to 13, Rule 110 renders the
accusatory pleading quashable. ****But mere defects in matters of form may be
cured by amendment.
G6. That more than one offense is charged except when a single
punishment for various offense is prescribed by law;247
1. Multiplicity of offenses charged: A complaint or information must charge but
one offense, except only in those cases in which the existing laws prescribe a
single punishment for various offenses (Pamaran, 2010).
2. Bar 1996: The information filed against Abi charged more than one offense.
247
BAR 2016: Q: The information against Roger Alindogan for the crime of acts of lasciviousness
under Article 336 of the Revised Penal Code avers: "That on or about 10:30 o'clock in the evening of
February 1, 2010 at Barangay Matalaba, Imus, Cavite and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd and unchaste design, through force and intimidation, did then and
there, wilfully, unlawfully and feloniously commit sexual abuse on his daughter, Rose Domingo, a minor of
11 years old, either by raping her or committing acts of lasciviousness on her, against her will and consent to
her damage and prejudice. ACTS CONTRARY TO LAW." The accused wants to have the case
dismissed because he believes that the charge is confusing and the information is defective. What
ground or grounds can he raise in moving for the quashal of the information? Explain.
SUGGESTED ANSWER: The grounds which the accused can raise in moving for the quashal of the
information are the following: 1. THE INFORMATION CHARGES MORE THAN ONE
OFFENSE. The information charges two offenses, that is, rape and sexual abuse. Worse, the
charges are stated in the alternative, making it unclear to the accused as to what offense exactly he is
being charged with. 2. THE INFORMATION DOES NOT CONFORM SUBSTANTIALLY
TO THE REQUIRED FORM. The information merely states that the accused committed acts of
lasciviousness upon the victim without specifying what those acts of lasciviousness were. (Jurist Review
Center, Inc.)
She has not yet been arraigned. If you were the lawyer of Abi, would you file a
motion to quash or a motion for bill of particulars? ****I would file a motion to
quash on the ground that more than one offense is charged. A motion for bill
of particulars is not proper because there are no defects or details in the
information that need clarification.
3. *****What is the effect of the failure of the accused to file a motion to quash
an information that charges two offenses?248 (2011 BAR)
(A) He may be convicted only of the more serious offense.
(B) He may in general be convicted of both offenses.
(C) The trial shall be void.
(D) He may be convicted only of the lesser offense.
4. Bar scenarios: In illegal possession of firearms, there should be separate
informations for each weapon unlawfully possessed.249
G7. That the criminal action or liability has been extinguished;

1. Grounds for extinction of criminal liability: Under Art. 89 of the RPC, it is
provided that criminal liability is totally extinguished by:
a. The death of the convict, as to personal penalties; and as to pecuniary penalties,
liability therefor is extinguished only when the death of the offender occurs
before final judgment250; ****But the death of the offended party before final
248******As a general rule, a complaint or information must charge only one offense, otherwise, the same is
defective. However, since accused-appellant entered a plea of not guilty during arraignment and failed
to move for the quashal of the Informations, he is deemed to have waived his right to question the
same. Section 9 of Rule 117 provides that "[t]he failure of the accused to assert any ground of a motion to
quash before he pleads to the complaint or information, either because he did not file a motion to quash or
failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on
the grounds provided for in paragraphs (a), (b), (g), and (i) of Section 3 of this Rule.” It is also well-settled that
when two or more offenses are charged in a single complaint or information but the accused fails to
object to it before trial, the court may convict him of as many offenses as are charged and proved, and
impose upon him the proper penalty for each offense. Accused-Appellant can therefore be held liable for all
the crimes alleged in the Informations in Criminal Case Nos. 7698-G and 7702-G, i.e., 2 counts of murder and 4
counts of attempted murder, respectively, and proven during trial. PEOPLE v. JUGUETA, 2016.
249 Q: Rodolfo is charged with possession of unlicensed firearms in an information filed in the Regional Trial
Court. It was alleged therein that Rodolfo was in possession of two unlicensed firearms: a .45 caliber and a
.32 caliber. Under Republic Act No. 8294, possession of an unlicensed 45 caliber gun is punishable by
prision mayor in its minimum period and a fine of P30.00Q.00. while possession of an unlicensed .32 caliber
gun is punishable by prision correctional in its maximum period and a fine of not less than PI 5,000.00.
As counsel of the accused, you intend to file a motion to quash the Information. What ground or grounds
should you invoke? Explain. (4%) (2005 Bar Question) SUGGESTED ANSWER:
The ground for the motion to quash is that more than one offense is charged in the information
(Sec. 3[f], Rule 117, 2000 Rules of Criminal Procedure). Likewise, the RTC has no jurisdiction over the
second offense of possession of an unlicensed .32 caliber gun, punishable by prision correccional in its
maximum period and a fine of not less than P15,000.00, It is the MTC that has exclusive and original
jurisdiction over offenses punishable by imprisonment not exceeding six years. (Sec. 2, Republic Act No.
7691 [1994], amending Sec. 32, B.P. Big. 129) [1980]
250
BAR 2017: Q: Engr. Magna Nakaw, the District Engineer of the DPWH in the Province of Walang
Progreso, and Mr. Pork Chop, a private contractor, were both charged in the Office of the
Ombudsman for violation of the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) under a
conviction will not abate prosecution where the offense charged is one against
the State involving peace and order as well as in private crimes (People v.
Misola, G.R. No. L-3606, December 29, 1950).
b. Service of the sentence;
c. Amnesty, which completely extinguishes the penalty and all its effects;
d. Absolute pardon;
e. Prescription of the crime;
f. Prescription of the penalty; and
g. The marriage of the offended woman, as provided in Article 344 of the
Revised Penal Code.
2. On Pardon and Amnesty
PARDON AMNESTY
Granted by the Chief Proclaimed by the President, but it has to be with the concurrence
Executive. of Congress.
a private act which must be a public act which the courts have to take judicial notice of.
pleaded and proved by the
person pardoned because the
courts take no notice of it.
Granted to one after Granted to classes of persons or communities who may be guilty of
conviction. political offenses, generally before or after the institution of the
criminal prosecution and sometimes after conviction.
Relieves the offender from the It only serves as a relief from the punishment but it does not
consequences of the offense restore the political rights of the person, unless it is expressly provided
of which he is convicted. for in the pardon. Abolishes and puts into oblivion the offense itself.
It is as though the offense was never committed.
CRIME PRESCRIPTION OF CRIME PRESCRIPTION OF PENALTY
Death, RP, RT 20 years Death & RP only: 20 years

PM 15 years RT & PM: 15 years
conspiracy theory. While the charges were undergoing investigation in the Office of the Ombudsman,
Engr. Magna Nakaw passed away. Mr. Pork Chop immediately filed a motion to terminate the
investigation and to dismiss the charges against him, arguing that because he was charged in conspiracy
with the deceased, there was no longer a conspiracy to speak of and, consequently, any legal ground to
hold him for trial had been extinguished. Rule on the motion to terminate filed by Mr. Pork Chop,
with brief reasons. SUGGESTED ANSWER: Mr. Pork Chop’s motion to terminate the investigation
before the Office of the Ombudsman is denied. In a case involving similar facts, the Supreme Court
held that the death of a co-conspirator, even if he was the lone public officer, did not mean that
the allegation of conspiracy to violate the Anti-Graft Law could no longer be proved or that the
alleged conspiracy was already expunged. The only thing extinguished by the death of a co-
conspirator was his criminal liability. His death did not extinguish the crime nor did it remove
the basis of the charge of conspiracy between him and private respondent. [People v. Go, 25
March 2014, Peralta, J.] (Jurist Review Center, Inc.)
CRIME PRESCRIPTION OF CRIME PRESCRIPTION OF PENALTY
Correctional penalties 10 years 10 years

(PC, S, D), except AM
Arresto Mayor (AM) 5 years 5 years
Libel or similar offenses 1 year [since it’s punishable by prision
correccional: 10 years]
Oral defamation & 6 months [from arresto menor to mayor to
Slander by deed pc, and so, 2mo. to 10 years]
Light penalties (Arresto 2 months 1 year
Menor, Public censure)
Running of the GR: from the time of the commission of the from the time the convict evaded
prescriptive period crime, if known. If not known, from the service of his sentence. It is
discovery by offended party, authorities necessary therefore that the
and agents. XPN: crime committed is convict is serving his sentence
involves the registration of title of real and while serving, he escaped. It
properties—registration of the sale, is from the time of escape that
conveyance or mortgage of the RP constitutes the prescriptive period runs.
a notice to the whole world, hence, the start
of the commencement of the prescriptive
period. (Even if the offended party did not
know as long as there has been registration
which is deemed as constructive notice)
Suspension of Upon filing of complaint or info 1. When offender surrenders; 2.
prescriptive period before the fiscal’s office or the public When offender went to a country which
prosecutor for purposes of has no extradition treaty with the
preliminary investigation. It remains Philippines; 3. When convict commits a
suspended until the accused is crime before the expiration of
convicted or acquitted or the case is period of prescription; 4. When the
terminated without the fault of offender is captured
accused.
3. Summary of prescriptive periods of crimes and penalties*******
4. More on the running251/suspension of the prescriptive period:
a. GR: PP vs. Bautista 2007: It is a well-settled rule that the filing of the
complaint with the fiscal’s office suspends the running of the prescriptive
period. ******PP vs. Pangilinan:252 whether it is a violation of a special penal law
like the BP 22 or a violation of the RPC, the FILING OF A COMPLAINT
before the office of the public prosecutor suspends or interrupts the running
251 [] Computation of prescriptive period of offenses: The period of prescription commences to run from the
day on which the crime is discovered by the offended party, the authorities of their agents, and shall be
interrupted by the filing of the complaint or information, and commences to run again when such
proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not
imputable to him. The term of prescription does not run when the offender is absent from the Philippines (Art.
91, RPC).
252 ******People v. Pangilinan, G.R. No. 152662, 13 June 2012 - "There is no more distinction between cases
under the RPC and those covered by special laws with respect to the interruption of the period of
prescription. Thus filing the same with the prosecutor should toll the prescriptive period.
of the prescriptive period. It remains suspended until the case has been
decided that the accused being acquitted or convicted, or the case has been
dismissed for any reason not imputable to him.
b. XPNs when filing at the prosecutor’s office does not suspend the
prescriptive period [NB: these exceptions seem to apply only if the case is filed
outside Metro Manila, since in the latter, all cases must be filed first before the
prosecutor’s office before an information is filed in court, whereas outside Metro
Manila, a complaint may be filed directly in court without the need for preliminary
investigation if the penalty is less than 4 years, 2 months and 1 day.253]
i. In case of violation of municipal ordinance, where the running of
the prescriptive period is interrupted upon the filing of the complaint before
the proper court;254
ii. if the case is under the Rules on Summary Procedure: (1) Violations
of traffic laws, rules and regulations; (2) Violations of the rental law;
(3) Violations of municipal or city ordinances;255 (4) All other criminal cases
253 LPS: In Zaldivia v. Reyes (1992), the proceedings referred to in Section 2 of Act No. 3326 are “judicial
proceedings” (which do not include administrative proceedings). Thus, a crime such as violation of ordinance
may prescribe even if the complaint is filed seasonably with the prosecutor's office if, intentionally or
not, he delays the institution of the necessary judicial proceedings until it is too late.
In Jadewell Parking v. Hon. Lidua (2013), the Supreme Court applied the Zaldivia principle to the
prescription of violation of ordinances. In this case, what is involved in this case is violation of ordinance of
Baguio City, a chartered city. Accordingly, when the representatives of the petitioner filed the Complaint before
the Provincial Prosecutor of Baguio, the prescription period was running. It continued to run until the filing of
the Information. They had two months to file the Information and institute the judicial proceedings by
filing the Information with the Municipal Trial Court.
******While People v. Pangilinan (2012) categorically abandoned the Zaldivia principle, the Supreme
Court in Jadewell ruled the doctrine of Pangilinan pertains to violations of special laws but not to
ordinances.
254 *Here, CA used the case of Zaldivia vs. Reyes and ruled that the violation of BP 22 has already prescribed
because in case of violation of special penal laws, the running of the prescriptive period is only interrupted
upon the filing of the case before the appropriate court (SC interpreted the word “proceedings” as judicial
proceedings in Zaldivia). But SC said that the interpretation of the CA is erroneous. SC said it is now settled
jurisprudence that whether it is a violation of a special penal law or a violation of the RPC, the filing of the
complaint with the public prosecutor interrupts the running of the prescriptive period. In Zaldivia vs. Reyes,
what was involved was a violation of a municipal ordinance. It is only in case of violation of municipal
ordinance wherein the running of the prescriptive period is interrupted upon the filing of the complaint
before the proper court. ******Note that Dean Riano says that this XPN no longer applies, i.e., filing at the
ombudsman/prosecutor already interrupts the running of the period [PP vs. Pangilinan].
255 Q: On May 20, 1992, the police charged accused before the prosecutor’s office with violation of a
municipal ordinance which carries a penalty of six months imprisonment. The offense was allegedly committed
on May 11, 1990. On October 2,1992, the corresponding information was filed with the Municipal Trial
Court.
Accused moved to quash the information on the ground that the crime had prescribed for the reason that the
information was filed beyond the two-month period from the date of the alleged offense. For its part, the
prosecution contended that the prescriptive period was suspended upon the filing of the complaint
against accused with the Office of the Prosecutor. Who is correct? Explain. (1993 Bar Question) Answer:
The accused is correct. The offense charged, violation - of a municipal ordinance, is governed by the
Rule on Summary Procedure. Under the 1988 amendment of Section 1, Rule 110, of the 1985 Rules on
Criminal Procedure; the filing of a complaint- with the prosecutor’s office interrupts the period of
prescription of the offense charged. However, this provision applies to "offenses not subject to the rule
on summary procedure in special cases", according to the opening phrase in said Section 1 of Rule 110.
where the penalty prescribed by law for the offense charged is imprisonment
not exceeding six months, or a fine not exceeding (P1,000.00), or both,
irrespective of other imposable penalties, accessory or otherwise, or of the civil
liability arising therefrom: Provided, however, that in offenses involving damage
to property through criminal negligence, this Rule shall govern where the
imposable fine does not exceed ten thousand pesos (P10,000.00).
5. Nolle Prosequi: It is a Latin term for “we shall no longer prosecute.” It is a
dismissal of the criminal case by the government before the accused is placed
on trial and before he is called to plead, with the approval of the court in the
exercise of its judicial discretion. *****Nolle prosequi is not the same as
quashal, although both have the same result – the dismissal of the case.
*****A nolle prosequi is initiated by the prosecutor while a quashal is upon
motion to quash filed by the accused. The case can be refiled later.256
G8. That it contains various averments which if true would constitute legal
excuse or justification;
****Only exempting circumstances constitute a legal excuse or
justification. Justifying circumstances such as self-defense must be proven.
G9. Double jeopardy [DJ] (Res Judicata in Prison Grey257)

1. Codal: That the accused has been previously convicted or acquitted of the
Consequently, when the corresponding information was filed with the Municipal Trial Court, the offense had
already prescribed. (Zaldivia us. Reyes, 211 SCRA 277).
[] ******Note that Dean Riano says that this XPN no longer applies, i.e., filing at the
ombudsman/prosecutor already interrupts the running of the period [PP vs. Pangilinan]: Q: Qn February
21, 1990, Enrique Magno was stabbed on the right arm by Armando Reyes at Balara, Quezon City. A complaint
for slight physical injuries was filed against Reyes' with the office of the City Prosecutor on February 28,
1990 as the injuries required five (5) days of medical attendance. The information for slight physical injuries was
filed on May 12, 1990 with the Quezon Metropolitan Trial Court. Reyes moved to quash the information on
the ground of prescription as it was filed on the 80th day whereas the prescriptive period for slight physical
injuries is 60 days. Should the motion to quash be granted? Decide with reasons. (1990 Bar Question) Answer:
No. because under the 1988 Amendments to the Rules on Criminal Procedure, the filing of the
complaint with the Office of the City Prosecutor on February 28, 1990 interrupted the prescription of the
offense charged. (Sec. 1 of Rule 110)
256
[] Bar 2003: When a criminal case is dismissed on nolle prosequi, can it later be refiled?
YES. As a general rule, when a criminal case is dismissed on nolle prosequi before the accused
is placed on trial and before he is called on to plead, this is not equivalent to an acquittal and does
not bar a subsequent prosecution for the same offense (Ibid.). It partakes of a non-user or
discontinuance in a civil suit and leaves the matter in the same condition in which it was
before the commencement of the prosecution. It is not an acquittal; it is not a final disposition of
the case; and it does not bar a subsequent prosecution for the same offense. Thus, it can be refiled
(Galvez v. CA, G.R. No. 120715, March 29, 1996).
257Bar: *****“Res judicata in prison grey" is the criminal concept of double jeopardy, as “res judicata" is the
doctrine of civil law (Trinidad v. Office of the Ombudsman, GR No. 166038, December 4, 2007).
Described as “res judicata in prison grey,” the right against double jeopardy prohibits the
prosecution of a person for a crime of which he has been previously acquitted or convicted. The
purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not
thereafter be subjected to the danger and anxiety of a second charge against him for the same offense (Joel
B. Caes v. Intermediate Appellate Court, November 6, 1989).
offense charged, or the case against him was dismissed or otherwise terminated
without his express consent (Sec. 3, Rule 117).
a. It means that when a person is charged with an offense and the case is
terminated either by (i) acquittal or (ii) conviction or (iii) in any other manner
without the consent of the accused, the latter cannot again be charged with
the same or identical offense.
b. Likewise, if an act is punished by a law and an ordinance, conviction
or acquittal under either shall constitute a bar to another prosecution for the
same act.
2. PURPOSE of the right against double jeopardy: The purpose is to set the
effects of the first prosecution FOREVER at rest, assuring the accused that he
shall not thereafter be subjected to the danger and anxiety of a second charge
against him for the same offense (Caes v. Intermediate Appellate Court, G.R. Nos.
74989-90, November 6, 1989). It protects the accused not against the peril of
second punishment but against being tried again.
3. KINDS of double jeopardy
a. No person shall be put twice in jeopardy for the same offense.
b. When the act punished by a law and an ordinance, conviction or
acquittal under either shall be a bar to another prosecution for the same act (Sec.
21, Art. III, 1987 Constitution).
4. ******REQUISITES for the attachment of the first jeopardy
a. Competent Court;
b. Valid jurisdiction;
c. Accused was arraigned;
d. Accused pleaded258.
[] ELEMENTS of Double Jeopardy—It attaches only upon:
(1) a valid indictment or valid complaint/information; it is invalid if the
258
BAR 2017: Q: Juancho entered a plea of guilty when he was arraigned under an information for
homicide. To determine the penalty to be imposed, the trial court allowed Juancho to present evidence
proving any mitigating circumstance in his favor. Juancho was able to establish complete self-
defense. Convinced by the evidence adduced by Juancho, the trial court rendered a verdict of
acquittal. May the Prosecution assail the acquittal without infringing the constitutional guarantee
against double jeopardy in favor of Juancho? Explain your answer. SUGGESTED ANSWER: Yes,
the Prosecution may assail the acquittal without infringing upon the constitutional guarantee against
double jeopardy. Under the Rules of Criminal Procedure, a requirement for a first jeopardy to
attach is that there must have been a valid plea by the accused. Said rules also provide that when
the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a
plea of guilty shall be entered for him. Here Juancho’s plea of guilty was deemed withdrawn when
he presented exculpatory evidence to the effect that he acted in self-defense. Hence his plea of
guilty was deemed withdrawn and a plea of guilty should have been entered for him by the court,
which however was not done. Since there was no standing plea, a first jeopardy did not attach
and thus the Prosecution may assail the acquittal without infringing upon Juancho’s right
against double jeopardy. [People v. Balisacan, 31 August 1966] (Jurist Review Center, Inc.)
prosecutor is from another place;259 or if complaint is required but an information

was used;260
(2) before a competent court; hence, if filed before the wrong court, it can
be refiled before the right court without DJ.261 For the same262 offense, it cannot
be filed in a court marshall and also in a civil court.263
(3) after arraignment; hence, if the complaint/info was dismissed before
arraignment, there is no DJ;264 Just re-filed it.265
(4) when a valid266 plea has been entered;
(5) and when the defendant was convicted or acquitted, or the case was
dismissed or otherwise terminated without the express consent of the accused; hence,
if there is express consent of the accused, DJ will not apply.267 When is it
considered ACQUITTAL AND NOT MERE DISMISSAL, even with the
consent268 of the accused?******
a. Violation of the right to speedy disposition of his case;
b. Violation of his right to speedy trial;269
259 *Invalid if charged in Manila but signed by the prosecutor of Pampanga;
260 invalid if charged with concubinage but through an Information, not a Complaint—there is no valid
indictment because concubinage shall be filed in court through a Complaint, not an Information.
261 ****If filed before a court without JN over the case, it can be re-filed. Binay case: the Info was first filed
before the RTC, but it should have been before SB. And so, it was withdrawn and filed to the SB instead. Is
there DJ? NO, because it was filed before the wrong court.
262 ******The prohibition against double jeopardy refers to the same offense and not to the same act. The
offense charged in the two prosecutions must be the same in law and in fact, because the same acts may be
violative of two or more provisions of the criminal law.
263 [] Q: Can a person convicted by a court-martial be prosecuted again in the civil court? NO. ****A person
convicted by a court-martial cannot, for the same offense, be prosecuted again in the civil court. A court
martial is a court, and the prosecution of an accused before it is criminal, not administrative; thus it would
be, under certain conditions, a bar to another prosecution of the defendant for the same offense, because the
latter would place the accused in double jeopardy (Marcos v. Chief of Staff, G.R. No. L-4663, May 30, 1951).
264 [] Q: Is there double jeopardy when the complaint or information was dismissed before the defendant
has been arraigned and had pleaded thereto? NO. The requirement that the accused must have been arraigned
and pleaded to the charge rests upon the idea that it is only from that moment that the issues for trial are
deemed joined. Before that, the accused is not in danger of being validly convicted (People vs. Apostol, 64 Phil.
676).
265 [] Bar 2002: Dora and Egor were charged with homicide in one information. Before they could be
arraigned, the prosecution moved to withdraw the information altogether and its motion was granted. Can the
prosecution re-file the information although this time for murder? YES. The prosecution can re-file the
information for murder in substitution of the information for homicide because no double jeopardy has as yet
attached (Galvez v. Court of Appeals, G.R. No. 114046, October 24, 1994).
266 ****Remember the cases of Magat and Balisacan: the conditional plea of guilty was not valid—it should have
been not guilty, hence, no DJ.

267 EG: if you file a MTQ and the case is dismissed, such motion is with your consent, hence, the Court can
order the filing of a new Information, without violating your right against DJ; Why? Because this is mere
dismissal, not acquittal. Note that under Sec 4, Rule 117, if after the prosecution was given an opportunity to
amend the Information and the prosecution failed to do so, or the Complaint/Info still suffers the same defect
after amendment, the MTQ shall be granted. ****Now, the ****Remember the cases of Magat and Balisacan:
the conditional plea of guilty was not valid—it should have been not guilty, hence, no DJ., unless the motion is
based on two grounds: i) the criminal action or liability has been extinguished, and double jeopardy [Sec 6,
Rule 117].
268 (even if dismissal was upon motion of the accused or with his express consent)
269 (Benares v. Lim, G.R. No. 173421, December 14, 2006)
c. Motion for Demurrer to Evidence;

d. If he is made a state witness—his discharge is equivalent to an acquittal.
e. The dismissal is based on insufficiency of evidence of the
prosecution (Demurrer to evidence)
f. dismissal due to failure to prosecute which amounts to an
acquittal for an offense which is necessarily included in the previous offense
that was dismissed.270
5. Attachment of the second jeopardy
a. When the accused was acquitted
b. When there is final conviction
c. Dismissal on the merits
d. Dismissal without express consent
6. INSTANCES WHEN DOUBLE JEOPARDY WILL NOT ATTACH*****
a. Exceptions to DJ under Sec 7, Rule 117 (see identity rule, infra)
i. the graver offense developed due to SUPERVENING FACTS
arising from the same act or omission constituting the former charge; EG: from
frustrated homicide to homicide when the victim died due to the same act or omission.
ii. the facts constituting the graver charge became known or were
discovered only after a plea was entered in the former complaint or
information;271 EG: from less serious to serious physical injuries.
270
[] Bar 2002: Dondon was charged with slight physical injuries in the MTC. He pleaded not guilty
and went to trial. After the prosecution has presented its evidence, the trial court set the
continuation of the hearing on another date. On the date scheduled for hearing, the prosecutor failed
to appear, whereupon the court, on motion of Dondon, dismissed the case. A few minutes later,
the prosecutor arrived and opposed the dismissal of the case. The court reconsidered its order and
directed Dondon to present his evidence. Before the next date of trial came, however, he moved that
the last order be set aside on the ground that the reinstatement of the case had placed him
twice in jeopardy. Acceding to this motion, the court again dismissed the case. The prosecutor then
filed an information in the RTC, charging Dondon with direct assault based on the same facts
alleged in the information for slight physical injuries but with the added allegation that he inflicted
the injuries out of resentment for what the complainant had done in the performance of his duties
as chairman of the board of election inspectors. He moved to quash the second information on the
ground that its filing had placed him in double jeopardy. How should Dondon’s motion to quash be
resolved?
Dondon’s motion to quash should be granted on the ground of double jeopardy because
the first offense charged is necessarily included in the second offense charged. Although the
dismissal of the first case was upon motion of the accused, double jeopardy attached since the
dismissal was due to failure to prosecute which amounts to an acquittal (People v. Clobel, G.R.
No. L-20314, August 31, 1964; Esmeñe v. Pogoy, G.R. No. L-54110, February 20, 1981)
271Q: For the multiple stab wounds sustained by the victim, Noel was charged with frustrated homicide in the
Regional Trial Court. Upon arraignment, he entered a plea of guilty to said crime. Neither the court nor the
prosecution was aware that the victim had died two days earlier on account of his stab wounds. Because of his
guilty plea, Noel was convicted of frustrated homicide and meted the corresponding penalty. When the
prosecution learned of the victim’s death, it filed within fifteen (15) days therefrom a motion to amend
the Information to upgrade the charge from frustrated homicide to consummated homicide. Noel opposed the
motion claiming that the admission of the amended Information would place him in double jeopardy. Resolve
the motion with reasons. (4%) (2005 Bar Question) SUGGESTED ANSWER:
iii. ******the plea of guilty to a lesser offense was made without

the consent of the prosecutor and of the offended party except when the latter
failed to appear despite due notice, in which case the conformity of the prosecutor
alone will suffice.
b. The dismissal of a case during preliminary investigation does not
constitute double jeopardy, preliminary investigation not being part of the
trial (Flores v Montemayor, G.R. No. 170146, June 8, 2011).
c. When the Court finds that the “criminal trial was a sham” because the
prosecution representing the sovereign people in the criminal case was denied
due process (Galman v. Sandiganbayan, G.R. No. 72670, September 12, 1986).
d. A void judgment for having been issued without jurisdiction. No
double jeopardy attaches because a void judgment is, in legal effect, no
judgment at all. By it, no rights are divested. Through it, no rights can be
attained. Being worthless, all proceedings founded upon it are equally worthless. It
neither binds nor bars anyone (People v. Court of Appeals, G.R. No. L-54641,
November 28, 1980).
7. TESTS in determining the identity of the offenses for the purpose of applying
the rule on double jeopardy*****
a. SAME OFFENSE TEST272 – Whether the offense charged in the first
information is the same offense in the second charge, or whether the second
*****Amending the information from frustrated homicide to consummated homicide does not
place the accused in double jeopardy. The conviction of the accused shall not be a bar to another prosecution
for an offense which necessarily includes the offense charged in the former complaint or information when
(a) the graver offense developed due to supervening facts arising from the same act or omission constituting
the former charge; or (b) the facts constituting the graver charge became known or were discovered only
after a plea was entered in the former complaint or information. (Sec. 7, second par., Rule 117,2000 Rules of
Criminal Procedure). Here, when the plea to frustrated homicide was made, neither the court nor the
prosecution was aware that the victim had died two days earlier on account of his stab wounds. The case
falls under (b), since the facts constituting the graver charge became known or were discovered only after a plea
was entered in the former complaint or information.
272
[] Bar 1993: For firing a machine gun which caused panic among the people present and physical
injuries to one, two separate informations (one for serious public disturbance and the other for
reckless imprudence resulting in physical injuries) were filed against the accused. As he pleaded guilty
to the charge of reckless imprudence resulting in physical injuries, the accused was convicted and
sentenced accordingly. Later, the accused sought to dismiss the charge of serious public
disturbance on the ground of double jeopardy. Is there double jeopardy? Why?
NO. ****The protection against double jeopardy is only for the same offense. A single
act may be an offense against two different provisions of law and if one provision requires proof
of an additional fact which the other does not, an acquittal or conviction under one does not bar
prosecution under the other. In this case, the act of firing a machine gun violated two articles of
the RPC. Consequently, conviction for one does not bar prosecution for the other.
offense necessarily includes273 or is necessarily included274 in the first offense

charged in the former complaint or information.
b. SAME-EVIDENCE TEST – Whether the facts alleged in the
second information, if proved, would have been sufficient to sustain the
former information, or from which the accused may have been acquitted or
convicted.
8. IDENTITY RULE
*GR: There is identity between two offenses not only when the second
offense is exactly the same as the first, but also when the second offense
includes or is necessarily included (variance doctrine275) in the first offense
or an attempt or frustration thereof, or when it necessarily includes or is
necessarily included in the offense charged in the first information.
*XPNs:
273 The accused was convicted for estafa thru falsification of public document filed by one of two offended
parties. Can the other offended party charge him again with the same crime? (2011 BAR)
(A) Yes, since the wrong done the second offended party is a separate crime.
(B) No, since the offense refers to the same series of act, prompted by one criminal intent.
(C) Yes, since the second offended party is entitled to the vindication of the wrong done him as well.
(D) No, since the second offended party is in estoppel, not having joined the first criminal action.
274 Q: In a case of a prosecution of an accused for estafa after his acquittal of the crime of illegal
recruitment, but which involves the same set of facts as the first case, can the accused raise the defense of
double Jeopardy? How about res adjudicata? (1994 Bar Question) Answer:
No. The accused cannot raise the defense of double jeopardy because the offenses of estafa and illegal
recruitment are separate offenses even though they involve the same set of facts. Res adjudicata is not
applicable in the case at bar.
275
VARIANCE DOCTRINE
a. An offense charged necessarily includes the offense proved when some of the essential
ingredients or ingredients of the former as alleged in the complaint or information constitute the
latter.
b. An offense charged is necessarily included in the offense proved when the essential
ingredients of the former constitute or form part of those constituting the latter.
a. The graver276 offense developed due to supervening facts277 arising out

of the same act or omission constituting the former charge (Sec. 7(a), Rule 117).278
b. The facts constituting the graver offense became known or were
discovered only after a plea was entered in the former complaint or
information (Sec. 7(b), Rule 117).
c. The plea of guilty to a lesser offense was made without the consent
of the prosecutor and the offended party (Sec. 7 (c), Rule 117).
d. The second offense was not in existence at the time of the first
prosecution for the simple reason that in such case, there is no possibility for
the accused, during the first prosecution, to be convicted for an offense that
was then inexistent (Melo v. People, G.R. No. L–3580, March 22, 1950).
****In any of the foregoing cases, where the accused satisfies or serves in
276
[] Q: Melo was charged with frustrated homicide, for having allegedly inflicted upon Obillo several
serious wounds which required medical attendance. Obillo died from his wounds hours after the
accused pleaded guilty of the offense charged. An amended information was then filed charging
the accused with consummated homicide. The accused filed a motion to quash the amended
information alleging double jeopardy. Is the accused correct?
****NO, for the simple reason that in such case there is no possibility for the accused,
during the first prosecution, to be convicted for an offense that was then inexistent. Thus,
where the accused was charged with physical injuries and after conviction the injured person dies, the
charge for homicide against the same accused does not put him twice in jeopardy. Stating it in another
way, the rule is that "where after the first prosecution a new fact supervenes for which the
defendant is responsible, which changes the character of the offense and, together with the fact
existing at the time, constitutes a new and distinct offense,” the accused cannot be said to be in
second jeopardy if indicated for the new offense (Melo v. People, G.R. No. L–3580, March 22, 1950).
****Accordingly, an offense may be said to necessarily include or to be necessarily included in
another offense, for the purpose of determining the existence of double jeopardy, WHEN
BOTH OFFENSES WERE IN EXISTENCE DURING THE PENDENCY OF THE FIRST
prosecution, for otherwise, if the second offense was then inexistence, no jeopardy could attach
therefor during the first prosecution, and consequently a subsequent charge for the same cannot
constitute second jeopardy. By the very nature of things there can be no double jeopardy under such
circumstance (Ibid.).
277DOCTRINE OF SUPERVENING FACT: If, after the first prosecution, a new fact supervenes on
which the defendant may be held liable, altering the character of the crime and giving rise to a new and distinct
offense, the accused cannot be said to be in second jeopardy if indicted for the new offense.
278
[] Q: Accused was charged with and convicted of less serious physical injuries. The accused had
already begun serving his sentence when it was found out that the complainant’s injuries did
not heal within the period formerly estimated, and so the provincial fiscal filed another information
for serious physical injuries. The accused moved to quash this second information on the ground of
double jeopardy. Is the accused correct?
NO. Reversing the trial court’s order granting his motion, the SC reiterated the Melo ruling and
then added: “That rule applies to the present case where, after the prosecution for a lesser crime, new
facts have supervened which, together with those already in existence at the time of the first
prosecution, have made the offense graver and the penalty first imposed legally inadequate” (Double
Jeopardy: The Supervening Event Doctrine, 76 SCRA 469).
****“It is indispensable that a new fact for which the defendant is responsible had
SUPERVENED and this new fact changes the character of the crime first imputed to him so
that, together with the facts previously existing, it constitutes a new and distinct offense (Ibid.).
whole or in part the judgment, he shall be credited with the same in the event of
conviction for the graver offense.
9. DJ has no effect on the CIVIL ASPECT of the case: ****The offended party
and the accused may APPEAL the civil aspect of the case because the concept of
double jeopardy evidently has reference only to the criminal case and has
no effect on the civil liability of the accused (Riano, 2011)
10. ****Non-applicability of double jeopardy to administrative case: The rule
on double jeopardy does not apply to a controversy where one is an
administrative case and the other is criminal in nature (Riano, 2011, citing
Icasiano v. Sandiganbayan, G.R. No. 95642, May 28, 1992).
11. DJ applies to Quasi-offenses: as in the famous Ivler case.279
12. Dismissal v. Acquittal
Dismissal Acquittal
Does not decide on the merits, does not Always based on the merits. Defendant is
determine the defendant’s guilt or acquitted because guilt was not proven beyond
innocence. reasonable doubt.
Double jeopardy will not always attach. Double jeopardy always attaches.
13. Rules on the application of double jeopardy on State witnesses: ******An

order discharging an accused as a State witness amounts to an acquittal, hence
double jeopardy will apply. However, if he fails or refuses to testify against
his co-accused in accordance with his sworn statement, he may be prosecuted
again.
5.9.2. Distinguish MTQ from demurrer to evidence280

MOTION TO QUASH DEMURRER TO EVIDENCE
279 As a result of vehicular mishap, petitioner was charged before the MTC of two separate offenses in two
informations: Reckless imprudence resulting in slight physical injuries; and Reckless imprudence resulting in
homicide and damage to property for the death of the husband of the respondent and damage to the vehicle.
Petitioner pleaded guilty to the first information and was punished only by public censure. Invoking such
conviction, petitioner now moves for the quashal of the other information on the ground of double jeopardy.
Does double jeopardy apply to quasi offenses?
YES. ****The two charges arose from the same facts and were prosecuted under the same
provision of the RPC, namely Art. 365. The doctrine is that reckless imprudence under Art. 365 is a single
quasi-offense by itself and not merely a means to commit other crimes. Hence, conviction or acquittal of
such quasi offense bars subsequent prosecution for the same quasi offense, regardless of its various
resulting acts (Ivler v. Modesto- San Pedro, G.R. No. 172716, November 17, 2010).
[] Bar 2014: A: McJolly correctly interposed the defense of double jeopardy. ******Reckless imprudence
under Article 365 is a quasi-offense by itself and not merely a means to commit other crimes, such that
conviction or acquittal of such quasi-offense already bars subsequent prosecution for the same quasi-
offense, regardless of its various resulting acts (Ivler v. Hon, Modesto-San Pedro, G.R. No. 172716,
November 17, 2010).
280 Which of the following distinguishes a motion to quash from a demurrer to evidence? (2013 BAR)
(A) A motion to quash a complaint or information is fi led before the prosecution rests its case.
(B) A motion to quash may be fi led with or without leave of court, at the discretion of the accused.
(C) When a motion to quash is granted, a dismissal of the case will not necessarily follow.
Filed before the defendant enters his plea. Filed after the prosecution has rested its case.
Does not go into the merits of the case but is Based upon the inadequacy of the evidence
anchored on matters not directly related to the adduced by the prosecution in support of the
question of guilt or innocence of the accused. accusation.
Governed by Rule 117 of the Rules of Court. Governed by Rule 119 of the Rules of Court.
Does not require a prior leave of court. May be filed by the accused either with leave or
without leave of court.
5.9.3. Effects of sustaining the motion to quash

1. Effects of sustaining a MTQ:281
a. If the court sustains the motion, the accused remains in custody if, at
the time, he is under detention, unless he is admitted to bail.
b. If no order to that effect is made, or if so made, no information is filed
within the time specified in the order or within such further time allowed upon
showing a good cause, the accused must be set free, unless he is also under
custody by reason of some other charge.
c. If the motion to quash is sustained upon any of the following grounds,
the court must state, in its order granting the motion, the release of the accused if
he is in custody, or the cancellation of his bond if he is out on bail:
i. That a criminal action or liability has been extinguished;
ii. That it contains averments which, if true, would constitute a legal
excuse or justification; or
iii. That the accused has been previously convicted or acquitted of
the offense charged.
d. *****If the ground upon which the motion to quash was sustained is that
the court has no jurisdiction over the offense, the better practice is for the court
(D) The grounds for a motion to quash are also grounds for a demurrer to evidence.
(E) The above choices are all wrong.
281
[] Bar 1994: Chato is charged with the murder of Velay. Before arraignment, you, as counsel de
officio of Chato, discovered that the information failed to allege any qualifying circumstances.
a. How may you properly object the insufficiency of the information, and on what ground? As
counsel de officio for the accused, I can file a motion to quash based on the ground that the facts
charged do not constitute the crime of murder there being no qualifying circumstances alleged
(Sec. 3(a) Rule 117).
b. May you still avail of that remedy after Chato has entered her plea? After Chato has entered
her plea, she may still move to quash because she is not deemed to have waived such objection
(Sec. 9, Rule 117).
c. What course or courses of action may the court take if it sustains the remedy you seek?
****If the court sustains the motion to quash, the court may order that another information be
filed. If the accused is in custody, he shall remain so unless he shall be admitted to bail. If the information
is not filed within the time specified, or within the time specified in the order, or within such further time as the court may
allow for good cause shown, the accused, if in custody, shall be discharged therefrom unless he is also in
custody on some other charge (Sec. 5, Rule 117).
to remand or forward the case to the proper court, not to quash the complaint
or information.
e. If the ground of the motion is either:
i. That the facts charged do not constitute an offense;
ii. That the officer who filed the information had no authority to do
so; 282
iii. That it does not conform substantially to the prescribed form; or

iv. That more than one offense is charged
—then the court should order the prosecution to file another
information or an amendment thereof, as the case may be, with a definite
period, the order further stating that in case of failure to comply therewith, the
accused if he is in custody shall be discharged, or his bond cancelled if he is
bonded (Pamaran, 2010).
2. Q: Is the order denying the motion to quash appealable?
a. GR: NO. It is interlocutory and not appealable. ****Certiorari and
prohibition are not the correct remedies against an order denying a motion to
quash. The defendant should instead go to trial and raise the special defense
he had invoked in his motion. And if after trial on the merits, an adverse decision
is rendered, remedy is to appeal in the manner authorized by law (Bulaong v. CA,
G.R. No. 78555, January 30, 1990).
b. XPNs:
i. The act has ceased to be an offense;
ii. When intervention by higher court is required for the orderly
administration of justice or in the interest of both the accused and the public;
iii. It is unfair and unjust to make the accused go to trial;
iv. When the circumstances warrant that technicalities of
procedure should be set aside;
v. If the court denying the motion to quash acted without or in
excess of jurisdiction or with grave abuse of discretion.
3. Procedure when the motion to quash is denied
a. The accused should plead;
282
[] Bar 2000: Bimby is charged with illegal possession of firearms under an Information signed by the
Provincial Prosecutor. After arraignment but before pre-trial, he found out that the Provincial
Prosecutor had no authority to sign and file the Information as it was the City Prosecutor who has
such authority. During the pre-trial, Bimby moves that the case against him be dismissed on the
ground that the information is defective because the officer signing it lacked the authority to do so.
The Provincial Prosecutor opposes the motion on the ground of estoppel as Bimby did not move
to quash the Information before arraignment. If you are the counsel for Bimby, what is your
argument to refute the opposition of the Provincial Prosecutor?
I would argue that since the Provincial Prosecutor had no authority to file the information,
the court did not acquire jurisdiction over the person of the accused and over the subject matter
of the offense charged. Hence, this ground is not waived if not raised in a motion to quash and
could be raised at the pre-trial (People v. Hon. Zeida Aurora Garfin, G.R. No. 153176, March 29,
2004).
b. Accused should go to trial without prejudice to the special defenses

he invoked in the motion;
c. Appeal from the judgment of conviction, if any, and interpose the
denial of the motion as an error.
5.9.4. Exception to the rule that sustaining the motion is not a bar to
another prosecution
1. GR: An order sustaining the motion to quash is not a bar to another
prosecution for the same offense.
2. ****XPNs:
a. Double jeopardy; or
b. Criminal liability is extinguished (Sec. 6, Rule 117).
5.9.5. Provisional dismissal283

1. Requisites of provisional dismissal****
a. There must be a motion by the prosecution with the EXPRESS284
conformity285 of the accused,286 or by the accused himself, or by both the
prosecution and the accused for a provisional dismissal of the case;
b. The offended party is NOTIFIED of the motion for a provisional
dismissal of the case; NB: the offended party does not have to give his consent—
he only has to be notified of the motion.287
283 *The concept of provisional dismissal contemplates that the dismissal of the criminal action is not
permanent and can be revived within the period set by the Rules of Court.
284 *****Why is the express consent of the accused needed? So that he cannot invoke Double Jeopard later on
when the case is revived.

285 [] EXPRESS CONSENT: It must be a positive, direct, unequivocal consent requiring no inference or
implication to supplying its meaning. *****The mere inaction or silence of the accused or his failure to
object to a provisional dismissal of the case does not amount to express consent.
286
[] Bar 2002: In a prosecution for robbery against Adrian, the prosecutor moved for the
postponement of the first scheduled hearing on the ground that he had lost his records of the case.
The court granted this motion but, when the new date of trial arrived, the prosecutor alleging that
he could not locate his witnesses, moved for the provisional dismissal of the case. ****If
Adrian’s counsel does not object, may the court grant the motion of the prosecutor? Why?
NO. ******A case cannot be provisionally dismissed except upon the EXPRESS
CONSENT of the accused and with notice to the offended party.
287
[] Bar 2003: Before the arraignment for the crime of murder, the private complainant executed an
Affidavit of Desistance stating the she was not sure if the accused was the man who killed her
husband. The public prosecutor filed a Motion to Quash the Information on the ground that with
private complainant’s desistance, he did not have evidence sufficient to convict the accused. On
January 2, 2001, the court without further proceedings granted the motion and provisionally
dismissed the case. The accused gave his express consent to the provisional dismissal of the case.
The offended party was notified of the dismissal but she refused to give her consent.
Subsequently, the private complainant urged the public prosecutor to refile the murder charge
because the accused failed to pay the consideration which he had promised for the execution of
the Affidavit of Desistance. The public prosecutor obliged and refiled the murder charge against the
accused on February 1, 2003. The accused filed a Motion to Quash the Information on the ground that
c. The court issues an ORDER granting the motion and dismissing the
case provisionally;
d. The public prosecutor is SERVED with a copy of the order of
provisional dismissal of the case (People v. Lacson, et al., G.R. No. 149453, April
1, 2003).
2. Rule on provisional dismissal of a case
a. GR: Where the case was dismissed provisionally with the consent of the
accused, he cannot invoke double jeopardy in another prosecution therefor or
where the case was reinstated on a motion for reconsideration by the prosecution.
b. ******XPNs: The dismissal amounts to an acquittal even if the
dismissal was ordered at the instance of the defendant if it is based on:
i. Lack or insufficiency of evidence
ii. If the same was predicated upon the right of the accused to a
speedy trial, hence, even if the accused gave his express consent to such dismissal
or moved for dismissal, such consent would be immaterial as such dismissal
is actually an acquittal
iii. There is variance between the proof and the allegations in the
complaint or information
3. ****Period when provisional dismissal becomes permanent—The dismissal
shall become PERMANENT if:
a. The case is not revived within 1 year after the issuance of the order of
provisional dismissal (NB: ****not from notice to the public prosecutor) with respect
to offenses punishable by imprisonment not exceeding 6 years or a fine of any
amount or both; or
b. The case is not revived within 2 years after the issuance of the order of
provisional dismissal with respect to offenses punishable by imprisonment of
more than 6 years288 (Sec. 8, Rule 117).
*Thus, within the periods stated, the prosecution has to revive the case if
it desires to prevent the provisional dismissal becoming permanent and the
revival of the case being time-barred. *****This is known as the TIME BAR
RULE. If no revival of the case is made within the prescribed period, the
dismissal shall be removed from being provisional and becomes permanent.
******The State may revive a criminal case beyond the one-year or two-
the provisional dismissal of the case had already become permanent. Was the provisional dismissal of
the case proper?
YES. *****The provisional dismissal of the case was proper because the accused gave his
express consent thereto and the offended party was notified. It was NOT NECESSARY FOR THE
OFFENDED PARTY TO GIVE HER CONSENT thereto (Sec. 8, Rule 117).
288A pending criminal case, dismissed provisionally, shall be deemed permanently dismissed if not revived after
2 years with respect to offenses punishable by imprisonment (2011 BAR)
(A) of more than 12 years.
(B) not exceeding 6 years or a fine not exceeding P1,000.00.
(C) of more than 6 years or a fine in excess of P1,000.00.
(D) of more than 6 years.
year periods, provided there is justifiable necessity for the delay, and subject to
the right of the accused to oppose the same on the ground of double
jeopardy, or that such revival or refiling is barred by the statute of limitations
(People v. Lacson, G.R. No. 149453, October 7, 2003).
4. Provisional dismissal under A.M. No. 12-11-2-SC (Guidelines for
DECONGESTING Holding Jails by Enforcing the Rights of Accused
Persons to Bail and to Speedy Trial)
a. When the delays are due to the absence of an essential witness whose
whereabouts are unknown or cannot be determined and, therefore, are subject to exclusion
in determining if, with the prescribed time limits which caused the trial to exceed 180 days,
the court shall provisionally dismiss the action with the express consent of
the detained accused.
b. When the delays are due to the absence of an essential witness whose
presence cannot be obtained by due diligence though his whereabouts are known, the
court shall provisionally dismiss the action with the express consent of the
detained accused provided:
i. The hearing in the case has been previously TWICE postponed
due to the non-appearance of the essential witness and both the witness and
the offended party, if they are two different persons, have been given notice of
the setting of the case for THIRD HEARING, which notice contains a
WARNING that the case would be dismissed if the essential witness
continues to be absent; and
ii. There is proof of service of the pertinent notices of hearings or
subpoenas upon the essential witness and the offended party at their last
known postal or e-mail addresses or mobile phone numbers.
c. For the above purpose, the public or private prosecutor shall first
present during the trial the essential witness or witnesses to the case before
anyone else. An essential witness is one whose testimony dwells on the
presence of SOME OR ALL of the elements of the crime and whose
testimony is INDISPENSABLE to the conviction of the accused (Sec. 10,
A.M. No. 12-11-2-SC).
5. RECKONING PERIOD of one or two year period for revival of criminal
case: The one or two year period allowed for reviving a criminal case that has been
provisionally dismissed shall be ****reckoned from the ISSUANCE of the
order of dismissal.The dismissal shall become AUTOMATICALLY
PERMANENT if the case is not revived within the required period. Such
permanent dismissal shall amount to an adjudication of the case on the merits
(Sec. 14, A.M. No. 12-11-2-SC).
———————————————————————————————
5.10. Pre-trial [Rule 118]
5.10.1. Matters to be considered during pre-trial 228

5.10.2. What the court should do when prosecution and offended party agree to the plea offered by
the accused 228
5.10.3. Pre-trial agreement 231
5.10.4. Non-appearance during pre-trial 231
5.10.5. Pre-trial order (PTO) 231
5.10.6. Referral of some cases for court annexed mediation and judicial dispute resolution 232
———————————————————————————————
BACKGROUNDER ON PRE-TRIAL
1. Importance of pre-trial: It is the purpose of the Pre-trial Conference to
simplify the issues, shape up the testimonial and documentary evidence and
generally clear the decks for the trial (Irving Trust Company v. US, 221 F.2D 303,
April 5, 1955).
2. Pre-trial is MANDATORY in all criminal cases cognizable by the
a. Sandiganbayan;
b. RTC;
c. Metropolitan Trial Court;
d. Municipal Trial Court in Cities;
e. Municipal Trial Court and Municipal Circuit Trial Court (Sec. 1, Rule
118).
*It is also mandatory in civil cases.
3. Bar 1997: Pre-trial in Civil vs. Criminal cases: Both are mandatory. See table in
CivPro, supra.
5.10.1. Matters to be considered during pre-trial

1. Matters to be considered during pre-trial:
a. Plea bargaining;
b. Stipulation of facts;
*****In order for the accused to be bound, it must be signed by
him and his counsel.289 In Civil cases, however, there is no need to sign.
289 Q: Bembol was charged with rape. Bembol’s father, Ramil, approached Artemon, the victim’s father, during
the preliminary investigation and offered P1 Million to Artemon to settle the case. Artemon refused the offer.
xxx During the pre-trial, Bembol personally offered to settle the case for P1 Million to the private prosecutor,
who immediately put the offer on record in the presence of the trial judge. Is Bembol’s offer a judicial
admission of his guilt? (3%)(2008 Bar Question) SUGGESTED ANSWER:
No. *****The offer is not a judicial admission of guilt because it has not been reduced in writing
or signed by the accused. The Rule on pre-trial in criminal cases (Rule 118, Sec. 2, Rules of Court) requires that
all agreements or admissions made or entered during the pre-trial conference shall be reduced in writing
and signed by the accused and counsel, otherwise, they cannot be used against the accused.
c. Marking for identification of evidence of parties;

d. Waiver of objections to admissibility of evidence;
e. Modification of the order of the trial if one of the accused admits the
charge but interposes a lawful defense (reverse trial); and
f. Such other matters as will promote a fair and expeditious trial of the
civil and criminal aspects of the case (Sec. 1).
****During the preliminary conference, the branch clerk of court shall assist
the parties in reaching a settlement of the civil aspect of the case, mark the
documents to be presented as exhibits and copies thereof attached to the records
after comparison, ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of documents marked as
exhibits and consider such other matters as may aid in the prompt disposition of
the case. The proceedings during the preliminary conference shall be recorded in
the minutes of preliminary conference to be signed by both parties and counsel.
The minutes of preliminary conference and the exhibits shall be attached
by the branch clerk of court to the case record before the pre-trial (A.M. No. 03-
1-09-SC). If the accused has pleaded not guilty to the crime charged, he may
state whether he interposes 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 (Sec. 3, Speedy
Trial Act).
2. Period of pre-trial: After arraignment and within 30 days from the date the
court acquires jurisdiction over the person of the accused unless a shorter period is
provided by special laws or circulars of the Supreme Court (Sec. 1, Rule 118).
3. Contents of the order for pre-trial conference—It must contain orders:
a. Requiring the private offended party to appear thereat for purposes of
plea-bargaining and for other matters requiring his presence;
[] ****Under R.A. 8493, the absence during pre-trial of any witness
for the prosecution listed in the Information, whether or not said witness is the
offended party or the complaining witness, is not a valid ground for the
dismissal of a criminal case. Although under the law, pre-trial is mandatory in
criminal cases, the presence of the private complainant or the complaining
witness is however not required. Even the presence of the accused is not
required unless directed by the trial court. It is enough that the accused is
represented by his counsel. [People vs Tac-an, February 27, 2003]
b. Referring the case to the branch clerk of court, if warranted, for a
preliminary conference to be set at least 3 days prior to the pre-trial to mark
the documents or exhibits to be presented by the parties and copies thereof to
be attached to the records after comparison and to consider other matters as may
aid in its prompt disposition; and
c. Informing the parties that no evidence shall be allowed to be
presented and offered during the trial other than those identified and marked
during the pre-trial except when allowed by the court for good cause shown.
In mediatable cases, the judge shall refer the parties and their counsel to
the Philippine Mediation Center unit for purposes of mediation if available
(A.M. No. 03-1-09-SC).
4. FORM of a valid pre-trial agreement: The pre-trial agreement must be in
writing and signed by both the accused and his counsel. If the required form
is not observed, the pre-trial agreement cannot be used against the accused (Sec. 2,
Rule 118).
The agreements covering the matters in the pre-trial conference shall be
approved by the court.
ON PLEA-BARGAINING
1. It is the process whereby the accused, the offended party and the
prosecution work out a mutually satisfactory disposition of the case subject
to court approval. It usually involves
a. the defendant’s pleading guilty to a lesser offense
b. or to only one or some of the counts of a multi-count indictment
*in return for a lighter sentence than that for the graver charge.
2. Instance when plea-bargaining not applicable: In violations of the
Dangerous Drugs Act regardless of the imposable penalty (Sec. 23, RA 9165).
3. Action of the court when plea bargaining fails
a. Adopt the minutes of preliminary conference as part of the pre-trial
proceedings, confirm markings of exhibits or substituted photocopies and
admissions on the genuineness and due execution of documents and list object
and testimonial evidence;
b. Scrutinize every allegation of the information and the statements in the
affidavits and other documents which form part of the record of the preliminary
investigation and other documents identified and marked as exhibits in
determining further admissions of facts, documents and in particular as to the
following:
i. The identity of the accused;
ii. Court’s territorial jurisdiction relative to the offense/s charged;
iii. Qualification of expert witness;
iv. Amount of damages;
v. Genuineness and due execution of documents;
vi. The cause of death or injury, in proper cases;
vii. Adoption of any evidence presented during the preliminary
investigation;
viii. Disclosure of defenses of alibi, insanity, self-defense, exercise of
public authority and justifying or exempting circumstances; and
ix. Such other matters that would limit the facts in issue.
c. Define factual and legal issues;
d. Ask parties to agree on the specific trial dates and adhere to the flow
chart determined by the court which shall contain the time frames for the
different stages of the proceeding up to promulgation of decision and use the time
frame for each stage in setting the trial dates;
e. Require the parties to submit to the Branch COC the names,
addresses and contact numbers of witnesses that need to be summoned by
subpoena; and
f. Consider modification of order of trial if the accused admits the charge
but interposes a lawful defense (A.M. No. 03-1-09-SC).
5.10.2. What the court should do when prosecution and offended party
agree to the plea offered by the accused
*The court shall:
1. Issue an ORDER which contains the plea bargaining arrived at;
2. Proceed to receive evidence on the CIVIL aspect of the case; and
3. Render and promulgate judgment of CONVICTION, including the civil
liability or damages duly established by the evidence (A.M. No. 03-1-09-SC).
5.10.3. Pre-trial agreement

1. All agreements or admissions made or entered into during the pre- trial
conference shall be reduced to writing and signed by the accused and
counsel, otherwise the same shall not be used as evidence against the accused.
[] ****Requisites before a pre-trial agreement may be used as evidence
a. They are reduced into writing;
b. The pre-trial agreement is signed by the accused and his counsel
2. The agreements in relation to matters referred to in Sec. 2, (i.e, Plea bargaining,
Stipulation of Facts, Marking for Identification of evidence of parties, Waiver of
objections to admissibility of evidence, and other matters as will promote a fair
and expeditious trial) are subject to the approval of the court. Provided, that the
agreement on the plea of the accused to a lesser offense may only be revised, modified, or
annulled by the court when the same is contrary to law, public morals, or
public policy (Sec. 3, Speedy Trial Act of 1998).
[] The requirement of Sec. 2 is intended to safeguard the right of the
accused against IMPROVIDENT or UNAUTHORIZED agreements or
admissions which his counsel may have entered into, or which any person may
have ascribe to the accused without his knowledge, as he may have waived his
presence at the pre-trial conference (People vs. Uy, G.R. No. 128046, March 7,
2000).
3. Pretrial may be amended on the grounds of:
a. Agreement; or
b. Palpable mistake
5.10.4. Non-appearance during pre-trial

1. Effect of non-appearance of counsel for the accused or the prosecutor
during the pre-trial without valid justification: Where counsel for the accused or
the prosecutor does not appear at the pre-trial conference and does not offer an
acceptable excuse for his lack of cooperation, the court may impose proper
sanctions or penalties in the form of
a. reprimand,
b. fines or
c. imprisonment if he does not offer an acceptable excuse for his lack of
cooperation (Sec. 3, Rule 118; Sec. 5, Speedy Trial Act).
2. Rationale of the EXCLUSION of the accused in the mandatory appearance
during pre-trial: The principal reason why the accused is not included in the
mandatory appearance is the fear that to include him is to violate his
CONSTITUTIONAL RIGHT TO REMAIN SILENT (Sec. 12(1), Art. III,
1987 Constitution).
[] Unless otherwise required by the court, personal appearance of the
accused at the conference is not indispensable. This is aside from the
consideration that the accused may waive his presence at all stages of the criminal
action, except at the arraignment, promulgation of judgment or when required to
appear for identification (Regalado, 2008).
5.10.5. Pre-trial order (PTO)

1. PTO: It is an order issued by the court reciting the actions taken, the facts
stipulated and the evidence marked during the pre-trial conference (Sec. 4, Rule
118).
2. Purpose and effect of the pre-trial order: Such order shall
a. BIND THE PARTIES,
b. limit the trial to those matters not disposed of, and
c. control the course of the action during the trial,
*unless modified by the court to prevent manifest injustice (Ibid.; Sec.
5, Speedy Trial Act of 1998). To prevent manifest injustice, however, the pre-trial
order may be modified by the court, upon its own initiative or at the instance
of any party.
3. Period for the trial judge to issue a pre-trial order and its contents: It must be
issued within 10 days after the termination of the pre-trial. It shall set forth the
following:
a. Actions taken during the pre-trial conference;
b. Facts stipulated; admissions made;
c. Evidence marked; and
d. Number of witnesses to be presented and the schedule of trial (Sec. 4,
Rule 118).
5.10.6. Referral of some cases for court annexed mediation and judicial
dispute resolution
1. Purpose of Court Annexed Mediation (CAM) and Judicial Dispute Resolution
(JDR)
a. The diversion of pending court cases both to CAM and to JDR is plainly
intended to put an end to pending litigation through a compromise agreement
of the parties and thereby help solve the ever-pressing problem of court
docket congestion. It is also intended to empower the parties to resolve their
own disputes and give practical effect to the State Policy expressly stated in
the ADR Act of 2004 (RA 9285), to wit:
b. “To actively promote PARTY AUTONOMY in the resolution of
disputes or the freedom of the parties to make their own arrangement to resolve
disputes. Towards this end, the State shall encourage and actively promote the
use of Alternative Dispute Resolution (ADR) as an important means to
****achieve speedy and impartial justice and de-clog court dockets.”
[] Effect of the referral of the case to CAM and JDR: The period during
which the case is undergoing mediation shall be excluded from the regular and
mandatory periods for trial and rendition of judgment in ordinary cases and in
cases under summary proceedings.
[] Procedure after the parties reached a settlement:
a. If full settlement of the dispute is reached, the parties, assisted by their
respective counsels, shall draft the compromise agreement which shall be
submitted to the court for judgment upon compromise or other appropriate
action. Where compliance is forthwith made, the parties shall instead submit a
satisfaction of claims or a mutual withdrawal of the case and, thereafter, the
court shall enter an order dismissing the case.
b. If partial settlement is reached, the parties shall, with the assistance of
counsel, submit the terms thereof for the appropriate action of the court, without
waiting for resolution of the unsettled part.
[] Effect of the non- compliance of the other party with the agreement
reached: The court which approved the compromise agreement must be
informed immediately for it to issue an order to comply. Sanctions will be
imposed for non-compliance. The aggrieved party may also apply for a WRIT
OF EXECUTION.
2. JDR—ROLES OF THE JUDGE in mediation
a. The pre-trial judge will rule on the compromise agreement reached
through mediation. ****If court-annexed mediation fails, the pre-trial judge takes on
the role of CONCILIATOR, NEUTRAL EVALUATOR and MEDIATOR.
b. The judge will sit down with counsel and their parties to hear a summary
of the case and will attempt to conciliate the differences between the parties.
As a neutral evaluator, the judge will be free to express his views on the chances of
each party in the case. At this point, if the parties agree to reconsider and undergo
mediation, the judge will facilitate the settlement as a mediator. If the parties
still refuse mediation, however, the judge will then issue an order referring the case
to another judge. The order will specify that both CAM and JDR have failed.
[] Availability of JDR even during trial: Cases may be referred to JDR even
during the trial stage upon written motion of one or both parties indicating
willingness to discuss a possible compromise. If the motion is granted, the trial
shall be suspended and the case referred to JDR, which shall be conducted by
another judge through raffle in multiple sala courts.
3. THREE STAGES OF DIVERSION of cases to CAM and JDR*****
a. CAM: The first stage is the CAM where the judge refers the parties to
the Philippine Mediation Center (PMC) for the mediation of their dispute by
trained and accredited mediators.
[] Duration of mediation in the PMC: The Mediator shall have a
period of not exceeding 30 days to complete the mediation process. Such period
shall be computed from the date when the parties first appeared for the
initial conference as stated in the Order to appear. An extended period of
another 30 days may be granted by the court, upon motion filed by the Mediator,
with the conformity of the parties.
[] Consequence of failure of one party to participate in mediation:
Once the court determines that the case is mediatable, the parties are compelled to
appear before the PMC unit. If the complainant fails to appear for mediation,
the case may be dismissed. If the defendant is absent, the court will then
decide the case on the basis of what was presented by the plaintiff alone.
b. JDR: Upon failing to secure a settlement of the dispute during the first
stage, a second attempt is made at the JDR stage. There, the JDR judge
sequentially becomes a mediator conciliator-early neutral evaluator in a
continuing effort to secure a settlement. Still failing that second attempt, the
mediator-judge must turn over the case to another judge (a new one by raffle
or nearest/pair judge) who will try the unsettled case. The trial judge shall
continue with the pre-trial proper and, thereafter, proceed to try and decide the
case.
c. ACM: The third stage is during the appeal where covered cases are
referred to the PMC-Appeals Court Mediation (ACM) unit for mediation.
4. ******CASES COVERED by CAM and JDR—The following cases shall be
(1) referred to CAM and (2) be the subject of JDR proceedings:
a. All civil cases and the civil liability of criminal cases covered by the
Rule on Summary Procedure, including the civil liability for violation of BP
22, except those which by law may not be compromised;
b. Special proceedings for the settlement of estates;
c. All civil and CRIMINAL cases filed with a CERTIFICATE TO
FILE ACTION issued by the Punong Barangay or the Pangkat ng
Tagapagkasundo under the Revised Katarungang Pambarangay Law;
d. The civil aspect of Quasi-Offenses under Title 14 of the RPC;
e. The civil aspect of less grave felonies punishable by correctional
penalties not exceeding 6 years imprisonment where the offended party is a
private person;
f. The civil aspect of estafa, theft and libel;
g. All civil cases and probate proceedings, testate and intestate, brought
on appeal from the exclusive and original jurisdiction granted to the first level
courts under Sec. 33(1) of the Judiciary Reorganization Act of 1980;
h. ****All cases of forcible entry and unlawful detainer brought on
appeal from the exclusive and original jurisdiction granted to the first level courts
under Sec. 33(2) of the Judiciary Reorganization Act of 1980;
i. All civil cases involving title to or possession of real property or an
interest therein brought on appeal from the exclusive and original jurisdiction
granted to the first level courts under Sec. 33(3) of the Judiciary Reorganization
Act of 1980; and
j. ****All HABEAS CORPUS cases decided by the first level courts in
the absence of the RTC judge that are brought up on appeal from the special
jurisdiction granted to the first level courts under Sec. 35 of the Judiciary
Reorganization Act of 1980.
5. CAM vs. COURT REFERRED MEDIATION (CRM)
CAM CRM
Any mediation process conducted under A mediation ordered by a court to be conducted in accordance
the auspices of the court that has with the agreement of the parties when an action is
acquired jurisdiction of the dispute. prematurely commenced in violation of such agreement
6. Cases which CANNOT be referred to CAM and JDR******

a. Civil cases which by law cannot be compromised (Art. 2035, NCC);
b. Other criminal cases not covered under paragraphs c to f above;
c. Habeas Corpus petitions;
d. **All cases under RA 9262 (Violence against Women and Children); and
e. Cases with pending application for Restraining Orders/Preliminary
Injunctions.
[] However, in cases covered under a, d and e where the parties inform the
court that they have agreed to undergo mediation on some aspects thereof,
e.g., custody of minor children, separation of property, or support pendent lite,
the court shall refer them to mediation.
7. Remedy if the case is NOT RESOLVED during JDR
a. MULTIPLE SALA COURT – If the case is not resolved during the
JDR, the case shall be raffled to another branch for the pre-trial proper until
judgment. ****For cases with pending applications for restraining
orders/preliminary injunctions, the judge to whom the case was raffled shall
rule on the said applications. During the pre-trial stage, the judge refers the case to
CAM, but if the parties do not settle at CAM, the case will be raffled to another
branch for JDR. If the parties do not settle at JDR, the case will be returned to the
branch that ruled on the applications for the pre-trial proper and up to judgment.
b. SINGLE SALA court – Unless otherwise agreed upon as provided, the
JDR proceedings will be conducted by the judge of the pair court, if any,
otherwise, by the judge of the nearest court as determined by the concerned
Executive Judge. The JDR proceedings shall be conducted at the station where
the case was originally filed. The result of the JDR proceedings shall be referred
to the court of origin for appropriate action, e.g. approval of the compromise
agreement, trial, etc. Notwithstanding the foregoing, before the commencement
of the JDR proceedings, the parties may file a joint written motion requesting
that the court of origin conduct the JDR proceedings and trial.
c. FAMILY COURT – Unless otherwise agreed upon as provided below,
the JDR proceedings in areas where only one court is designated as a family
court, shall be conducted by a judge of another branch through raffle.
However, if there is another family court in the same area, the family court to
whom the case was originally raffled shall conduct JDR proceedings and if no
settlement is reached, the other family court shall conduct the pre-trial proper and
trial. Notwithstanding the foregoing, before commencement of the JDR
proceedings, the parties may file a joint written motion requesting that the
family court to which the case was originally raffled shall conduct the JDR
proceedings and trial. Despite the non-mediatable nature of the principal case, like
annulment of marriage, other issues such as custody of children, support,
visitation, property relations and guardianship, may be referred to CAM
and JDR to limit the issues for trial.
d. Commercial, intellectual property and environmental courts – Unless
otherwise agreed upon as provided below, the JDR proceedings in areas where
only one court is designated as commercial / intellectual property /
environmental court, hereafter referred to as special court, shall be conducted
by another judge through raffle and not by the judge of the special court.
Where settlement is not reached, the judge of the special court shall be the trial
judge. Any incident or motion filed before the pre-trial stage shall be dealt with by
the special court that shall refer the case to CAM. Notwithstanding the foregoing,
before commencement of the JDR proceedings, the parties may file a joint written
motion requesting that the special courts to which the case was originally raffled
shall conduct the JDR proceedings and trial.
8. APPELLATE COURT MEDIATION (ACM)
a. It is a mediation program in the CA, corollary to CAM in the lower
courts. It provides a conciliatory approach in conflict resolution. Through
ACM, the CA promotes a PARADIGM SHIFT in resolving disputes from a
right-based (judicial) to an interest-based (mediation) process.
b. Persons qualified to serve as mediator in appellate court mediation:
Only an Appellate Mediator who is trained and accredited by the Philippine
Judicial Academy (PHILJA) can mediate in the CA. As a basic qualification,
he/she must be a retired justice, judge, senior member of the Bar, or senior
law professor, who possesses creative problem-solving skills and has strong
interest in mediation.
c. Some nuances:
i. The ponente in ACM issues a resolution directing the parties to
appear to the PMC-CA without counsel to consider the possibility of mediation.

This resolutions suspends the running of the period to file an appellate brief.
8. DISTINCTION among CAM, JDR and ACM
CAM JDR ACM
A case eligible for mediation at a First The mediation process (in the lower courts) is The case
Level Court or RTC during the pre- conducted just like in CAM. If mediation fails has been
trial stage is referred by the presiding or the parties refuse mediation, the case goes tried and
judge to the PMC Unit for mediation. back to the judge who does not yet try the judgment
Mediation is successful if the parties case. The judge, acting sequentially as has been
enter into a Compromise Agreement, Conciliator, Neutral Evaluator and rendered at
and the judge renders a decision based Mediator or a combination of the three, the lower
on this agreement. If it fails or the attempts to convince the parties to settle their courts but
parties refuse to undergo mediation, case amicably. has been
the case goes back to court for trial. If the parties still refuse to settle, the case appealed to
goes back to court for trial. the CA.
———————————————————————————————
5.11. Trial [Rule 119]
5.11.1. Instances when presence of accused is required by law 238

5.11.2. Requisite before trial can be suspended on account of absence of witness 241
5.11.3. Trial in absentia 245
5.11.4. Remedy when accused is not brought to trial within the prescribed period 245
5.11.5. Requisites for discharge of accused to become a state witness 246
Witness Protection, Security and Benefit Act 246
5.11.6. Effects of discharge of accused as state witness 248
5.11.7. Demurrer to evidence 249
———————————————————————————————
BACKGROUNDER ON TRIAL
1. The examination before a competent tribunal according to the laws of the
land, of facts put in issue in a case for the purpose of determining such issue.
After a plea of not guilty is entered, the accused shall have at least 15
days290 to prepare for trial. The trial shall commence within 30 days from
receipt of pre-trial order (Sec. 1, Rule 119).
****Denial of this right to prepare is reversible error; the proper remedy
from a judgment of conviction under such case is appeal and not certiorari nor
habeas corpus (Montilla v. Arellano, G.R. No. 123872, Jan. 30, 1998).
2. HEARING: Hearing is not confined to trial, but embraces several stages of
litigation including the pre-trial stage. A hearing does not necessarily imply
the presentation of oral or documentary evidence in open court but that the
parties are afforded an opportunity to be heard (Republic v. Sandiganbayan,
G.R. No. 104768, July 21, 2003).
3. PROCEDURE OF TRIAL: The trial once commenced, shall continue from
day to day as far as practicable until terminated. However, it may be
postponed for a reasonable period of time for good cause (Sec. 2, Rule 119).
The granting or refusal of an application for continuance or postponement
of the trial lies within the sound discretion of the court and ****the discretion
will not be interfered with by mandamus or by appeal, unless there is grave abuse
of discretion.
[] Purpose of the CONTINUOUS TRIAL system: The purpose of the
system is to “expedite the decision or resolution of cases in the trial courts”
290 After a plea of not guilty is entered, the accused shall have _____ days to prepare for trial. (2012 BAR)
a. 15;
b. 10;
c. 30;
d. Noneoftheabove.
considering the mandate of Sec. 12, Art. XVIII of the 1987 Constitution. SC
Circular No. 1-89 requires that the “judge shall conduct the trial with utmost
dispatch, with judicious exercise of the court's power to control the trial to avoid
delay” and that “a strict policy on postponements shall be observed.”
The SC adopted the continuous trial system as a mode of judicial fact-
finding and adjudication conducted with speed and dispatch so that trials are held
on the scheduled dates without postponement, the factual issues for a trial well
defined at pre-trial and the whole proceedings terminated and ready for
judgment within 90 days from the date of initial hearing, unless for
meritorious reasons an extension is permitted.
[] Q: Petitioner assails the decision of the CA affirming the decision of the
RTC in denying his petition for postponement of the trial on account of the
absence of his witnesses to appear during trial. In deciding the case against
petitioner, the CA held that the RTC did not act in grave abuse of its discretion as
the petitioner failed to substantiate his motion for postponement as required by
the Rules. Is the CA correct? YES. ****As it is a well-settled rule that motions for
postponement are addressed to the sound discretion of the court and this
discretion would not be interfered with unless it has been clearly abused. In
order for the absence of a witness to justify the postponement of a trial, the
following must be shown: First, that the witness is really material and appears to
the court to be so; second, that the party who applies has been guilty of no
neglect; and third, that the witness can be held at the time to which the trial has
been deferred, and, incidentally, that no similar evidence could be obtained.
Further, the affidavit should contain a statement that the facts to which it is
claimed the absent witness would testify cannot be proved by any other
witnesses who are available, or by the exercise of diligence, could have been
made available to the applicant at the trial (Casilan vs. Gancayco, et. al., G.R. No.
L-10525, August 29, 1958).
[] Q: In an action to declare null and void the order of respondent judge
in dismissing the criminal cases, petitioner claims that said judge has lost
jurisdiction over the criminal cases by failure of the interested parties to
secure a written authority from the Chief Justice of the Supreme Court
authorizing the adjournment of the trial thereof beyond the three-month
period provided in Rule 22, Sec. 3 of the Revised Rules of Court. Is the petition
meritorious? NO. As the applicable rule on adjournments and postponements
in criminal cases is found not in Sec. 3, Rule 22 but in Sec. 2, Rule 119. ****The
only limitation expressed in Rule 119 is that the postponement of the trial of a
criminal case must be for 'GOOD CAUSE' shown and for such period of the
time as 'the ends of justice and the right of the defendant to a speedy trial
require. The GREATER FLEXIBILITY of the rule on postponements in
criminal actions was obviously based on the criterion in the early case of U.S. v.
Ramirez that the trial court is in criminal proceedings "the guardian of the
rights of the accused as well as those of the people at large, and should not
unduly force him to trial, nor for light causes jeopardize the rights or interests
of the public" and that "the discretion which the trial court exercises must be
judicial and not arbitrary" consistent with the ends of justice and the granting
of SUFFICIENT TIME AND OPPORTUNITY to both prosecution and
defense to present their witnesses and the right of the accused to a speedy trial
(People v. Catolico, G.R. Nos. L-31261-2-3-4-5, April 20, 1971).
4. ORDER OF TRIAL IN CRIMINAL CASES—In criminal cases, unless the
accused admits the act or omission charged in the complaint or information but
interposes a lawful defense, the trial shall proceed in the following order:
a. The prosecution shall present evidence to prove the charge and, in the
proper case, the civil liability.
b. The accused may present evidence to prove his defense, and damages,
if any, arising from the issuance of a provisional remedy in the case.
c. The prosecution and the defense may, in that order, present rebuttal
and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to
present additional evidence bearing upon the main issue.
[] Rebuttal evidence is any competent evidence to explain, repel,
counteract or disprove the adversary’s proof. It is receivable only where new
matters have been developed by the evidence of one of the parties and is
GENERALLY LIMITED TO A REPLY to new points.
d. Upon admission of the evidence (evidence-in-chief, rebuttal and
sur-rebuttal proof)of the parties, the case shall be deemed submitted for
decision unless the court directs them to argue orally or to submit written
memoranda (Sec. 11, Rule 119).
****The order of the trial may be modified when the accused admits the
act or omission charged in the complaint or information but interposes a lawful
defense (Sec. 11(e), Rule 119).
[] Bar 2007: What is reverse trial and when may it be resorted to? Explain
briefly: When the accused admits the act or omission charged in the
complaint or information but interposes a lawful defense, the trial court may
allow the accused to present his defense first and thereafter give the
prosecution an opportunity to present its rebuttal evidence. A departure from
the order of the trial is not reversible error as where it was agreed upon or not
seasonably objected to, but not where the change in order of the trial was timely
objected by the defense.
Where the order of the trial set forth was not followed by the court to the
extent of denying the prosecution an opportunity to present evidence, the
judgment is a nullity. If there is not enough evidence to prove the accused’s
guilt beyond reasonable doubt, then the defense should file demurrer to
evidence.
5. Right and opportunity to adduce additional evidence: If the judge is not
satisfied with the evidence adduced in criminal cases, he may, on his motion,
call witnesses or recall some of the same witnesses for the purpose of
satisfying his mind with the reference to particular facts involved in the case.
5.11.1. Instances when presence of accused is required by law

1. Instances when presence of accused is required by law:
a. Upon arraignment and in entering plea;
b. During trial when his presence is necessary for the purpose of
identification;
c. Upon promulgation of judgment except for light offenses
d. When the court with due notice requires so (People v. Joven De Grano,
et. al, G.R. No. 167710, June 5, 2009).
2. TIME LIMIT for the trial of criminal cases
****GR: Trial shall not exceed 180 days from the first day of trial.
XPNs:
a. Those governed by the rules on summary procedure;
b, Those where the penalty prescribed by law does not exceed 6 months
imprisonment or a fine of P1,000 or both; and
c. Those authorized by the Chief Justice of the SC (Sec. 6, RA 8493,
Speedy Trial Act).
[] Effect of court's failure to comply with the mandates of the Speedy Trial
Act to terminate the case within the 180 day period: The judge may be charged
administratively, or may be fined, suspended or removed unless his failure to
comply with the speedy trial act is for reasons not attributable to him.
[] Cases where the time limitation is inapplicable
a. When the offended party is about to depart with no definite date of
return;
b. Child abuse cases (Sec. 32, RA 7610 or The Child Abuse Act);
c. Violations of Dangerous Drugs Law; and
d. Kidnapping, robbery by a band, robbery against banking or financial
institution, violation of Carnapping Act and other heinous crimes (Herrera,
2007).
3. Duties of the Presiding Judge under the continuous trial system
a. Adhere faithfully to the session hours prescribed by laws;
b. Maintain full control of the proceedings;
c. Effectively allocate and use time and court resources to avoid court
delays; and
d. Continuous trial on a weekly or other short-term trial calendar at earliest
possible time.
4. ****Exclusions in computation of time within which trial must commence:
a. Any periods of delay resulting from other proceedings concerning the
accused, including but not limited to the following:
i. Examination of the physical and mental condition of the accused;
ii. Proceedings with respect to other criminal charges against the
accused;
iii. Extraordinary remedies against interlocutory orders;

iv. Pre-trial proceedings; provided, that the delay does not exceed
30 days;
v. Orders of inhibition, or proceedings relating to change of venue
of cases or transfer from other courts;
vi. A finding of the existence of a prejudicial question;
vii. Reasonably attributable to any period, not to exceed 30 days,
during which any proceeding concerning the accused is actually under
advisement.
b. Any period of delay resulting from the absence or unavailability of
an essential witness;
c. Any period of delay resulting from the mental incompetence or
physical inability of the accused to stand trial;
d. If the information is dismissed upon motion of the prosecution and
thereafter a charge is filed against the accused for the same offense, any period
of delay from the date the charge was dismissed to the date the time limitation
would commence to run as to the subsequent charge had there been no previous
charge;
e. A reasonable period of delay when the accused is joined for trial with a
co-accused over whom the court has not acquired jurisdiction, or, as to whom
the time for trial has not run and no motion for separate trial has been granted;
and
f. Any period of delay resulting from a continuance granted by any court
motu proprio, or on motion of either the accused or his counsel, or the
prosecution, if the court granted the continuance on the basis of its findings set
forth in the order that the ends of justice served by taking such action outweigh
the best interest of the public and the accused in a speedy trial (Sec. 3, Rule 119).
[] Q: In a petition assailing the validity of the order of the trial court, the
petitioner insists that the judge acted with grave abuse of discretion when it
dismissed the criminal case against the accused on the ground that that the
30-day time limit set by Rule 119 had been breached. It is, further, claimed by
the petitioner that their pending petition for transfer of venue should interrupt
proceedings and, therefore, halt the running of the 30-day time limit. Is the
petition meritorious? NO. ****As the delay that may be excluded from the
time limit in Sec. 3 of Rule 119 within which trial must commence are those
resulting from proceedings concerning the accused. The time involved in the
proceedings in a petition for transfer of venue can only be excluded from said
time limit if it was the accused who instituted the same. ****Further, the
petition for transfer of venue cannot interrupt proceedings unless a TRO or writ of
preliminary injunction has been issued in accordance with Sec. 7 of Rule 65 as
said petition is akin to a petition for certiorari (Mari vs. Gonzales, G.R. No.
187728, September 12, 2011).
5. Factors to be considered for granting continuance—Whether or not:
a. The failure to grant continuance would make a continuation of the

proceeding impossible or result in a miscarriage of justice; or
b. The case, as a whole, is novel, unusual and complex, or it is
unreasonable to expect adequate preparation within the periods of time established
therein (Sec. 4, Rule 119).
6. ****Prohibited grounds for a continuance
a. Congestion of the court’s calendar or
b. due to lack of diligent preparation; or
c. Failure to obtain available witnesses on the part of the prosecutor (Sec. 4,
Rule 119).
7. TIME LIMIT following an order for NEW TRIAL
*GR: If the accused is to be tried again pursuant to an order for a new trial,
the trial shall commence within 30 days from notice of order.
*XPN: If the 30-day period becomes impractical due to unavailability of
the witnesses and other factors, it may be extended by the court but in no case
should it exceed 180 days from notice of said order for new trial (Sec. 5, Rule
119).
8. DUTIES OF THE PUBLIC ATTORNEY when the accused is
imprisoned—It shall be his duty to do the following:
a. Shall promptly undertake to obtain the presence of the prisoner for
trial or cause a notice to be served on the person having custody of the
prisoner requiring such person to so advice the prisoner of his right to demand
trial.
b. Upon receipt of that notice, the custodian of that prisoner shall
promptly advice the prisoner of the charge and of his right to demand trial. If at
any time thereafter the prisoner informs his custodian that he demands such trial,
the latter shall cause notice to that effect to be sent promptly to the public
attorney.
c. Upon receipt of such notice, the public attorney shall promptly seek to
obtain the presence of the prisoner for trial.
d. When the custodian of the prisoner receives from the public attorney a
properly supported request for the availability of the prisoner for purposes of trial,
the prisoner shall be made available accordingly (Sec. 7, Rule 119).
9. Acts of the counsel, attorney, or prosecutor which would warrant a sanction
a. Knowingly allowing the case to be set on trial without disclosing that
a necessary witness would be unavailable for trial;
b. Files a motion solely for delay, knowing it to be frivolous and without
merit;
c. Knowingly makes a false statement in order to obtain continuance
which he knows to be false and which is material to the granting of a continuance;
and
d. Willfully fails to proceed to trial without justification (Sec. 8, Rule 119).
10. Examination of defense witness vs. Examination of prosecution witness
before trial
Examination of Defense Witness Examination of Prosecution Witness
The accused may have his witness examined Conducted in the presence of the accused
conditionally in his behalf before trial upon motion unless he waived his right after reasonable
with notice to all other parties. notice.
Grounds: 1. Witness is so sick to afford reasonable Grounds: 1. The witness is too sick to appear
ground to believe that he will not be able to attend at trial; 2. He has to leave the Philippines
the trial; 2. He resides more than 100 kilometers with no definite date of return (Sec. 15, Rule
from place of trial and has no means to attend the 119);
same; 3. Other similar circumstances exist that
would make him unavailable or prevent him from
attending trial. (Sec. 12, Rule 119).
Conducted before any judge, member of bar in Conducted only before the judge or the
good standing or before any inferior court. court where the case is pending.
No right to cross examine. Right to cross-examine. Hence such
statements of the prosecution witnesses may
thereafter be admissible in behalf of or
against the accused.
11. Deposition: It is the testimony of a witness taken upon oral questions or

written interrogatories, in open court, but in pursuance of a commission to take
testimony issued by a court, or under a general law or court rule on the subject,
and reduced to writing and duly authenticated and intended to be used in
preparation and upon the trial of a civil or criminal prosecution.
12. Purposes of taking deposition
a. Greater assistance to the parties in ascertaining the truth and checking
and preventing perjury;
b. Provide an effective means of detecting and exposing false, fraudulent
claims and defenses;
c. Make available in a simple, convenient and inexpensive way, facts
which otherwise could not be proved except with greater difficulty;
d. Educate the parties in advance of trial as to the real value of their
claims and defenses thereby encouraging settlements,
e. Expedite litigation;
f. Prevent delay;
g. Simplify and narrow the issues; and
h. Expedite and facilitate both preparation for and trial.
13. Conduct of trial for SEVERAL ACCUSED
*GR: When two or more persons are jointly charged with an offense,
they shall be tried jointly. This rule is so designed as to preclude a wasteful
expenditure of judicial resources and to promote an orderly and expeditious
disposition of criminal prosecutions.
*XPN: The court, upon motion of the prosecutor or any of the
defendants, may order a separate trial for one or more accused (Sec. 16, Rule
119).
****In the interest of justice, a separate trial may be granted even after the
prosecution has finished presenting its evidence in chief (Joseph v. Villaluz,
G.R. No. L-45911, April 11, 1979). If a separate trial is granted, the testimony of one
accused imputing the crime to his co-accused is NOT ADMISSIBLE against
the latter. In joint trial, it would be admissible if the latter had an opportunity for
cross-examination.
5.11.2. Requisite before trial can be suspended on account of absence of

witness
1. Requisites:
a. Witness is material and appears to the court to be so;
b. Party who applies has been guilty of no neglect;
c. Witnesses can be had at the time to which the trial is deferred and no
similar evidence could be obtained; and
d. Affidavit showing the existence of the above circumstances must be
filed.
2. Remedies of the accused when a prosecuting officer without just cause
secures postponements of the trial against his protest beyond a reasonable
period of time****
a. Mandamus to compel a dismissal of the information; or
b. If he is restrained of his liberty, by habeas corpus to obtain his freedom.
5.11.3. Trial in absentia

1. Sec. 14 (2), Art. III of the Constitution provides that trial may proceed
notwithstanding the absence of the accused provided that he has been duly
notified and his failure to appear is unjustifiable (Parada v. Veneracion, A.M.
No.RTJ-96-1353, March 11, 1997).
2. Requisites291 of trial in absentia******
a. The accused has been arraigned;
b. He has been notified of the trial; and
c. His failure to appear is unjustified (Sec. 14(2), Art. III, 1987 Constitution
of the Phiippines; Bernardo v. People, G.R. No. 166980, April 4, 2007).
3. Effects of trial in absentia: The accused waives the right to present evidence
and cross-examine the witnesses against him. The accused’s waiver does not
mean, however, that the prosecution is deprived of the right to require the
presence of the accused for purposes of identification by the witnesses which
is vital for conviction of the accused, except where he unqualifiedly admits in
291Q: Enumerate the requisites of a "trial in absentia" (2%) (2%). (2010 Bar Question) SUGGESTED
ANSWER: The requisites of a valid trial in absentia are: (1) accused's arraignment; (2) his due notification of
the trial; and (3) his unjustifiable failure to appear during trial (Bemardo v. People, G.R. No. 166980, April 4,
2007).
open court after his arraignment that he is the person named as defendant in
the case on trial.
[] Q: Assailing the validity of the decisions of both trial and appellate court,
the petitioner questions the decisions of both courts convicting him for violation
of BP 22 on the ground that he was denied due process of law as the trial court
proceeded with his trial and promulgated the assailed decision in absentia.
Is the petition meritorious? NO. ****The holding of trial in absentia is
authorized by law. Under Sec. 14 (2), Art. III of the 1987 Constitution, “after
arraignment, trial may proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to appear is unjustifiable.”
The failure of the accused to appear before the court in spite of notice has been
considered a waiver of their right to be present at their trial, and the inability
of the court to notify them of the subsequent hearings did not prevent it
from continuing with their trial. They were deemed to have received notice.
Thereafter, the trial court had the duty to rule on the evidence presented by the
prosecution against all the accused and to render its judgment accordingly
(Bernardo vs. People, G.R. No. 166980, April 4, 2007).
5.11.4. Remedy when accused is not brought to trial within the prescribed
period
1. If the accused is not brought to trial within the time limit required by Sec. 1(g),
Rule 116, ****the information may be dismissed on motion of the accused on
the ground of denial of his right to speedy trial (Sec. 9, Rule 117). The dismissal
shall be subject to the rules on double jeopardy (Ibid.).
[] Dean Riano said that if trial has not yet began, what is violated is the
accused’s right to speedy disposition of cases.
2. Burden of proving the motion: The accused has the burden of proving the
motion but the prosecution shall have the burden of going forward with the
evidence to establish the exclusion of time under Sec. 3, Rule 117 (Ibid.).
3. Failure of the accused to move for dismissal prior to trial: ****The failure
of the accused shall constitute a waiver of the right to dismiss under Sec. 9,
Rule 117.
4. Remedies available to the accused when his right to speedy trial is violated
a. Ask for the trial of the case;
b. Unreasonable delay of the trial of a criminal case as to make the
detention of defendant illegal gives ground for HABEAS CORPUS as a
remedy for obtaining release;
c. Mandamus proceeding to compel the dismissal of the information; or
d. Ask for the trial of the case and then move to dismiss (Gandicela v.
Lutero, G.R. No. L-4069, March 5, 1951).
5.11.5. Requisites for discharge of accused to become a state witness

1. STATE WITNESS: He is one of two or more persons jointly charged with
the commission of a crime but who is discharged with his consent as such
accused so that he may be a witness for the State (People v. Ferrer, G.R. No.
102062, March 14, 1996). NB: only the court which has jurisdiction over the case
can discharge one as a state witness.292
2. REQUISITES before an accused may become a State witness******
a. There is absolute necessity293 for the testimony of the accused whose
discharge is requested; NB: hence, mere corroborative information is not
enough.294
b. There is no295 other direct evidence available for the proper
prosecution of the offense committed, except the testimony of the said accused;
c. The testimony of said accused can be substantially296 corroborated in
its material points;
d. Said accused does not appear297 to be the most guilty; and
e. Said accused has not at any time been convicted298 of any offense
292 (a) A complaint was filed by the offended party against three persons for homicide in the Municipal Trial
Court. The fiscal filed with the Municipal Court a motion to discharge one of the defendants to be utilized as
witness in the preliminary investigation and at the trial of the case on the merits.
As the Municipal Trial Judge, rule on the motion with reasons.
No, because the Municipal Trial Judge may only conduct a preliminary investigation of the
homicide case. Such a motion to discharge one of the defendants to be utilized as a witness for the
prosecution may be acted upon only by the court having jurisdiction to try the case on the merits. (U.S. vs.
Inductivo, 40 Phil. 84). [TOM: it’s the RTC that has jurisdiction over homicide cases]
293 Which among the following is a requisite before an accused may be discharged to become a state witness?
(2013 BAR)
(A) The testimony of the accused sought to be discharged can be substantially corroborated on all points.
[TOM: should be material points; although if it’s all, it should contain the material points, right? Now you see
why I do not like MCQs]
(B) The accused does not appear to be guilty. [TOM: he does not appear to be the most guilty]
(C) There is absolute necessity for the testimony of the accused whose discharge is requested.
(D) The accused has not at any time been convicted of any offense. [TOM: involving moral turpitude]
(E) None of the above.
294 [] The discharge or exclusion of a co-accused from the information in order that he may be utilized as state
witness is expedient that must be availed of only when there is absolute necessity for the testimony of the
accused whose discharge is requested, and not when his testimony would simply corroborate or otherwise
strengthen the evidence in the hands of the prosecution (People v. Borja, G.R. No. L-14327, January 30, 1960).
295 [] It is essential, before a defendant is discharged from the information for the purpose of utilizing him as a
witness for the government, that there is no other direct evidence available for the proper prosecution of the
offense committed, except the testimony of said accused (U.S. vs. Mandangan, 52 Phil. 62).
296 [] The testimony of the accused sought to be discharged must be susceptible of substantial corroboration
in its material points. *****An example of this is where the testimony of the discharged witness was amply
supported by the fact that various articles of the stolen property were found secreted in the place where
he indicated them to be (U.S. vs. Mananquil, 25 Phil. 75).
297 [] The discharged defendant need not be the least guilty; all the law requires, in order to discharge an
accused and to use him as a state witness, is that the defendant whose exclusion is requested does not appear to
be the most guilty, not necessarily that he was the least guilty (People vs. Faltado, 84 Phil. 89).
298 Q: Leo Cruz, Domingo Pablo and Manuel Galino are all charged with the crime of murder for the killing of
Bernardo Samis. The prosecutor moved for the discharge of Leo Cruz so that he may be utilized as a state
witness. The court denied the motion to discharge because while it found that there was compliance with the
requirements under subparagraphs a, b, c, and d. Section 9 of Rule 119, the court found non-compliance with
subparagraph e, it appearing that Cruz was convicted of theft three (3) months earlier by the Municipal Court in
Biñan, Laguna, which is an offense involving moral turpitude. The conviction is on appeal before the
involving moral299 turpitude (Sec. 17, Rule 119).300

3. PERIOD for the application for discharge of the state witness: It should be
made upon motion of the prosecution before resting its case.
Witness Protection, Security and Benefit Act

[] Persons who may avail the Program of WITNESS PROTECTION,
SECURITY AND BENEFIT ACT (RA 6981)301
1. Any person who has witnessed or has knowledge or information on the
commission of a crime and has testified or is testifying or about to testify before
any judicial or quasi-judicial body, or before any investigating authority, may be
admitted into the Program, provided that:
a. The offense in which his testimony will be used is a grave felony as
defined under the RPC, or its equivalent under special laws;
b. His testimony can be substantially corroborated in its material points;
c. He or any member of his family within the second civil degree of
consanguinity or affinity is subjected to threats to his life or bodily injury or
there is a likelihood that he will be killed, forced, intimidated, harassed or
corrupted to prevent him from testifying, or to testify falsely, or evasively,
because or on account of his testimony; and
d. He is not a law enforcement officer, even if he would be testifying against the
other law enforcement officers. In such a case, only the immediate members of his
family may avail themselves of the protection provided for under this Act (Sec.
3, RA 6981).
Regional Trial Court in Calamba, Laguna. Is the trial court correct in denying the motion to discharge on this
ground? Decide with reasons. (1990 bar Question) Answer:
*****No, because the conviction of Cruz is still pending appeal before the Regional Trial Court of
Laguna. Hence, he is not disqualified from being discharged in order to be a state witness. (Mangubat v.
Sandiganbayan, 143 SCRA 681)
299 [] *****Moral turpitude includes any act done contrary to justice, honesty, modesty or good morals. It is
an act of baseness, vileness, or depravity in the private and social duties which a man owes his fellowmen and
to society in general contrary to the accepted and customary rule of right and duty between man and woman
or conduct contrary to justice, honesty, modesty, or good morals.
300 Q: Louise is being charged with the frustrated murder of Roy. The prosecution's lone witness. Mariter,
testified to having seen Louise prepare the poison which she later surreptitiously poured into Roy’s wine
glass. Louise sought the disqualification of Mariter as witness on account of her previous conviction for
perjury. (1994 Bar Question) xxxCan Mariter be utilized as state witness if she is a co-accused in the criminal
case? Answer:
Mariter, however, cannot be utilized as a state witness if she is a co-accused in a criminal case because
an accused can be discharged as a state witness if among five requirements, the accused has not at any time
been convicted of any offense involving moral turpitude.
301 Q: As counsel of an accused charged with homicide, you are convinced that he can be utilized as a state
witness. What procedure will you take? Explain. 2.5% (2006 Bar Question) SUGGESTED ANSWER:
As counsel for the accused, I will advise my client to ask for a reinvestigation and convince the
prosecutor for him to move for the discharge of my client as a state witness, or the accused can apply as a
state witness with the Department of Justice pursuant to Rep. Act No. 6981, The Witness Protection,
Security and Benefit Act. The right to prosecute vests the prosecutor with a wide range of discretion,
including what and whom to charge (Soberano v. People, 472 SCRA 125 [2005]).
2. Discharge under Rule 119 (state witness) is separate and distinct to the
discharge of the accused under RA 6981 (witness protection act).302
[] Q: Is the discharge of an accused as a state witness necessary
before the prosecution be allowed to present him as a prosecution witness? NO. ****As there is
nothing in the rules that require that the accused be discharged first as a
state witness before he becomes a prosecution witness. While it is true that an
accused cannot be made a hostile witness for the prosecution, for to do so would
compel him to be a witness against himself, he may, however, testify against a
co-defendant where he has agreed to do so, with full knowledge of his right
and the consequences of his acts. There is a difference between testifying as
state witness and testifying as a co-accused. In the first, the proposed state
witness has to qualify as a witness for the state, after which he is discharged
as an accused and exempted from prosecution. In the second, the witness remains
an accused and can be made liable should he be found guilty of the criminal
offense (People vs. Chaves, G.R. No. 131377, February 11, 2003).
5.11.6. Effects of discharge of accused as state witness

1. ****GR: a. Discharge of accused operates as an acquittal and bar to further
prosecution for the same offense (Sec. 18, Rule 119); NB: if denied, the usual
proceedings will be followed.303
b. Evidence adduced in support of the discharge shall automatically form
part of the trial (People v. Feliciano, G.R. No. 136258, October 10, 2001); and
c. ****If the court denies the motion to discharge the accused as State
witness, his sworn statement shall be inadmissible in evidence (People v.
Feliciano, G.R. No. 136258, October 10, 2001).
2. XPNs:
302 [] Q: Petitioner claims that the public respondent judge erred when it ordered the discharge of private
respondents as state witnesses when the latter were already charged along with the other accused, including
him, before they were admitted to the Witness Protection under RA 6981. Petitioner argues that if this were
to be allowed, the same is tantamount to permitting the prosecution to supplant with its own the court’s
exercise of discretion on how a case over which it has acquired jurisdiction, will proceed. Is the petition
meritorious?
NO. ******The discharge of an accused under RA 6981 is separate and distinct from Rule 119. Rule
119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative.
The Rules of Court have never been interpreted to be beyond change by legislation designed to improve
the administration of our justice system. RA 6981 is one of the much sought penal reform laws to help
government in its uphill fight against crime. What is only required under RA 6981 is compliance with Sec.
14 of Rule 110 requiring that the exclusion of the accused be made only upon (1) motion by the prosecutor,
(2) with notice to the offended party and (3) with leave of court (Yu vs. Judge RTC of Tagaytay City, G.R. No.
142848, June 30, 2006).
303 The prosecution moved for the discharge of Romy as state witness in a robbery case it filed against Zoilo,
Amado, and him. Romy testified, consistent with the sworn statement that he gave the prosecution. After
hearing Romy, the court denied the motion for his discharge. How will denial affect Romy? (2011 BAR)
(A) His testimony shall remain on record.
(B) Romy will be prosecuted along with Zoilo and Amado.
(C) His liability, if any, will be mitigated.
(D) The court can convict him based on his testimony.
a. When the accused fails or refuses to testify against his co-accused in

accordance with his sworn statement constituting the basis of his discharge (Sec. 18,
Rule 119).
b. Failure to testify refers exclusively to defendant’s will or fault,
c. Where an accused who turns state’s evidence on a promise of immunity
but later retracts and fails to keep his part of the agreement, his confession of
his participation in the commission of the crime is admissible as evidence against
him (People v. Beberino, G.R. No. L-23213, October 28, 1977).
[] Effects when the discharged accused retracts or fails to comply with his
part of the agreement: If the retraction or failure to testify is solely his fault, his
confession of his participation in the commission of the crime is admissible as
evidence (People v. Beberino, G.R. No. L-23092, October 28, 1977).
3. Discharge under this rule is only one of the modes to be a State witness.
Other modes are:
a. The Witness Protection Program of RA 6981;
b. The power of the Ombudsman to grant immunity under Sec. 17, RA
6770;
c. Immunity under PD 749;
d. Immunity under EO 14-A;
e. Immunity under the Comprehensive Dangerous Drugs Act of 2002, RA
9165; and
f. Immunity and Protection under the Human Security Act of 2007, RA
9372.
4. Witness Protection Program vs. Sec. 17, Rule 119 of the Rules of Court*******
Witness Protection Program Rules of Court
The offense in which the testimony is to be used is limited It has no qualification. It applies to all
only to grave felony under the RPC or its equivalent felonies.
under special law.
Any member of the family of the person applying for This is not required.
admission within the second civil degree of consanguinity
or affinity is subjected to threat of his life or bodily injury
or there is a likelihood that he will be killed, forced,
intimidated, harassed or corrupted to prevent him from
testifying or to testify falsely or evasively on account of his
testimony.
The witness applying is not a law enforcement officer. There is no such limitation. One can
be discharged as a witness whether he
is a law enforcement officer or not.
The immunity is granted by DOJ. The immunity is granted by the court.
The witness is automatically entitled to certain rights and The witness so discharged must still
benefits. apply for the enjoyment of said rights
and benefits in the DOJ.
The witness need not be charged elsewhere. He is charged in court as one of the
accused as stated in the information.
No information may thus be filed against the witness. The charges against him shall be
dropped and the same operates as an
acquittal.
****Both require that there is absolute necessity for the testimony and that there
is no other direct evidence available for the prosecution of the offense
committed.
5. Rule when the discharge of an accused operates as an acquittal
*GR: The discharge of the accused shall amount to an acquittal and shall be
a bar to future prosecution for the same offense.
*XPN: If the accused fails or refuses to testify against his co-accused in
accordance with his sworn statement constituting the basis of the discharge (Sec.
18, Rule 119).
6. Remedy when mistake has been made in charging the proper offense: When
it becomes manifest at any time before judgment that a mistake has been made
in charging the proper offense and the accused cannot be convicted of the
offense charged or any other offense necessarily included therein, the accused
shall not be discharged if there appears to be a good cause to detain him. In
such case, the court shall commit the accused to answer for the proper
offense and dismiss the case upon filing of the proper information (Sec. 19,
Rule 119).
This rule is predicated on the fact that an accused has the right to be
informed of the nature and cause of the accusation against him, and to convict
him of an offense different from that charged in the complaint or information
would be an unauthorized denial of that right.
5.11.7. Demurrer to evidence

[] Notes here are transferred to Demurrer to evidence under CivPro.
———————————————————————————————
5.12. Judgment [Rule 120]
5.12.1. Requisites of a judgment 252

5.12.2. Contents of judgment 252
1. If of conviction: (CPPC) 253
2. If of acquittal: 253
3. No alternative penalties in judgments 253
4. Judgment for two or more offenses charged in the complaint or information 254
5. Variance between the offense charged and proved 254
6. Effect of the judgment of conviction upon a minoR 254
5.12.3. Promulgation of judgment; instances of promulgation of judgment in absentia255
5.12.4. When does judgment become final (four instances) 256
———————————————————————————————
ON JUDGMENT
1. It is adjudication by the court that the accused is guilty or not guilty of the
offense charged and the imposition of the proper penalty and civil liability, if
any. It is a judicial act which settles the issues, fixes the rights and liabilities
of the parties, and is regarded as the sentence of the law pronounced by the court
on the action or question before it (Sec. 1, Rule 120).
2. Difference between a judgment and a ratio decidendi: A judgment
pronounces the disposition of the case; while a ratio decidendi provides the
basic reason for such determination.
3. Final Order (FO) vs. Interlocutory Order (IO)
a. FO: disposes of the whole subject matter or terminates a particular
issue leaving nothing to be done but to enforce by execution what has been
determined.
b. IO: issued by the court when the proceeding is not yet terminated
because not all matters of the proceedings have been finished.
5.12.1. Requisites of a judgment

****It must be:
1. Written in official language;
2. Personally and directly prepared by the judge;
3. Signed by the judge; and
4. Contain clearly and distinctly a statement of the facts and the law upon
which it is based (Sec. 1, Rule 120).
[] The jurisdictional requirements before a judgment may be validly rendered
are jurisdiction over the****
a. subject matter,
b. territory and the
c. person of the accused (Antiporda, Jr. v. Garchitorena, G.R. No. 133289,
December 23, 1999).
5.12.2. Contents of judgment

****The judgment must state:
1. If of CONVICTION: (CPPC)
a. (crime committed) Legal qualification of the offense constituted by the
acts committed by the accused, and the aggravating or mitigating
circumstances attending its commission;
b. (participation as PAA) Participation of the accused whether as
principal, accomplice or accessory;
c. (penalty) Penalty imposed upon the accused; and
d. (civil liability) Civil liability or damages caused by the wrongful act or
omission unless a separate civil action has been reserved or waived (Sec. 2, Rule 120).
[] What if convicted under a wrong name, say Pablo Goma instead of
Pablo Gomez? Is that tantamount to an acquittal? NO. ****What is important is
not the name but the IDENTITY of the person. Conviction under a wrong
name is not a ground for acquittal.
2. If of ACQUITTAL:304
a. (kind of acquittal) Whether the evidence of the prosecution absolutely
failed to prove the guilt of the accused or merely failed to prove his guilt
beyond reasonable doubt; and
b. (civil liability) In either case, the judgment shall determine if the act or
omission from which the civil liability might arise did exist (Sec. 2, Rule 120).
304
As a general rule, the prosecution cannot appeal or bring error proceedings from a judgment
rendered in favor of the defendant in a criminal case. The reason is that a judgment of acquittal is
immediately final and executory, and the prosecution is barred from appealing lest the
constitutional prohibition against double jeopardy be violated. (People and AAA v. Court of
Appeals, G.R. No. 183652, 25 February 2015, J. Peralta). *******Despite acquittal, however, either
the offended party or the accused may appeal, but only with respect to the civil aspect of the
decision. Or, said judgment of acquittal may be assailed through a petition for certiorari under
Rule 65 of the Rules of Court showing that the lower court, in acquitting the accused, committed
not merely reversible errors of judgment, but also exercised grave abuse of discretion
amounting to lack or excess of jurisdiction, or a denial of due process, thereby rendering the
assailed judgment null and void. *****If there is grave abuse of discretion, granting petitioner’s
prayer is not tantamount to putting private respondents in double jeopardy. (People and AAA v.
Court of Appeals, G.R. No. 183652, 25 February 2015, J. Peralta).. *******an appeal therefrom on
the criminal aspect may be undertaken only by the State through the Solicitor General. Only the
Solicitor General may represent the People of the Philippines on appeal. The private offended
party or complainant may not take such appeal. However, the said offended party or
complainant may appeal the civil aspect despite the acquittal of the accused. (People and AAA v.
Court of Appeals, G.R. No. 183652, 25 February 2015, J. Peralta)
[] Award of indemnity to offended party in spite of acquittal: In case of

acquittal, unless there is a clear showing that the act from which the civil
liability might arise did not exist, the judgment must make a finding on the civil
liability of the accused in favor of the offended party (Sec. 2, par. 2, Rule 120).
The judgment of acquittal extinguishes the liability of the accused for damages
only when it includes a declaration that the facts from which the civil
liability might arise did not exist. Thus, the civil liability is not extinguished by
acquittal where the acquittal is based on reasonable doubt (PNB vs. Catipon, G.R. No. L-
6662, January 31, 1956).
3. No alternative penalties in judgments
[] Can the courts impose penalties in the alternative? NO. ****It is true that
under many of the provisions of the penal law, the court has the discretion or
alternative of imposing one or another of different penalties; but certainly it
cannot be argued that, because the judge has the discretion of fixing one or
another penalty, he can impose both in the alternative. He must fix positively
and with certainty the particular penalty (U.S. vs. Chong Ting, G.R. No.
7259, September 2, 1912).
4. Judgment for two or more offenses charged in the complaint or
information
[] When two or more offenses are charged in a single complaint or
information but the accused fails to object to it before trial, the court may
convict him of as many offenses as are charged and proved, and impose on
him the penalty of each offense, setting out separately the findings of the fact
and law in each offense (Sec. 3, Rule 120). [irt Rule 110, Section 13. Duplicity of
the offense. — A complaint or information must charge but one offense,
except when the law prescribes a single punishment for various offenses.]
****Failure of the accused to object to the duplicity of offense charged in the
complaint or information, is DEEMED A WAIVER thereof (Herrera, 2007).
5. VARIANCE between the offense charged and proved
a. ******GR: An accused can be convicted of an offense only when it is
both charged and proved; if it is not charged although proved, or if it is not
proved although charged, the accused cannot be convicted thereof. [] An accused
cannot be convicted of an offense not charged or included in the information for
this will be in violation of the constitutional right of the accused to be
informed of the nature of the offense charged against him (Herrera, 2007).
b. XPN: Where there is a variance between the offense charged in the
complaint or information and that proved AND the offense as charged is
included in or is necessarily includes the offense proved, the accused shall be
convicted of
i. the offense PROVED which is included in the offense charged, or
ii. the offense CHARGED which is included in the offense proved (Sec. 4).
c. Otherwise, it is reviewable by certiorari.305

6. Effect of the judgment of conviction upon a MINOR
Existing provisions on suspension of sentence of youthful offenders
*GR: Once the child is under 18 years of age at the time of the commission
of the offense charged, the Court shall determine and ascertain any civil
liability which may have resulted from the offense committed. ****However,
instead of pronouncing the judgment of conviction, the Court shall place the
child in conflict with the law under suspended sentence without need of
application. Suspension of sentence shall still be applied if the juvenile is already
18 years of age or more at the time of the pronouncement of his/her guilt
(Sec. 38, RA 9344). In which case, the child shall have been committed under
the care of the DSWD or any other accredited government institution until he
reaches the age of 21 or until the court so determines (Sec. 40, RA 9344, Juvenile Justice
and Welfare Act of 2006).
*XPNs: There is no suspension of sentence when such minor offender:
a. Has enjoyed previous suspension of sentence;
b. Is convicted of a crime punishable by death or life imprisonment;
c. Is convicted by a military tribunal; or
d. Is already of age at the time of sentencing even if he was a minor at the
time of the commission of the crime (Declarador v. Gubaton, G.R. No. 159208, August
18, 2006).
[] Rule if the minor already reached the age of majority upon the
promulgation of his sentence: He is no longer entitled to the suspension of
sentence. However, the time he spent during the period of his confinement shall
be credited to his actual service of sentence. Furthermore, he shall still be entitled
to the privileged mitigating circumstance of minority (People v. Francisco, G.R.
No. 102976, October 25, 1995; RA 9344, Juvenile Justice and Welfare Act of
2006). [TOM: that’s what GN says but recent cases comment on the law pegging
305Q: AX was charged before the YY Regional Trial Court with theft of jewelry valued at P20.000, punishable
with imprisonment of up to 10 years of prision mayor under the Revised Penal Code. After trial, he was
convicted of the offense charged, notwithstanding that the material facts duly established during the trial
showed that the offense committed was estafa, punishable by imprisonment of up to eight years of
prision mayor under the said Code. No appeal having been taken therefrom, said judgment of conviction
became final.
[] Is the judgment of conviction valid? (5%) (2004 Bar Question) SUGGESTED ANSWER: Yes, the
judgment of conviction for theft upon an information for theft is valid because the court had jurisdiction to
render judgment. However, the judgment was grossly and blatantly erroneous. The variance between the
evidence and the judgment of conviction is substantial since the evidence is one for estafa while the
judgment is one for theft. The elements of the two crimes are not the same. (Lauro Santos v. People, 181
SCRA 487). One offense does not necessarily include or is included in the other. (Sec. 5 of Rule 120).
[] Is the said judgment reviewable thru a special civil action for certiorari? Reason. ******The judgment
of conviction is reviewable by certiorari even if no appeal had been taken, because the judge committed a
grave abuse of discretion tantamount to lack or excess of his jurisdiction in convicting the accused of theft
and in violating due process and his right to be informed of the nature and the cause of the accusation
against him, which make the judgment void. With the mistake in charging the proper offense, the judge
should have directed the filing of the proper information and thereafter dismissed the original
information. (Sec. 19 of Rule 119).
the age at 21 at the time of conviction for the suspension of sentence; beyond that
age, the person who committed the offense while he was a minor may be
committed to an agricultural camp or training facility managed by BUCOR].
5.12.3. Promulgation of judgment; instances of promulgation of judgment

in absentia
1. PROMULGATION of judgment: It is the official proclamation or
announcement of judgment. ****It is promulgated:
a. by READING it
b. in the presence of
i. the accused and any judge of the court which it was rendered,
ii. or when the judgment is one of conviction for a light offense
(arresto minor & public censure), in the presence of the defendant’s counsel or
representative (Sec. 6, Rule 120).
*****A judgment or sentence does not become a judgment or sentence
in law until
a. the same has been read or announced to the defendant or
b. has become a part of the record of the court (U.S. vs. CFI of Manila,
G.R. No. L-8195, February 14, 1913).
2. Authority to promulgate the judgment306
*GR: The judge of the court who renders the judgment.
*XPNs: When:
a. The judge is absent or outside the province or city – Judgment may be
promulgated by the clerk of court; and
b. Accused is confined or detained in another city – Judgment may be
promulgated by the executive judge of the RTC having jurisdiction over the
place of confinement or detention (Sec. 6, Rule120).
[] ****Where there is not merely physical absence of the judge who
penned the decision, but the cessation or termination of his incumbency as
such judge, there is no judgment validly entered in such a case (Ong Siu vs.
Paredes, G.R. No. L-21638, July 26, 1966).
306 The judgment in a criminal case may be promulgated by the following, except by: (2012 BAR)
a. a Sandiganbayan justice in cases involving anti-graft laws [TOM: by elimination]
b. a ClerkofCourtofthecourtwhichrenderedjudgment.
c. an Executive Judge of a City Court if the accused is detained in another city.
d. anyjudgeofthecourtinwhichitwasrendered.
3. ******307When the accused is absent308 in the promulgation of judgment: The

promulgation shall still be made by:
(1) recording such judgment in the criminal docket, and
(2) serving him a copy thereof in his last known address or through his
counsel.
[] ******If judgment is one of conviction and the accused is absent without
justifiable cause, the court shall order his ARREST and he shall lose the
REMEDIES309 available in the rules against judgment and his BAIL shall be
forfeited.310 However, the accused may surrender and file a motion for leave
307 Q: Enumerate the requisites a promulgation of judgment in absentia" (2%). (2010 Bar Question)
SUGGESTED ANSWER:The requisites for a valid promulgation of judgment are:******
1. A valid notice of promulgation of judgment,
2. Said notice was duly furnished to the accused, personally or thru counsel;
3. Accused failed to appear on the scheduled date of promulgation of judgment despite due
notice;
4. Such judgment be recorded in the criminal docket; and
5. Copy of said judgment had been duly served upon the accused or his counsel
308 P failed to appear at the promulgation of judgment without justifiable cause. The judgment convicted P for
slight physical injuries. Judgment may therefore be promulgated in the following manner: (2012 BAR)
a. Bythereadingofthejudgmentinthepresenceofonlythejudge.
b. BytheclerkofcourtinthepresenceofP'scounsel.
c. By the clerk of court in the presence of a representative of P.
d. By entering the judgment into the criminal docket of the court.
309 Q: Ludong, Balatong, and Labong were charged with murder. After trial, the court announced that the case
was considered submitted for decision. Subsequently, the Clerk of Court issued the notices of promulgation of
judgment which were duly received. On promulgation day, Ludong and his lawyer appeared. The lawyers
of Balatong and Labong appeared but without their clients and failed to satisfactorily explain their
absence when queried by the court. Thus, the judge ordered that the judgment be entered in the criminal
docket and copies be furnished their lawyers. The lawyers of Ludong, Balatong, and Labong filed within the
reglementary period of Joint Motion for Reconsideration. The court favorably granted the motion of
Ludong downgrading his conviction from murder to homicide but denied the motion as regards Balatong
and Labong.
a. Was the court correct in taking cognizance of the Joint Motion for Reconsideration? (2014) A: NO.
*****The court is not correct in taking cognizance of the Joint Motion for Reconsideration. Section 6, Rule
120 of the Rules of Court provides that ******if the judgment is for conviction and the failure of the
accused to appear was without justifiable cause, he shall lose the remedies available against the judgment
and the court shall order his arrest. Henceforth, the Court erred when it entertained the Joint Motion for
Reconsideration with respect to accused Balatong and Labong who were not present during the
promulgation of the judgment. The Court should have merely considered the joint motion as a motion for
reconsideration that was solely filed by Ludong. (People v. De Grano, G.R. No. 167710, June 5, 2009).
b. Can Balatong and Labong appeal their conviction in case Ludong accepts his conviction for
homicide? A: NO, Balatong and Labong cannot appeal their conviction because they lost their right to
appeal during the promulgation of judgment. Be that as it may, if they surrendered and filed a Motion for
Leave to avail of their post judgment remedies within fifteen (15) days from promulgation of judgment.
And they have proven that their absence at the scheduled promulgation was for a justifiable cause, they may
be allowed to avail of said remedies within fifteen (15) days from notice thereof (People v. De Grano, G.R. No.
167710, June 5, 2009).
310 The accused jumps bail and fails to appear on promulgation of judgment where he is found guilty. What is
the consequence of his absence? (2011 BAR)

(A) Counsel may appeal the judgment in the absence of the accused.
(B) The judgment shall be promulgated in his absence and he loses his right of appeal.
(C) The promulgation of the judgment shall be suspended until he is brought to the jurisdiction of the court.
(D) The judgment shall be void.
of court to avail of these remedies within 15 days from the promulgation of

judgment.311 If such motion is granted, he may avail of these remedies within 15
days from notice of such order granting the motion (Sec. 6, Rule 120). He must
however, state the reasons for his absence at the promulgation and prove
that his absence was for a justifiable cause.
4. ******Instances when judgment may be promulgated even if the accused
is not present
a. A judgment of acquittal.312
b. Judgment is for a light offense, in which case judgment may be
promulgated in the presence of the counsel for the accused or a
representative.313
c. Accused fails to attend the promulgation despite due notice or if he
jumped bail or escaped from prison. Notice must be given to the bondsmen,
warden, accused’s bailor and counsel (Sec. 6, Rule 120).
5. Rule on MODIFICATION OF JUDGMENT:
a. A judgment of conviction may, upon motion of the accused, be
modified or set aside before it becomes final or before appeal is perfected
(Sec.7, Rule 120).
b. A judgment of acquittal becomes final immediately after
promulgation and cannot be recalled for correction or amendment (People vs.
Sison, 105 Phil. 1248). [] It is well-settled that acquittal, in a criminal case is
311At the promulgation of judgment, P, who is bonded, failed to appear without justifiable cause. In order for P
not to lose his remedies under the Rules, he must: (2012 BAR)
a. within 15 days from receipt of a copy of the decision, file a Motion for Reconsideration.
b. within 15 days from the promulgation, surrender to the court and file a motion for leave to avail of
remedies.
c. notify his bondsman within 15 days so that his bail will not be confiscated.
d. fileapetitionforcertiorari.
312 Q: X, the accused in a homicide case before the Regional Trial Court, Dagupan City, was personally notified
of the promulgation of judgment in his case set for 10 December 1996. On said date, X was not present as he
had to attend to the trial of another criminal case against him in Tarlac, Tarlac. The trial court denied the motion
of the counsel of X to postpone the promulgation.
A. How shall the court promulgate the judgment in the absence of the accused? In the absence of the accused,
the promulgation shall be made by recording, the Judgment in the criminal docket and a copy thereof served
upon the accused or counsel. (Sec. 6, third par., Rule 120)
B. Can the trial court also order the arrest of X? (1997 Bar Question) No. the trial court cannot order the arrest
of X if the Judgment is one of acquittal and. in any event, his failure to appear was with Justifiable cause since he
had to attend to another criminal case against him. (Id.)
313 Q: The accused was duly notified of the date set for the promulgation of the decision in the case filed against
him. The accused failed to appear but his counsel was present. The judge ordered the cancellation of the
bailbond posted by the accused and issued a warrant for his arrest. The judge further ordered that the
promulgation of the decision be held' in abeyance until the accused is taken into custody. Was the action taken
by the judge proper? Explain fully. (1989 Bar Question) Answer:
The judge correctly ordered the cancellation (forfeiture) of the bailbond posted by the accused
and the issuance of a warrant for his arrest upon his failure to appear for the promulgation of the decision in
the case filed against him.
However, the judge erred in holding in abeyance the promulgation of the decision until the
accused is taken into custody, because in such case the promulgation shall be made by recording the
judgment in the criminal docket and a copy shall be served upon the accused or counsel. (Sec. 6 of Rule
120)
immediately final and executory upon its promulgation, and that accordingly,
the State may not seek its review without placing the accused in double
jeopardy (Barbers v. Laguio Jr., AM No. RTJ-00-1568, February 15, 2001).
6. Remedy when the judgment fails to award civil liability
a. Appeal;
b. Certiorari; or
c. Mandamus
7. Some relevant terms:
a. MITTIMUS: It is a process issued by the court after conviction to
carry out the final judgment, such as commanding a prison warden to hold the accused in
accordance with the terms of judgment.
b. ACQUITTAL: A finding of not guilty based on the merits, that is, the
accused is acquitted because the evidence does not show that his guilt is
beyond reasonable doubt, or a dismissal of the case after the prosecution has
rested its case upon motion of the accused on the ground that the evidence fails
to show beyond reasonable doubt that the accused is guilty.
c. REASONABLE DOUBT: The state of the case which, after full
consideration of all evidence, leaves the mind of the judge in such a condition
that he cannot say that he feels an abiding conviction to a moral certainty of
the truth of the charge.
5.12.4. When does judgment become final (four instances)

1. Finality of judgment******
a. After the lapse of time for perfecting an appeal; *In case death penalty is
imposed, the CA shall automatically review the judgment before it becomes final.
b. When the sentence has been partially or totally satisfied.
c. When the accused has expressly waived in writing his right to appeal.
d. When the accused has applied for probation314 (Sec. 7, Rule 120).
2. Instances when the trial court loses jurisdiction even before the lapse of the 15 day
period to appeal****
a. The defendant voluntarily submits to the execution of the judgment;
b. When the defendant perfects an appeal;
c. Defendant withdraws his appeal;
d. Accused expressly waives in writing his right to appeal;
e. Accused files for probation.
3. ENTRY OF JUDGMENT: The recording of the judgment or order in the
book of entries of judgments shall constitute its entry. The record shall contain
the dispositive part of the judgment order and shall be signed by the clerk, with
314 A judgment of conviction in a criminal case becomes final when: (2012 BAR)
a. accusedorallywaivedhisrighttoappeal.
b. accusedwastriedinabsentiaandfailedtoappearatthepromulgation.
c. accused files an application for probation.
d. reclusionperpetuaisimposedandtheaccusedfailstoappeal.
a certificate that such judgment or order has become final and executory (Sec.
2, Rule 36).
4. Existing provisions on PROBATION
a. Probation: The court may, after it shall have convicted and sentenced
a defendant within the period for perfecting an appeal, SUSPEND the
execution of the sentence and place the defendant on probation for such
period and conditions it may deemed best. No application for probation shall be
entertained or granted if the defendant has perfected an appeal from the
judgment of conviction (Sec. 4, PD 968 as amended).
b. Offenders who are DISQUALIFIED from probation****
i. Those sentenced to serve a maximum term of imprisonment of
more than 6 years.
ii. Those charged with subversion or any crime against national
security or public order.
iii. Those previously convicted by final judgment of an offense
punished by imprisonment not less than one month and one day and/or a
fine not less than two hundred pesos.
iv. Those who have been once on probation under this decree.
v. Those who are already serving sentence at the time the
Probation Law of 1976 became applicable (Sec. 9, PD 968 as amended).
———————————————————————————————
5.13. New trial or reconsideration [Rule 121]
5.13.1. Grounds for new trial 261

5.13.2. Grounds for reconsideration 261
5.13.3. Requisites before a new trial may be granted on ground of newly-discovered evidence261
5.13.4. Effects of granting a new trial or reconsideration 263
5.13.5. Application of Neypes doctrine in criminal cases 264
———————————————————————————————
REMEDIES AGAINST A JUDGMENT

1. Before the judgment becomes final & executory:
a. Motion for Reconsideration
b. Motion for New Trial
c. Appeal
2. After the judgment becomes final & executory:
a. Annulment of judgment
b. Petition for relief
****Note that these two remedies are not explicitly available in criminal
proceedings, but they may be used by analogy [Riano 2017 class]
5.13.1. Grounds for new trial

5.13.2. Grounds for reconsideration
1. GROUNDS FOR MR and MNT in a Criminal Case
MR in a Crim Case MNT in a Crim Case
May be filed in order to Rehearing of a case already decided but before the judgment of
correct errors of law or conviction therein rendered has become final, whereby errors of law
fact in the judgment. It does or irregularities are expunged from the record or new evidence is
not require any further introduced, or both steps are taken.
proceeding.
*****Grounds: Grounds: 1. Errors of law or irregularities prejudicial to the

1. Errors of law; or substantial rights of the accused have been committed during the trial;
2. Errors of fact (Sec. 3, 2. New and material evidence has been discovered which the
Rule121). accused could not, with reasonable diligence, have discovered and
*The principle underlying produced at the trial and which if introduced and admitted would
this rule is to afford the probably change the judgment (Sec. 2, Rule121); 3. Other grounds
trial court the opportunity which the court may consider in the exercise of its jurisdiction: a.
to correct its own Negligence or incompetency of counsel or mistake which is so
mistakes and to avoid gross amounting to deprivation of the substantial rights of the
unnecessary appeals from accused and due process (Aguilar v. CA GR No. 114282, November
being taken. The grant by 28, 1995); b. Recantation of a witness where there is no evidence
the court of reconsideration sustaining the judgment of conviction other than the testimony of
should require no further such witness (Tan Ang Bun v. CA G.R. No. L-47747, February 15,
proceedings, such as 1990); c. Improvident plea of guilty which may be withdrawn; d.
taking of additional proof. Disqualification of attorney de officio to represent accused in trial;
e. Interest of justice (Sec. 6, Rule 121).
2. Compare (1) with the grounds for MR & MNT in a Civil Case*****
MR in a CIVIL case MNT in a civil case
Grounds for MR (DEL): a. The Grounds for MNT: a. FAME: Extrinsic fraud, accident, mistake or
damages awarded are excusable negligence (FAME) which ordinary prudence could not
excessive; b. The evidence is have guarded against and by reason of which the rights of the
insufficient to satisfy the decision aggrieved party were impaired; or b. NDE: Newly discovered
or final order; or c. The decision or evidence, which could not with reasonable diligence, have been
final order is contrary to law discovered and produced at the trial, and which if presented, would
(Sec. 1, Rule 37). probably alter the result
3. Crim—Period to file an MNT or MR: It should be filed with the trial court
within 15 days from the promulgation of the judgment. *****If an appeal has
already been perfected, a motion for new trial on the ground of newly
discovered evidence maybe filed in the appellate court.
4. Application of these rules:
a. Bino files an action for forcible entry against Tomas. Tomas’s defense:
I’m the owner of the land! The court rendered a judgment in favor of Bino. Can
Tomas file a motion for reconsideration? NO! It’s a prohibited pleading
(together with MNT) under Sec 13, R70. What’s his remedy? File an appeal.
b. Note that M/R is also a prohibited pleading under the rules on small
claims
c. But M/R and MNT are not prohibited under the ROP on
Environmental Cases
d. And this is tricky: for the issuance of the writs of amparo and habeas data,
MR is prohibited only for interlocutory judgments (not the judgment itself) [the
same are not prohibited in Kalikasan]
e. As to petitions for certiorari, prohibition and mandamus on
interlocutory orders, they are all prohibited pleadings in summary procedures,
amparo and habeas data (but not in Kalikasan)
5. Recantation: The public and formal withdrawal by a witness of his prior

statement (People v. Ballabare, G.R. No. 108871, November 19, 1996).
*Recantation vs. Desistance
Recantation Affidavit of Desistance
A witness who previously gave a testimony The complainant states that he did not really
subsequently declares that his statements are intend to institute the case and he is no longer
untrue publicly (PP v. Ballabare, Nov 19, 1996) interested in testifying or prosecuting.
GR: It is not a ground for granting a new trial It is not by itself a ground for dismissal of the
and are hardly given weight. XPN: When there action (People v. Ramirez, G.R. Nos. 150079-80,
is no evidence sustaining the judgment of June 10, 2004). It is merely an additional ground
conviction other than the testimony of the recanting to buttress the defense and not a sole
witness (Tan Ang Bun v. CA, February 15, 1990). consideration for acquittal (People v. Ballabare,
November 19, 1996).
5.13.3. Requisites before a new trial may be granted on ground of newly-

discovered evidence
1. Requisites before a new trial may be granted on the ground of newly
discovered evidence ******(BERRY RULE—originated in the case of Berry v.
State of Georgia) [Bar 1988]
a. The evidence was discovered after trial;
b. Such evidence could not have been discovered and produced at the
trial even with the exercise of reasonable diligence;
c. It is material, not merely cumulative, corroborative or impeaching; and
d. The evidence is of such a weight that it would probably change the
judgment if admitted (Herrera, 2007; CIR v. A. Soriano Corporation, G.R. No.
113703, January 31, 1997).
****Newly discovered evidence need NOT be newly created evidence: It
may and does commonly refer to evidence already in existence prior or during trial
but which could not have been secured and presented during the trial despite
reasonable diligence on the part of the litigant (Tumang v. CA, G.R. Nos. 82346-
47, April 17, 1989).
2. A new trial may be granted at any time before the judgment of conviction
becomes final:
a. On motion of the accused.
b. On motion of the court but with consent of the accused.
3. May errors or ignorance of counsel be a ground for new trial or
reconsideration?
*GR: NO. Mistakes or errors of counsel in the conduct of his case are not
grounds for new trial. This rule is the same whether the mistakes are the result
of ignorance, inexperience, or incompetence.
****XPN: If the incompetence, ignorance or inexperience of counsel is so
great and the error committed as a result thereof is so serious that the client,
who otherwise has a good cause, is prejudiced and denied his day in court, the
litigation may be reopened to give the client another chance to present his
case (Abrajano v. CA, G.R. No. 114282, October 13, 2000).
4. Form of a motion for new trial or reconsideration—The motion must:
a. Be in writing;
b. Be filed in court;
c. State the grounds on which it is based; and
d. If the motion for new trial is based on newly discovered evidence, it must
be supported by the affidavits of the witness by whom such evidence is expected
to be given or duly authenticated copies of documents which it is proposed to
introduce in evidence (Sec. 4, Rule 121). ****While the rule requires that an
affidavit of merit be attached to support a motion for new trial based on newly
discovered evidence, the rule also allows that the defect of lack of merit may
be cured by the testimony under oath of the defendant at the hearing of the
motion(Paredes v. Borja, G.R. No. L-15559, November 29, 1961).
5.13.4. Effects315 of granting a new trial or reconsideration

1. In all cases, when the court grants a new trial or reconsideration, the original
judgment shall be set aside or vacated and a new judgment rendered
accordingly.
2. In addition, when new trial is granted on the ground of:
a. Errors of law or irregularities committed during the trial
i. All proceedings and evidence not affected by such errors and
irregularities shall stand;
ii. Those affected shall be set aside and taken anew; and
iii. In the interest of justice, the court may allow the introduction of
additional evidence.
b. Newly discovered evidence
i. The evidence already taken shall stand;
ii. Newly discovered and other evidence as the court may, in the interest of
justice, allow to be introduced, shall be taken and considered together with the
evidence already in the record (Sec. 6, Rule121).
****The effect of granting a new trial is not to acquit the accused of the
crime of which the judgment finds him guilty but precisely to set aside said
judgment so that the case may be tried DE NOVO as if no trial had been had
before.
3. New trial vs. Reopening of the case
New Trial Re-opening of the Case
315
What is the effect and ramification of an order allowing new trial? (2011 BAR)
(A) The court’s decision shall be held in suspension until the defendant could show at the reopening of trial that
it has to be abandoned.
(B) The court shall maintain the part of its judgment that is unaffected and void the rest.
(C) The evidence taken upon the former trial, if material and competent, shall remain in use.
(D) The court shall vacate the judgment as well as the entire proceedings had in the case.
Filed after judgment is rendered but Made by the court before the judgment is rendered in
before the finality thereof. the exercise of sound discretion.
Made by the court on motion of the Does not require the consent of the accused; may be
accused or at its own instance but with at the instance of either party who can thereafter present
the consent of the accused. additional evidence.
5.13.5. Application of Neypes doctrine in criminal cases

• Yes, it is applicable. Cf: Neypes rule, supra.
———————————————————————————————
5.14. Appeal [Rule 122]
5.14.1. Effect of an appeal 266

5.14.2. Where to appeal 266
5.14.3. How appeal taken [AM 00-5-03-SC, 3 Oct 2002] 267
5.14.4. Effect of appeal by any of several accused**** 268
5.14.5. Grounds for dismissal of appeal 269
———————————————————————————————
ON APPEAL
1. It is a proceeding for review by which the whole case is transferred to the
higher court for a final determination. It is not an inherent right of a convicted
person. The right of appeal is STATUTORY. Only final judgments and orders
are appealable.
2. Parties who may avail of appeal: ****Any party may appeal from a judgment or
final order, unless the accused will be placed in double jeopardy (Sec. 1, Rule
122).316
3. Period to take an appeal: It must be taken within 15 days from promulgation
of judgment or from notice of final order appealed from (Sec. 6, Rule122).
5.14.1. Effect of an appeal

1. EFFECT: ****An appeal in a criminal case OPENS the WHOLE CASE for
review and this includes the review of penalty, indemnity, and the damages
involved. Consequently, on appeal, the APPELLATE COURT MAY
INCREASE the penalty and indemnity of damages awarded by the trial court
316Q: George was charged with falsification. On the date of initial trial, the fiscal moved for postponement
on the ground that the case had been assigned to a special prosecutor of the Department of Justice who was out
of town to attend to an urgent case, and who had wired him to request for postponement. The fiscal manifested
that he was not ready for trial because he was unfamiliar with the case. The judge then asked the accused as well
as his counsel whether they were amenable to a postponement. Both George and his counsel insisted on a trial.
The judge ordered the case dismissed. Upon learning thereof, the special prosecutor filed a petition for
certiorari under Rule 65 of the Rules of Court alleging that the dismissal was capricious and deprived the
Government of due process. George opposed the petition, invoking double jeopardy.
A. *****Is double jeopardy a bar to the petition? Explain. No, because this is not an appeal by the
prosecution asserting a dismissal to be erroneous. It is a petition for certiorari which assails the order of
dismissal as invalid and a nullity because it was capricious and deprived the Government of due process.
Considering that this was the first motion for postponement of the trial filed by the fiscal and the ground was
meritorious, the judge gravely abused his discretion in ordering the case dismissed. If there is no valid
dismissal or termination of the case, there is no basis for invoking double jeopardy. (People vs. Gomez,
20 SCRA 293)
B. Suppose that trial on the merits had in fact proceeded and the trial judge, finding the evidence to be
insufficient, dismissed the case, would your answer be the same? Explain. (1988 Bar Question) Answer: No,
because in such a case, the order of dismissal would be valid, even if erroneous, and would be tantamount to
an acquittal.
although the offended party had not appealed from said award, and the party
who sought a review of the decision was the accused.
2. Modes of appeal that may be taken from a judgment convicting the accused
a. The accused may seek a review of said judgment as regards both
criminal and civil actions; or
b. ****The complainant may appeal only with respect to the civil action
either because the lower court has refused or failed to award damages or because
the award made is unsatisfactory to him.
3. Effect of perfection of appeal with regard to the jurisdiction of the court:
****Once an appeal in a case, whether civil or criminal, has been perfected, the
court a quo loses jurisdiction over the case both over the record and over the
subject of the case (Director of Prisons v. Teodoro, G.R. No. L-9043, July 30,
1955). Failure to serve a copy to the prosecutor is not a defect which can
nullify the appeal or prejudice the unquestionable rights of the accused.
4. Effects of failure to prosecute an appeal
a. Judgment of the court becomes final.
b. Accused cannot be afforded the right to appeal unless:
i. He voluntarily submits to the jurisdiction of the court; or
ii. He is otherwise arrested within 15 days from notice of
judgment against him.
5.14.2. Where to appeal

1. Courts where appeal is taken
a. RTC: in cases decided by the MTC, MTCC, MeTC, or MCTC;
b. CA or to the SC: in the proper cases provided by law, in cases decided by
the RTC;
c. SC: in cases decided by the CA (Sec. 2, Rule122);
d. SC: in cases decided by CTA en banc (Sec. 1 Rule 116 A.M. No. 05-11-
07-CTA);
e. SC: in cases decided by Sandiganbayan (Sec. 1 Rule 45).
2. ****May the prosecution appeal a judgment of acquittal?
*GR: NO. The accused would be subjected to double jeopardy.
*XPNs:
a. If the dismissal is made upon motion or with the express consent of
the accused.
*XPNs to the XPN:
i. Insufficiency of the prosecution evidence; or
ii. Violation of the accused’s right to speedy trial.
b. If the dismissal is not an acquittal or based upon consideration of the
evidence on the merits;
c. If the question is purely legal so that should the dismissal be found
incorrect, the case shall be remanded for further proceedings to determine the
guilt or innocence of the accused; and
d. If there is a showing of grave abuse of discretion amounting to lack or

excess of jurisdiction, certiorari under Rule 65 may be available.
****If the conviction/acquittal is erroneous: remedy is certiorari.
3. Modes of review recognized by the Rules of Court
a. Ordinary appeal [TOM: this is a mode of appeal, not review]
b. Petition for review;
c. Petition for review on certiorari;
d. Automatic appeal.
4. Service of notice of appeal
*GR: Through personal service made upon the adverse party or his counsel.
*XPN: If personal service cannot be made, through:
a. Registered mail; or
b. By substituted service pursuant to Secs. 7 and 8 of Rule 13 (Sec. 4,
Rule122).
c. By publication, made in a newspaper of general circulation in the vicinity
once a week for a period not exceeding 30 days (Pamaran, 2010).
****The appellee may waive his right to notice of appeal. However, the
appellate court may, in its discretion, entertain an appeal notwithstanding
failure to give such notice if the INTERESTS OF JUSTICE so require (Sec.
5, Rule 122).
5.14.3. How appeal taken [AM 00-5-03-SC, 3 Oct 2002]

*******
Appeal to From decision of How taken
RTC MTC 1. File a notice of appeal with

the MTC; 2. Serve a copy of the
notice to the adverse party.
CA RTC: 1. Exercising its original jurisdiction for offenses 1. File a notice of appeal with
with imposable penalties less than reclusion perpetua or the RTC; 2. Serve a copy of the
life imprisonment; notice to the adverse party.
RTC: 2. Exercising its appellate jurisdiction. File a petition for review
under Rule 42.
RTC: 3. Where the imposable penalty is: a) life 1. File a notice of appeal with
imprisonment or reclusion perpetua; or b) a lesser the RTC;
penalty for offenses committed on the same occasion or 2. Serve a copy of the notice to the
which arose from the same occurrence that gave rise to the offense adverse party.
punishable reclusion perpetua or life imprisonment.
RTC: 4. Where the imposable penalty is death. Automatic review to CA
(Sec. 10, Sec. 122).
SC 1. All other appeals except: a) Decision of RTC where Petition for review on
the imposable penalty is life imprisonment or reclusion certiorari via Rule 45.
perpetua or a lesser penalty for offenses committed on
the same occasion or which arose from the same
occurrence that gave rise to the offense punishable by
reclusion perpetua or life imprisonment; and b) Decisions
of RTC imposing the penalty of death.
2. CA: a) When it finds that death penalty should be Automatic review (Sec. 13,
imposed. Rule 124).
2. CA: b) Where it imposes reclusion perpetua, life Notice of appeal (Sec. 13,
imprisonment or a lesser penalty. Rule 124).
3. Sandiganbayan: a) Exercising its appellate jurisdiction File a notice of appeal
for offenses where the imposable penalty is reclusion
perpetua or life imprisonment
3. SB: b) Exercising its original jurisdiction for offenses File a notice of appeal
where the imposable penalty is reclusion perpetua and (Sec. 13, Rule 124; Sec. 5, PD
life imprisonment. 1606 aa RA 8249).
4. SB: c) Cases not falling in paragraphs (a) and (b) above. Petition for review on
certiorari via Rule 45.
NB: By virtue of RA 9346, the imposition of death penalty is suspended.

[] Bar areas on appeals in criminal cases
1. [] Q: If the accused is meted the penalty of reclusion perpetua by the Regional
Trial Court, what should he do to have his case reviewed by the proper appellate
court? (1993 Bar Question) Suggested Answer: If the accused is meted the penalty
of reclusion perpetua by the Regional Trial Court, he should file a notice of
appeal to the Supreme Court [now to the CA] which has exclusive appellate
jurisdiction. See the table.
Period to withdraw an appeal:

1. An appellant may withdraw his appeal before the record has been forwarded
by the clerk of court to the proper appellate court as provided by Sec. 8, Rule
122, in which case the judgment shall become final (Sec. 12).
2. The court may also, in its discretion, allow the appellant to withdraw his
appeal, provided a motion to that effect is filed before the rendition of the
judgment in the case on appeal (Sec. 12, Rule 122).
5.14.4. Effect of appeal by any of several accused****

1. An appeal taken by one or more of several accused shall not affect those who
did not appeal, except insofar as the judgment of the appellate court is favorable and
applicable to the latter;
2. The appeal of the offended party from the civil aspect shall not affect the
criminal aspect of the judgment or order appealed from; and
3. Upon perfection of the appeal, ****the execution of the judgment or final

order appealed from shall be stayed as to the appealing party (Sec. 11, Rule
122).
****In People v. Olivo (G.R. No. 177768, July 27, 2009) an accused has
benefitted from the acquittal of his co-accused despite the former’s failure to
appeal from the judgment.
5.14.5. Grounds for dismissal of appeal

1. Failure of the record on appeal to show on its face that the appeal was taken
within the period fixed by these Rules;
2. Failure to file the notice317 of appeal or the record on appeal within the period
prescribed by these Rules;
3. Failure of the appellant to pay the docket and other lawful fees as provided
in Sec. 5 of Rule 40 and Sec. 4 of Rule 41;
4. Unauthorized alterations, omissions or additions in the approved record on
appeal as provided in Sec. 4 of Rule 44;
5. ****Failure of the appellant to serve and file the required number of copies
of his brief of memorandum within the time provided by these Rules;
6. ***Absence of specific assignment of errors in the appellant’s brief, or of
page references to the record as required in Sec. 13, paragraphs (a), (c), (d) and
(f) of Rule 44;
7. Failure of the appellant to take the necessary steps for the correction or
completion of the record within the time limited by the court in its order;
———————————————————————————————
317 Q: After receiving the adverse decision rendered against his client, the defendant; Atty. Sikat duly filed a
notice of appeal. For his part, the plaintiff timely filed a motion for partial new trial to seek an increase in the
monetary damages awarded. The RTC instead rendered an amended decision further reducing the monetary
awards. Is it necessary for Atty. Sikat to file a second notice of appeal after receiving the amended decision?
(3%) (2008 Bar Question) SUGGESTED ANSWER:
Yes, it is necessary for Atty. Sikat to file a second notice of appeal to the amended decision because a
substantial change was made to the original decision when the monetary awards were reduced in the
amended decision and in effect the amended decision superseded the original decision. A new notice of appeal
is required to comply with the required contents thereof in respect of the amended decision (Pacific Life
Assurance Corporation v. Sison, 299 SCRA 16 [1998]; Magdelana Estates, Inc. v. Caluag, 11 SCRA 333 [1964]).
5.15. Search and seizure [Rule 126]
5.15.1. Nature of search warrant 271

5.15.2. Distinguish from warrant of arrest 272
5.15.3. Application for search warrant, where filed 272
5.15.4. Probable cause 273
5.15.5. Personal examination by judge of the applicant and witnesses 275
5.15.6. Particularity of place to be searched and things to be seized 276
5.15.7. Personal property to be seized 278
5.15.8. Exceptions to search warrant requirement 280
5.15.8. a) Search incidental to lawful arrest (SILA) 280
5.15.8. b) Consented search (WAIVER OF RIGHT) 280
5.15.8. c) Search of moving vehicle 281
5.15.8. d) Check points; body checks in airport 281
5.15.8. e) Plain view doctrine/situation 282
5.15.8. f) Stop and frisk situation 282
5.15.8. g) Enforcement of custom laws (custom search) 283
5.15.8. h) Remedies from unlawful search and seizure 284
———————————————————————————————
ON WARRANTS
1. SEARCH WARRANT—It is an:
a. Order in writing issued in the name of the People of the Philippines;
b. Signed by a judge;
c. Directed to a peace officer, commanding him to search for personal property
described therein; and
c. Bring it before the court (Sec. 1, Rule 126).
****The warrant must name the person upon whom it is to be served
except in those cases where it contains a DESCRIPTIO PERSONAE such
as will enable the officer to identify the person. The description must be
sufficient to indicate clearly the proper person upon whom it is to be served
(People v. Veloso, G.R. No. L-23051, October 20, 1925).
2. GENERAL WARRANT: A search warrant which vaguely describes and
does not particularize the personal properties to be seized without definite
guidelines to the searching team as to what items might be lawfully seized, thus
giving the officers of the law discretion regarding what articles they should
seize. ****A general warrant is not valid as it infringes on the constitutional
mandate requiring particular description of the things to be seized. A search
warrant should not give the official discretion on what to search—it’s up to the
court to give such order. What if the court cannot give a description, say, shabu
(cannot give a quantity, etc) or illegal firearms? The latter is particular enough as
compared to a licensed firearm, but never should it be “any firearm”.
3. ****SCATTER-SHOT SEARCH WARRANT: It is a warrant issued for
more than one offense. It is INVALID because it violates the Constitution.
*There must be strict compliance with the constitutional and statutory
requirements. Otherwise, it is void. No presumptions of regularity are to be
invoked in aid of the process when an officer undertakes to justify it (People v.
Veloso, G.R. No. 23051, October 20, 1925). It will always be CONSTRUED
STRICTLY without going the full length of requiring technical accuracy.
5.15.1. Nature of search warrant

*It is in the nature of a CRIMINAL PROCESS and may be invoked only in
furtherance of public prosecutions. Search warrants have no relation to civil
process or trials and are not available to individuals in the course of civil
proceedings, nor for the maintenance of a mere private right. ****It is
INTERLOCUTORY IN CHARACTER because it leaves something more
to be done, which is the determination of the guilt of the accused.
5.15.2. Distinguish from warrant of arrest

Warrant of Arrest Search Warrant
Order directed to the peace officer to Order in writing in the name of the People of the
execute the warrant by taking the person Philippines signed by the judge and directed to the
stated therein into custody so that he may peace officer to search personal property described
be bound to answer for the commission of therein and to bring it to court.
the offense.
Does not become stale. Validity is for 10 days only.
May be served on any day and at any time To be served only in daytime unless the affidavit
of day or night. alleges that the property is on the person or in the place to
be searched.
Searching examination of witnesses is not The judge must personally conduct an examination of the
necessary. complainant and the witnesses.
Judge is merely called upon to examine and Examination must be probing. Not enough to merely
evaluate the report of the prosecutor and adopt the questions and answers asked by a previous
the evidence. investigator.
******In general, the requirements for the issuance of a search warrant are
more stringent than the requirements for the issuance of a warrant of arrest. The
violation of the right to privacy produces a humiliating effect which cannot be
rectified anymore. This is why there is no other justification for a search,
except a warrant. On the other hand, in a warrant of arrest, the person to be
arrested can always post bail to prevent the deprivation of liberty. *****NB: the
issuance of a warrant of arrest presupposes the existence of a criminal case, the

judge only has to determine its issuance through a preliminary
examination; but a search warrant can be issued even without a pending
case yet. ******Now, the prior personal examination of the complainant and
his witnesses is NOT REQUIRED318 in the issuance of a warrant of arrest,
while the same is MANDATORY in the issuance of a search warrant.
*****Scenario: Meralco inspectors enter the house and searched it without
search warrant. Are they liable for violation of the Bill of Rights? NO. They are
private persons, the BOR being a protection from unwarranted government
intrusion, but they can be sued under the RPC for Theft or Trespass to Dwelling
[Sesbreno vs. CA]
[] Distinguish SEARCH FROM SEIZURE
a. Search is an examination of a man’s house or other buildings or
premises or of his person for the discovery of contraband or illicit or stolen
property or some evidence of guilt to be used in the prosecution of a criminal
action for some offense with which he is charged.
b. Seizure, on the other hand, is the physical taking of a thing into
custody.
5.15.3. Application for search warrant, where filed

1. Court where to file an application for a search warrant
*GR: It should be filed with the court within whose territorial
jurisdiction the crime was committed.
*XPNs:
a. For compelling reasons, 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;
318Q: An information for murder was filed against Rapido. The RTC judge, after personally evaluating the
prosecutor's resolution, documents and parties' affidavits submitted by the prosecutor, found probable cause
and issued a warrant of arrest. Rapido's lawyer examined the rollo of the case and found that it only contained
the copy of the information, the submissions of the prosecutor and a copy of the warrant of arrest. Immediately,
Rapido's counsel filed a motion to quash the arrest warrant for being void, citing as grounds:
1. The judge before issuing the warrant did not personally conduct a searching examination of the
prosecution witnesses in violation of his client's constitutionally-mandated rights;
2. There was no prior order finding probable cause before the judge issued the arrest warrant.
May the warrant of arrest be quashed on the grounds cited by Rapido' s counsel? State your reason for
each ground. (2015)
A: NO, the warrant of arrest may not be quashed based on the grounds cited by Rapido’s counsel. In
the issuance of warrant of arrest, the mandate of the Constitution is for the judge to personally determine
the existence of probable cause. The words “personal determination,” was interpreted by the Supreme Court
in Soliven v. Makasiar, G.R. No. 82585, November 14, 1988, as the exclusive and personal responsibility of
the issuing judge to satisfy himself as to the existence of probable cause. *****What the law requires as
personal determination on the part of a judge is that he should not rely solely on the report of the
investigating prosecutor. Thus, personal examination of the complainant and his witnesses is, thus, not
mandatory and indispensable in the determination of probable cause for the issuance of a warrant of
arrest (People v. Joseph “Jojo” Grey, G.R. No. 10109, July 26, 2010). At any rate, there is no law or rule that
requires the Judge to issue a prior Order finding probable cause before the issuance of a warrant of arrest.
b. However, if the criminal action has been filed, the application shall only be
made in the court where the criminal action is pending (Sec. 2, Rule126);
c. In case of search warrant involving heinous crimes, illegal gambling, illegal
possession of firearms and ammunitions as well as violations of the Comprehensive Dangerous
Drugs Act of 2002, the Intellectual Property Code, the Anti- Money Laundering Act of 2001,
the Tariff and Customs Code, the Executive judges and whenever they are on official leave
of absence or are not physically present in the station, the Vice- Judges of RTCs of
****Manila and Quezon City shall have the authority to act on the application
filed by the NBI, PNP and the Anti- Crime Task Force (ACTAF)
(Administrative Matter No. 99-10-09-SC). The application shall be personally
endorsed by the heads of such agencies and shall particularly describe
therein the places to be searched and/ or the property or things to be seized
as prescribed in the Rules of Court. The Executive Judges and the Vice-Executive
Judges concerned shall issue the warrants if justified, which may be SERVED
OUTSIDE the territorial jurisdiction of said courts (Sps. Marimla v. People,
G.R. No. 158467, October 16, 2009).
[] Q: Barney filed a complaint with the NBI against Ted alleging that the
latter was engaged in the reproduction and distribution of counterfeit products
originally produced by Barney. Said products, allegedly, was produced in
Cavite but sold in Manila. Thus, NBI applied with the RTC of Manila for
warrants to search Ted’s premises in Cavite. The RTC of Manila issued a search
warrant covering Ted’s premises at Cavite. The NBI served the search warrants on
Ted’s premises and seized the said counterfeit products. Thereafter, Ted filed a
motion to quash the search warrant questioning the propriety of the venue
where the warrant was enforced. Should the motion to quash be granted? NO.
****As a general rule, search warrants issued by courts may be effectuated only
within their territorial jurisdiction. Thus, the RTC of Manila does not have the
authority to issue a search warrant for offenses committed in Cavite. Nonetheless,
this case involves a TRANSITORY OR CONTINUING OFFENSE OF
UNFAIR COMPETITION. Ted’s imitation of the general appearance of
Barney’s goods was done allegedly in Cavite. It sold the goods allegedly in
Metro Manila. The alleged acts would constitute a transitory or continuing
offense. Thus, clearly, under Sec. 2 (b), Rule 126; Sec. 168, R.A. 8293 and Art. 189
(1), RPC, Barney may apply for a search warrant in any court where any
element of the alleged offense was committed, including any of the courts
within the NCR (Sony Computer Entertainment, Inc. v. Supergreen, Inc., G.R.
No. 161823, March 22, 2007).
2. ****Requisites before a search warrant may be issued
a. It must be issued upon probable cause;
b. Probable cause must be determined by the issuing judge personally;
c. The judge must have personally examined, in the form of searching
questions and answers, the applicant and his witnesses;
d. The search warrant must particularly describe or identify the property
to be seized as far as the circumstances will ordinarily allow;

e. The warrant issued must particularly describe the place to be searched
and the persons or things to be seized;
It must be in connection with one specific offense;
f. The sworn statements together with the affidavits submitted by
witnesses must be attached to the record (Prudente v. Dayrit, G.R. No. 82870,
December 14, 1989).
****The warrant must not have been issued more than 10 days prior to the
search made pursuant thereto.
5.15.4. Probable cause

1. PC: It refers to the facts and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense has been committed and
that the objects sought in connection with the offense are in the place sought
to be searched (Burgos v. Chief of Staff, G.R. No. L-65334, December 26, 1984).
2. BASIS of probable cause: The basis must be the PERSONAL
KNOWLEDGE of the complainant or the witnesses he may produce and not
based on mere hearsay. ****The test of sufficiency of a deposition or affidavit
is whether it has been drawn in a manner that perjury could be charged thereon
and the affiant be held liable for damage caused. Mere affidavits of the
complainant and his witnesses are not sufficient. The judge has to take the
depositions of the complainant and the witnesses in writing and attach
them to the record (Mata v. Bayona, G.R. No. L-50720, March 26, 1984).
3. Factors to consider for the determination of probable cause
a. Time of the application in relation to the alleged offense committed. The nearer
the time at which the observation of the offense is alleged to have been made, the
more reasonable the conclusion of establishment of probable cause (Asian Surety
Insurance v. Herrera, G.R. No. L-25232, December 20, 1973).
b. There must be competent proof of particular acts or specific
omissions but only the best evidence under the circumstances is required (People v. Judge
Estrada, G.R. No. 124461, September 26, 1998).
4. ****Requirement of MULTI-FACTOR BALANCING TEST in
determining probable cause: It requires the officer to weigh the manner and
intensity of
a. the interference on the right of the people,
b. the gravity of the crime committed, and
c. the circumstances attending the incident.
5. Does the absence of probable cause on a particular article invalidate the entire
search warrant? NO. ****Such particular article may be severed from the rest of
the search warrant, provided that the remaining parts meet the
REQUIREMENTS OF PROBABLE CAUSE AND PARTICULARITY.
5.15.5. Personal examination by judge of the applicant and witnesses

1. ******Requisites of “Personal Examination by the Judge”319
a. The judge must examine the witness personally;320
b. The examination must be under oath;
c. The examination must be reduced to writing in the form of searching
questions and answers (Marinas v. Siochi, G.R. Nos. L-25707 & 25753-25754,
May 14, 1981);
d. It must be probing and exhaustive, not merely routinary or pro
forma (Roan v. Gonzales, G.R. No. 71410, November 25, 1986); and
e. It is done ex-parte and may even be held in the secrecy of chambers
(Mata v. Bayona, G.R. No. L-50720, March 26, 1984).
2. FORM of search warrant: The search warrant must be in writing and must
contain such particulars as the name of the person against whom it is directed,
the offense for which it was issued, the place to be searched and specific things
to be seized.
The warrant must name the person upon whom it is to be served except in
those cases where it contains a descriptio personae such as will enable the
officer to identify the person. The description must be sufficient to indicate clearly
the proper person upon whom it is to be served (People v. Veloso, G.R. No. L-
23051, October 20, 1925).
3. LIFETIME of a search warrant: A warrant is valid for 10 days from the date
of its issue. After such time, it is void (Sec. 10). A search warrant can be USED
ONLY ONCE, thereafter it becomes functus oficio, except when the search
conducted on one day was interrupted, in which case the same may be continued
under the same warrant the following day if not beyond the 10 day-period.
4. Rule with respect to the time of making a search
319 Q: A PDEA asset/informant tipped the PDEA Director Shabunot that a shabu laboratory was operating in a
house at Sta. Cruz, Laguna, rented by two (2) Chinese nationals, Ho Pia and Sio Pao. PDEA Director Shabunot
wants to apply for a search warrant, but he is worried that if he applies for a search warrant in any Laguna
court, their plan might leak out.
a) Where can he file an application for search warrant? (2012 BAR) PDEA Director may file an
application for search warrant in any court within the judicial region where the crime was committed (Sec. 2[b],
Rule 126).
b) What documents should he prepare in his application for search warrant? (2012 BAR) A: He should
prepare a petition for issuance of a search warrant and attach therein sworn statements and affidavits.
c) Describe the procedure that should be taken by the judge on the application. (2012 BAR) A:
******The judge must, before issuing the warrant, examine personally 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. 5, Rule 126). 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 the Rules (Sec. 6, Rule 126).
320 Which of the following MISSTATES a requisite for the issuance of a search warrant? (2011 BAR)
(A) The warrant specifically describes the place to be searched and the things to be seized.
(B) Presence of probable cause.
(C) The warrant issues in connection with one specific offense.
(D) Judge determines probable cause upon the affidavits of the complainant and his witnesses
*GR: A search warrant must be served at DAY TIME.

*XPN: A search warrant may be made AT NIGHT when it is positively
asserted in the affidavit that the property is on the person or in the place
ordered to be searched. The affidavit making such assertion must itself be
sufficient as to the fact so asserted, for if the same is based upon hearsay, the
general rule shall apply. ****A search warrant conducted at night without
direction to that effect is an unlawful search. The same rule applies where the
warrant left blank the “time” for making the search.
5. ****May the implementation of the search warrant be done on different days?
YES. It could be served at any time within its 10-day lifetime, and if its object
or purpose cannot be accomplished in one day, the same may not be used
for a different purpose on each day. After the articles for which the warrant was
issued have been seized, the same warrant cannot be utilized as authority to
make another search (Gorospe, 2006, citing Uy Kheytin v. Villareal, 42 Phil.
886).
The time must not be one which is intrusive or violative of one’s
PRIVACY, like at the middle of the night. Then, too, depending on the
locality, what may be reasonable time in one place would not be so in some other cases
(Gorospe, 2006).
[] What is a reasonable time to effect a search? ****7:30 P.M. is a
reasonable time for executing a search warrant in the metropolis. The exact
time of the execution of a warrant should be left to the discretion of the law
enforcement officers. And in judging the conduct of said officers, judicial notice
may be taken not just of the realities of law enforcement, but also the prevailing
conditions in the place to be searched. We take judicial notice that 7:30 P.M. in
a suburban subdivision in Metro Manila is an hour at which the residents are
still up-and-about. To hold said hour as an unreasonable time to serve a warrant
would not only hamper law enforcement, but could also lead to absurd results,
enabling criminals to conceal their illegal activities by pursuing such
activities only at night (Ibid.).
6. ****“KNOCK AND ANNOUNCE” PRINCIPLE: It states that officers
implementing a search warrant must ANNOUNCE their presence,
IDENTIFY themselves to the accused and to the persons who rightfully have
possession of the premises to be searched, and SHOW to them the search
warrant to be implemented by them and EXPLAIN to them said warrant in a
language or dialect known to and understood by them. The requirement is
not a mere procedural formality but is of the essence of the substantial
provision which safeguards individual liberty.
****A lawful entry is the indispensable predicate of a reasonable search.
A search would violate the constitutional guarantee against unreasonable search
and seizure if the entry was illegal, whether accomplished by force, or by threat or
show of force or obtained by stealth, or coercion.
7. Instances when an ****unannounced intrusion into the premises is
permissible—When:
a. A party whose premises or is entitled to the possession thereof refuses,
upon demand, to open it;
b. Such person in the premises already knew of the identity of the
officers and of their authority and persons;
c. The officers are justified in the honest belief that there is an imminent
peril to life or limb; or
d. Those in the premises, aware of the presence of someone outside, are
then engaged in activity which justifies the officers to believe that an escape
or the destruction of evidence is being attempted.
****The exceptions above are not exclusive or conclusive. There is no
formula for the determination of reasonableness. Each case is to be decided
on its own facts and circumstances (People v. Huang Zhen Hua, G.R. No.
139301, September 29, 2004).
8. Rules to be observed in case of search of a house or room: In order to insure
that the execution of the warrant will be fair and reasonable, and in order to
insure that the officer conducting the search shall not exceed his authority or
use unnecessary severity in executing the search warrant, as well as for the
officer’s own protection against unjust accusations, it is required that the
search be conducted in the presence of the:****
a. Lawful occupant of the place to be searched;
b. Any member of his family;
c. In their absence, in the presence of 2 witnesses of sufficient age and
discretion residing in the same locality (Sec. 8, Rule 126).
****A public officer or employee who exceeds his authority or uses
unnecessary severity in executing the warrant is liable under Art. 129, RPC.
5.15.6. Particularity of place to be searched and things to be seized

[] NB: we refer here to the particularity of the place to be searched—the name of
the person therein need not be identified; nor the exact amount of the materials to
be seized known (EG: it has to be stated that it’s shabu, although the exact
amount may be undetermined)321
321Q: Police operatives of the Western Police District, Philippine National Police, applied for a search warrant in
the Regional Trial Court for the search of the house of Juan Santos and the seizure of an undetermined
amount of shabu. The team arrived at the house of Santos but failed to find him there. Instead, the team
found Roberto Co. The team conducted a search in the house of Santos in the presence of Roberto Co and
barangay officials and found ten (10) grams of shabu. Roberto Co was charged in court with illegal
possession of ten grams of shabu. Before his arraignment, Roberto Co filed a motion to quash the search
warrant on the following grounds: (a) he was not the accused named in the search warrant; and (b) the warrant
does not describe the article to be seized with sufficient particularity. Resolve the motion with reasons. (4%)
The motion to quash should be denied. *****The name of the person in the search warrant is not
important. It is not even necessary that a particular person be implicated (Mantaring v. Roman, 259 SCRA
158 [1996]), so long as the search is conducted in the place where the search warrant will be served.
Moreover, it is sufficient to describe the shabu in an undetermined amount. Notably, what is to be seized
1. TESTS to determine particularity of the place to be searched

a. When the description therein is as specific322 as the ordinary
circumstance will allow (People v. Rubio, G.R. No. L-35500, October 27, 1932);
b. When the description express a conclusion of fact, not of law which
the warrant officer may be guided in making the search and seizure;
c. When the things described therein are limited to those which bear direct
relation to the offense for which the warrant is being issued.
2. Importance of describing with particularity the place to be searched and the
persons or things to be seized: ******The purpose of the rule is to leave the
officers of the law with no discretion regarding what articles they shall seize,
to the end that “unreasonable searches and seizures” may not be made that
abuses may not be committed (Stonehill v. Diokno, G.R. No. L-19550, June
19, 1967).323
is a particular drug and an undetermined amount thereof particularizes the things to be seized. (People
v. Tee, 395 SCRA 419 [2003]; People v. Dichoso, 223 SCRA 174, 184 [1993]).
322 Q: Suppose the judge issues the search warrant worded in this way: PP Plaintiff -versus- Ho Accused.
Criminal Case No. 007 forViolation of R.A. 9165 x- - - - - - - - - - - - - - - - - - - - - -x TO ANY PEACE

OFFICER Greetings: It appearing to the satisfaction of the undersigned after examining under oath PDEA
Director Shabunot that there is probable cause to believe that violations of Section 18 and 16 of R.A. 9165 have
been committed and that there are good and sufficient reasons to believe that Ho Pia and Sio Pao have in their
possession or control, in a two (2) door apartment with an iron gate located at Jupiter St., Sta. Cruz,
Laguna, undetermined amount of "shabu" and drug manufacturing implements and paraphernalia which
should be seized and brought to the undersigned. You are hereby commanded to make an immediate search, at
any time in the day or night, of the premises above described and forthwith seize and take possession of the
abovementioned personal property, and bring said property to the undersigned to be dealt with as the law
directs.
Witness my hand this 1st day of March, 2012. (signed) Judge XYZ
a) Cite/enumerate the defects, if any, of the search warrant. (2012 BAR) A: 1. The search warrant failed
to particularly describe the place to be searched and the things to be seized (Sec. 4, Rule 126); 2. The search
warrant commanded the immediate search, at any time in the day or night. The general rule is that a
search warrant must be served in the day time (Sec. 8, Rule 126), or that portion of the twenty-four hours in
which a man’s person and countenance are distinguishable (17 C.J. 1134). By way of exception, a search
warrant may be made at night when it is positively asserted in the affidavit that the property is on the
person or in the place ordered to be searched (Alvares v. CFI of Tayabas, G.R. No. L-45358, January 29,
1937). There is no showing that the exception applies.
b) Suppose the search warrant was served on March 15, 2012 and the search yielded the described
contraband and a case was filed against the accused in RTC, Sta. Cruz, Laguna and you are the lawyer of Sio Pao
and Ho Pia, what will you do? (2012 BAR) A: If I were the lawyer of Sio Pao and Ho Pia, *****I would file a
Motion to Quash the search warrant for having been served beyond its period of validity (Sec.14, Rule
126). A search warrant shall be valid only for ten days from its date. Thereafter, it shall be void (Sec. 10, Rule
126).
c) Suppose an unlicensed armalite was found in plain view by the searchers and the warrant was
ordered quashed, should the court order the return of the same to the Chinese nationals? Explain your answer.
(3%) A: *****NO, the Court should not order the return of the unlicensed armalite because it is
contraband or illegal per se (PDEA v. Bodett, G.R. No. 196390, September 28, 2011). The possession of an
unlicensed armalite found in plain view is mala prohibita. The same be kept in custodia legis.
323 Q: A search warrant was issued for the purpose of looking for unlicensed firearms in the house of Ass-asin,
a notorious gun for hire. When the police served the warrant, they also sought the assistance of barangay tanods
who were assigned to look at other portions of the premises around the house. In a nipa hut thirty (30) meters
away from the house of Ass-asin, a Barangay tanod came upon a kilo of marijuana that was wrapped in
newsprint. He took it and this was later used by the authorities to charge Ass-asin with illegal possession of
5.15.7. Personal property to be seized

1. Kinds of personal properties subject to seizure
a. Subject of the offense;
b. Stolen or embezzled and other proceeds or fruits of the offense; and
c. Used or intended to be used as the means of committing an offense
(Sec. 3, Rule126).
****It is not required that the property to be seized should be owned by
the person against whom the search warrant is directed. It is sufficient that the
person against whom the warrant is directed has CONTROL or POSSESSION
of the property sought to be seized (Burgos v. Chief of Staff, G.R. No. L-
65332, December 26, 1984).
2. Objects subject to seizure during a search incidental to an arrest of a person
even without a search warrant:
a. Dangerous weapons; and
b. Anything which may be used as proof of the commission of an offense.
5.15.8. Exceptions to search warrant requirement

INSTANCES OF VALID WARRANTLESS SEARCHES
5.15.8. a) Search incidental to lawful arrest (SILA)324

1. This includes searching the person who is arrested, in order to find and seize
the things connected with the crime as fruits or as the means by which it was
committed. In short, ****if the arrest is lawful, the corresponding search is also
lawful, but following the immediate control test.
2. Search made without warrant cannot be justified as an incident of arrest unless
the arrest itself was lawful. Why allowed?****
a. to protect the officer;
b. to prevent destruction of the evidence
*Hence in Valeroso, infra, those two purposes are not attendant. They did
marijuana. Ass-asin objected to the introduction of such evidence claiming that it was illegally seized. Is the
objection of Ass-asin valid? (2014)
A: The objection is valid. *****The search warrant specifically designates or describes the house
as the place to be searched. Incidentally, the marijuana was seized by the Barangay Tanods thirty (30) meters
away from the house of the accused. Since the confiscated items were found in a place other than the one
described in the search warrant, it can be considered as fruits of an invalid warrantless search, the
presentation of which as an evidence is a violation of petitioner’s constitutional guaranty against
unreasonable searches and seizure (Ruben Del Castillo v. People of the Philippines, G.R. No. 185128,
January 30, 2012). Besides, the search is also illegal because the marijuana confiscated in the nipa hut was
wrapped in a newsprint. Therefore, the same cannot be considered validly seized in plain view
(Abraham Miclat v. People of the Philippines, G.R. No. 176077, August 31, 2011).
324 b) May a house be searched without a search warrant?
c) How about a person, may he be searched without warrant? Explain. Answer: xxx
b-c) A house may not be searched without a warrant in view of the constitutional prohibition against
unreasonable searches and seizures. However, a person who has lawfully been arrested may be searched
without a warrant, inasmuch as the search is incidental to a lawful arrest. (Sec. 12 of Rule 126)
not have a search warrant. In fact, it was a SILA.

3. *****IMMEDIATE CONTROL TEST – A search incidental to a lawful
warrantless arrest may extend beyond the person where the exigencies of the
situation justify a warrantless search for dangerous weapons and to prevent the
arrestee from destroying evidence of the crime WITHIN REACH (People v.
Musa, G.R. No. 95329, January 27, 1993).
[] Valeroso vs. CA 2009: he was arrested without a warrant; tied to his toilet
in the first floor and the police went to the second floor and discovered
unlicensed firearms; he sent a “Letter Appeal” to the Court. He was acquitted
even when the judgment has become final & executory. Why? Justice is more
important than the rules :) The firearms should have been suppressed as
inadmissible in evidence because the second floor where they were found was no
longer within the immediate control of the accused.
[] Also in Espano vs. CA: there was an arrest in flagrante delicto, but the
officer went around the house to search and he found shabu. Inadmissibble
because the same was outside the immediate control of the accused.
5.15.8. b) Consented search (WAIVER OF RIGHT)

1. Consent cannot be presumed simply because the accused failed to object to
the search.
2. To constitute a waiver, the following requisites must concur:
a. The right exists;
b. The person involved had knowledge, actual or constructive, of the existence
of such rights; and
c. Actual intention to relinquish such rights (People v. Burgos, G.R. No.
92739, August 2, 1991).
****What if a police officer asked you if he can search your house and you
agreed? That’s not counted as a consented search because of the presence of
FEAR. Mere silence or acquiescence do not count as consent in the presence of
armed men.
5.15.8. c) Search of moving vehicle

*May validly be made without a search warrant because the vessel or aircraft
can quickly move out of the jurisdiction before such warrant could be secured
(People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991).
*A.k.a. Caroll Doctrine (Caroll vs. US): you need probable cause to search (which
is higher than mere suspicion). Why an exemption? If you apply for a search
warrant, the vehicle might disappear.
5.15.8. d) Check points; body checks in airport

1. Searches conducted in checkpoints are valid for as long as they
a. are warranted by the exigencies of public order and
b. are conducted in a way LEAST INTRUSIVE to motorists.
For as long as the vehicle is neither searched nor its occupants
subjected to a body search, and the inspection of the vehicle is limited to a
visual search, said routine checks cannot be regarded as violative of an
individual’s right against unreasonable search (People v. Vinecario, G.R. No.
141137, January 20, 2004).
****visual search only—and extensive search is allowed only when there is
probable cause (like in search of a moving vehicle)
[] Valmonte vs. CA: it’s not illegal per se, but it does not authorize the
inspector to let you step out of your vehicle, unless there’s probable cause.
2. In body checks in airports, passengers attempting to board an aircraft routinely
pass through metal detectors; their carry-on baggage as well as checked luggage are
routinely subjected to x-ray scans. Should these procedures suggest the
presence of suspicious objects, physical searches are conducted to determine
what the objects are. There is little question that such searches are reasonable,
given their MINIMAL INTRUSIVENESS, the gravity of the safety interests
involved, and the REDUCED PRIVACY EXPECTATIONS associated with
airline travel. Indeed, travelers are often notified through airport public
address systems, signs, and notices in their airline tickets that they are subject
to search and, if any prohibited materials or substances are found, such
would be subject to seizure. These announcements place passengers on
notice that ordinary constitutional protections against warrantless searches
and seizures do not apply to routine airport procedures (People v. Johnson,
G.R. No. 138881, December 18, 2000).
5.15.8. e) Plain view doctrine/situation

****It authorizes a search and a seizure without a warrant. For the doctrine to
apply, the following requisites must be met:
1. There must have been a legal presence in the place where the search is made,
i.e., the officer is not a trespasser;
2. The evidence was discovered INADVERTENTLY by an officer with a right
to be where he is,
3. The evidence is immediately apparently illegal;
4. There is no need for any further search325 to obtain the evidence (People v.
325 Q: In the course of serving a search warrant, the police finds an unlicensed firearm. Can the police take the
firearm even if it is not covered by the search warrant? If the warrant is subsequently quashed, is the police
required to return the firearm? Explain briefly. (5%)(2007 Bar Question) SUGGESTED ANSWER:
Yes, the police may take with him the “unlicensed” firearm although not covered by the search warrant.
Possession of an “unlicensed firearm” is a criminal offense and the police officer may seize an article which is
Compacion, G.R. No. 124442, July 20, 2001; People v. Sarap, G.R. No. 132165,
March 26, 2003; People v. Go; G.R. No. 144639, September 12, 2003). Hence, if
you need to open a package,326 there is no more plan view search, unless the
package outlines, say, a weapon, or it is transparent.
5.15.8. f) Stop and frisk327 situation

1. This is a limited protective search of the OUTER CLOTHING of a person
to determine the presence of weapons. Probable cause is not required but a
genuine reason (not mere suspicion) must exist, in the light of the officer’s
experience and surrounding circumstances, to warrant the belief that the
persons has concealed weapons (Malacat v. Court of Appeals, G.R. No.
123595. December 12, 1997). Its object is either to:
a. Determine the identity of a suspicious individual; or
b. Maintain the status quo momentarily while the police officer seeks to obtain
more information.
2. The officer may search the outer clothing of the person in an attempt to
discover weapons which might be used to assault him (Manalili v. CA, G.R.
No. 113447, October 9, 1997).
the “subject of an offense.” This is especially so considering that the “unlicensed firearm” appears to be
in “plain view” of the police officer when he conducted the search. Even if the warrant was subsequently
quashed, the police is not mandated to return the “unlicensed firearm.” The quashal of the search
warrant did not affect the validity of the seizure of the “unlicensed firearm.” Moreover, returning the
firearm to a person who is not otherwise allowed by law to possess the same would be tantamount to
abetting a violation of the law.
326
[] Bar 2008: The search warrant authorized the seizure of “undetermined quantity of shabu”.
During the service of the search warrant, the raiding team also recovered a kilo of dried
marijuana leaves wrapped in newsprint. The accused moved to suppress the marijuana leaves as
evidence for the violation of Sec. 11 of the Comprehensive Dangerous Drugs Act of 2002 since they
were not covered by the search warrant. The State justified the seizure of the marijuana leaves under
the “plain view” doctrine. There was no indication of whether the marijuana leaves were
discovered and seized before or after the seizure of the shabu. If you are the judge, how would you
rule the motion to suppress?
It should be granted. ****The search warrant violates the constitutional and statutory
requirement that should particularly describe the person or things to be seized (Sec. 2, Art. III, 1987
Constitution; Sec. 2, Rule 126). The “plain view” doctrine cannot be invoked because the
marijuana leaves were wrapped in newsprint. Besides the marijuana leaves are not the subject of
the search warrant. There was no evidence as to whether the marijuana leaves were discovered
and seized before or after the seizure of the shabu. If they were discovered after the seizure of the shabu,
then they could not have been seized in plain view. The confiscation of the marijuana leaves must
not be upheld, hence rendering the same inadmissible in evidence against the accused.
327 Q: What is a Terry search (or so-called “stop and frisk")? Is it justified under existing law and jurisprudence?
A Terry search is a stop-and-search without a warrant. It is justified when conducted by police
officers on the bases of prior confidential information which were reasonably corroborated by other
attendant matters. (Aniag, Jr. vs. Comelec, 237 SCRA 424)
Alternative Answer: A Terry search is one conducted without a search warrant and is designed
either to determine the identity of a suspicious individual or to maintain the status quo while the police
officer is obtaining more information. (Posadas vs. CA, 188 SCRA 288).
3. This is also called Terry Search328 [Terry vs. Ohio]. Ground: good reason to
believe that a crime may be afoot.
5.15.8. g) Enforcement of custom laws (custom search)

*like your balikpapan boxes,
5.15.8. h) Remedies from unlawful search and seizure

1. Parties who may question the validity of search and seizure: It can be
contested only by the party whose rights have been impaired thereby, and
****that the objection to an unlawful search and seizure is PURELY
PERSONAL and cannot be availed by third parties (Stonehill v. Diokno, G.R.
L-19550, June 19, 1967).
2. Remedies against an unlawful search******
a. Motion to quash the search warrant;
b. Motion to suppress as evidence the objects illegally taken
(EXCLUSIONARY RULE – any evidence obtained through unreasonable
searches and seizures shall be inadmissible for any purpose in any proceeding);
c. Replevin,329 if the objects are legally possessed; and
328 Q: As Cicero was walking down a dark alley one midnight, he saw an "owner-type jeepney" approaching him.
Sensing that the occupants of the vehicle were up to no good, he darted into a corner and ran. The
occupants of the vehicle- elements from the Western Police District - gave chase and apprehended him.
The police apprehended Cicero, frisked him and found a sachet of 0.09 gram of shabu tucked in his waist
and a Swiss knife in his secret pocket, and detained him thereafter. Is the arrest and body-search legal? (3%)
The arrest and body-search was legal. Cicero appears to be alone "walking down a dark alley" and
at midnight. There appears probable cause for the policemen to check him, especially when he darted into a
corner (presumably also dark) and run under such circumstance. Although the arrest came after the body-
search where Cicero was found with shabu and a Swiss knife, the body search is legal under the "Terry search"
rule or the "stop and frisk" rule. And because the mere possession, with animus, of dangerous drug (the
shabu) is a violation of the law (Rep. Act 9165), the suspect is in a continuing state of committing a crime
while he is illegally possessing the dangerous drug, thus making the arrest tantamount to an arrest in
flagrante: so the arrest is legal and correspondingly, the search and seizure of the shabu and the concealed knife
may be regarded as incident to a lawful arrest.
ALTERNATIVE ANSWER: No. The arrest and the body-search were not legal. In this case, Cicero
did not run because the occupant’s of the vehicle identified themselves as police officers. He darted into
the corner and ran upon the belief that the occupants of the vehicle were up to no good. Cicero's act of
running does not show any reasonable ground to believe that a crime has been committed or is about to
be committed for the police officers to apprehend him and conduct body search. Hence, the arrest was illegal
as it does not fall under any of the circumstances for a valid warrantless arrest provided in Sec. 5 of Rule 113 of
the Rules of Criminal Procedure.
329 Q: In a buy-bust operation, the police operatives arrested the accused and seized from him a sachet of
shabu and an unlicensed firearm. The accused was charged in two Informations, one for violation of the
“Dangerous Drugs Act", as amended, and another for illegal possession of firearms. The accused filed an
action for recovery of the firearm in another court against the police officers with an application for the
issuance of a writ of replevin. He alleged in his Complaint that he was a military informer who had been
issued a written authority to carry said firearm. The police officers moved to dismiss the complaint on the
ground that the subject firearm was in custodia legis. The court denied the motion and instead issued the writ
of replevin.
d. Certiorari, where the search warrant is a patent nullity.

[] The remedies are ALTERNATIVE. ****If a motion to quash is
denied, a motion to suppress cannot be availed consequently.330 The
illegality of the search warrant does not call for the return of the things
seized, the possession of which is prohibited by law. However, those personalties seized
in violation of the constitutional immunity whose possession is not illegal or
unlawful per se ought to be returned to their rightful owner or possessor.
3. VENUE of filing a motion to quash search warrant
a. It may be filed and acted upon only by the court where the action has
been instituted;
b. If no criminal action has been instituted, it may be filed in and resolved by
the court that issued the 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 (Sec. 14, Rule 126).
4. Rule with respect to waiver of legality and admissibility of a search warrant:
Objection to the legality of the search warrant, or as to the admissibility of the
evidence obtained is ****deemed waived where no objection of the search
warrant was raised during the trial of the case nor to the admissibility of the
evidence obtained through said warrant (Demaisip v. CA, G.R. No. 89393,
January 25, 1991).
————————————————————————————————
(a) Was the seizure of the firearm valid? Yes, the seizure of the firearm was valid because it was
seized in the course of a valid arrest in a buy-bust operation. (Sec. 12 and 13 of Rule 126) A search
warrant was not necessary. (People v. Salazar, 266 SCRA 607 [1997]).
(b) Was the denial of the motion to dismiss proper? (2003 Bar Question) The denial of the motion to
dismiss was not proper. The court had no authority to issue the writ of replevin whether the firearm was
in custodia legis or not. The motion to recover the firearm should be filed in the court where the criminal
action is pending.
330 But see this bar problem: When a Motion to Quash search warrant is denied, the best remedy is: (2012 BAR)
a. appealthedenialorder.
b. file a motion to suppress evidence.
c. file an injunction suit.
d. file a certiorari petition.
Suggested answer is (b) and alternative answer is (d). TOM thinks it should be (d) as discussed supra.
5.16. Provisional remedies [Rule 127]
5.16.1. Nature 286

5.16.2. Kinds of provisional remedies 286
————————————————————————————————
5.16.1. Nature
*Provisional Remedies
1. They are those to which parties may resort for the preservation or protection
of their rights or interests and for no other purposes during the pendency of the
action.
2. They are applied to a pending litigation for the purpose of securing the
judgment or preserving the status quo; and in some cases after judgment, for the
purpose of preserving or disposing of the subject matter (Cala v. Roldan, G.R. No. L-252,
March 30, 1946).
5.16.2. Kinds of provisional remedies

1. Kinds of Provisional Remedies available in criminal cases****
a. Attachment (Rule 57);
b. Preliminary injunction (Sec. 58);
c. Receivership (Rule 59);
d. Delivery of personal property (Rule 60);
e. Support pendente lite (Rule 61): this is applicable for seduction or rape,
but not for acts of lasciviousness.
****Why are there provisional remedies in criminal cases? Because of Art
100 RPC: each criminal case has a corresponding civil aspect, generally speaking.
2. ATTACHMENT: It is a remedy afforded to the offended party to have the
property of the accused attached as security for satisfaction of any judgment
that may be recovered from the accused.
[] Party who may apply for attachment: The aggrieved party in whose
behalf the civil aspect of the criminal action is prosecuted may apply for the
issuance of a writ of preliminary attachment, he being the person primarily and
directly interested thereby. The prosecutor in the criminal action may make
such an application in behalf of or for the protection of the interest of the
offended party.
[] Cases wherein attachment is made available
a. When the accused is about to abscond from the Philippines
b. When the criminal action is based on a claim for money or property
embezzled or fraudulently misapplied or converted to the use of the accused
who is a public officer, or any officer of a corporation, or an attorney, factor,
broker, agent, or clerk, in the course of his employment as such, or by any person
in a fiduciary capacity, or for a willful violation of a duty;
c. When the accused has concealed, removed or disposed of his property
or is about to do so;
d. When the accused resides outside the Philippines (Sec. 2, Rule127)
————————————————————————————————
VI. Evidence
The notes on the Rules on Evidence are treated separately (Part III)
VII. Revised Rules on Summary Procedure
7.1. Cases covered by the rule 288

PLEADINGS: allowed and prohibited 288
7.2. Effect of failure to answer 288
7.3. Preliminary conference and appearances of parties 291
————————————————————————————————
7.1. Cases covered by the rule

1. Civil cases:
a. All cases of FORCIBLE ENTRY AND331 UNLAWFUL
DETAINER, [NB: ejectment cases only concern possession, hence, option to
purchase does not apply332] ******irrespective of amount of damages or
unpaid rentals333 sought to be recovered provided when attorney’s fees are
331 Q: State the steps for bringing up to the Supreme Court: (1994 Bar Question) 1) a decision of the Municipal
Trial Court of Manila in an ejectment case. Answer:
1) To bring up a decision of the Municipal Trial Court of Manila in an ejectment case to the Supreme
Court, it must first be appealed to the Regional Trial Court by notice of appeal, and the decision of the
Regional Trial Court may be appealed to the Court of Appeals through a petition for review after which the
decision of the Court of Appeals may be elevated to the Supreme Court through a petition for review on
certiorari. The decision of the Regional Trial Court may be appealed directly to the Supreme Court on questions
of law only through a petition for review on certiorari
332 Q: BB files a complaint for ejectment In the Metropolitan Trial Court on the ground of non-payment of
rentals against JJ. After two days, JJ files In the Regional Trial Court a complaint against BB for specific
performance to enforce the option to purchase the parcel of land subject of the ejectment case. What is the
effect of JJ’s action on BB’s complaint? Explain. (5%) (2000 Bar Question) SUGGESTED ANSWER:
There is no effect. *****The ejectment case involves possession de facto only. The action to enforce
the option to purchase will not suspend the action of ejectment for non-payment of rentals. [Wilmon Auto
Supply Corp. v. Court of Appeals, 208 SCRA 108 [1992]).
333 Q: Filomeno brought an action in the Metropolitan Trial Court (MeTC) of Pasay City against Marcelino
pleading two causes of action. The first was a demand for the recovery of physical possession of a parcel of
land situated in Pasay City with an assessed value of P40,000; the second was a claim for damages of
P500,000 for Marcelino’s unlawful retention of the property Marcelino filed a motion to dismiss on the
ground that the total amount involved, which is P540,000, is beyond the jurisdiction of the MeTC. Is Marcelino
correct? (4%)(2008 Bar Question) SUGGESTED ANSWER:
No, Marcelino is not correct. Under Rep. Act No. 7691, Metropolitan Trial Courts and other courts of
the first level have been vested with exclusive original jurisdiction in all civil actions which involved title
to, or possession of real property or any interest therein where the assessed value of the property or interest
therein does not exceed P20,000.00, or in civil actions in Metro Manila, where such assessed value does not
exceed P50,000.00 exclusive of interest, damages of whatever kind, attorney’s fees, litigation expenses and costs.
Pasay City where the action for recovery of physical possession was filed, is part of Metro Manila and therefore
has exclusive jurisdiction over the parcel of land situated therein whose assessed value is P40,000.00. The claim
for damages of P500,000.00 for the unlawful retention of the land involved is not determinative of the
awarded, the same shall not exceed Php 20,000.00;334 and

b. All other civil cases, EXCEPT PROBATE proceedings, where the total
amount of the plaintiff’s claim does not exceed Php 100,000 or Php 200,000 (in
Metropolitan Manila), exclusive of interest and costs (As amended by A.M. No.
02-11-09-SC effective November 12, 2002).
2. Jurisdictional amounts:
i. Metro Manila: 200K and below;
ii. Outside Metro Manila: 100K and below.
3. Criminal cases:******
a. Violations of TRAFFIC laws, rules and regulations;
b. Violations of RENTAL law;335
court’s jurisdiction which is based on the nature of the action. The claim for damages of P500,000.00 is just a
consequence of the unlawful detention of the property subject of the action, which should not be taken
separately from the land. Filomeno has only one cause of action which is the action for recovery of possession
of the land against Marcelino, with damages. [TOM thinks that the action is plain unlawful detainer and so it is
lodged with the MeTC irrespective of the assessed value of the land, neither of the claim for damages based on
the unlawful retention of the said property].
334 Q: Albert forcibly entered and occupied the house and lot in Quezon City owned by his neighbor Carissa.
Carissa immediately sued Albert for recovery of the property. She also claimed damages amounting to
P100,000.00, other undetermined losses as a result of the forcible entry, and attorney’s fees of P25.000.00.
Albert sets up affirmative defenses in his answer without questioning Carissa's title over the property. (1995 Bar
Question)
A. Is the case triable under summary procedure by the Metropolitan Trial Court of Quezon
City?Explain: *****Yes, because all actions for forcible entry and unlawful detainer are subject to summary
procedure irrespective of the amount of damages claimed, but the attorney’s fees should not exceed
P20,000.00.
B. May Carissa present evidence of title? Explain: Yes, but only to determine the question of
possession. (BP 129 as amended). Albert may raise the issue of lack of barangay conciliation prior to the
filing of the complaint.
[] For failure of the tenant, X, to pay rentals, A, the court-appointed administrator of the estate of
Henry Datu, decides to file an action against the former for the recovery of possession of the leased premises
located In Davao City and for the payment of the accrued rentals In the total amount of P25,000.00. (1991 Bar
Question) Is prior referral to the Lupon under P.D. No. 1508 necessary? Answer: *****No, because the law
applies only to disputes between natural person, and does not apply to juridical person such as the estate of
a deceased. [Vda. de Borromeo v. Pogoy, 126 SCRA 217)
335 But this is Civil, related to lease: Q: Landlord, a resident of Quezon City, entered into a lease contract with
Tenant, a resident of Marikina City, over a residential house in Las Pinas City. The lease contract provided,
among others, for a monthly rental of P25,000.00, plus ten percent (10%) interest rate in case of non-payment
on its due date. Subsequently, Landlord migrated to the United States of America (USA) but granted in favor of
his sister Maria, a special power of attorney to manage the property and file and defend suits over the property
rented out to Tenant. Tenant failed to pay the rentals due for five (5) months. Maria asks your legal advice on
how she can expeditiously collect from Tenant the unpaid rentals plus interests due.
a. What judicial remedy would you recommend to Maria?(2014) A: I will advise Maria to immediately
send a letter to the tenant demanding the immediate payment of the unpaid rentals plus interests due. If the
tenant refuses, Maria can avail any of the following remedies:
1. A complaint under A.M. No. 08-8-7-SC or the Rules of Procedure for Small claims
cases. *****Maria should nonetheless waive the amount in excess of P100,000 [now, 200K] in order for her to
avail of the remedy under the said Rules.
2. A complaint for collection of sum of money under the Rules on Summary Procedure, since
Maria is only claiming the unpaid rentals and interest due from tenant.
3. If the tenant refuses or is unable to pay the rentals within 1 year from the last demand
c. Violations of municipal or city ORDINANCES;

d. All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding 6 months [up to arresto
mayor336] or a fine not exceeding Php 1,000.00, or both, IRRESPECTIVE OF
OTHER IMPOSABLE PENALTIES, accessory or otherwise, or of the civil liability arising
there from. Provided however, that in **offenses involving damage to property
through criminal negligence, this Rule shall govern where the imposable fine
does not exceed Php 10,000.00; and
e. Violation of BP 22 (Sec. 1, Revised Rules on Summary Procedure).
4. Commencement of a criminal case: The filing of criminal cases falling within
the scope of this Rule shall be **either by complaint or by information:
******Provided, however, that in Metropolitan Manila and in Chartered Cities,
such cases shall be commenced ONLY BY INFORMATION,337 except when the
to vacate and pay, I would advise Maria to file an action for Unlawful Detainer.
b. Where is the proper venue of the judicial remedy which you recommended? A:
1. If Maria decides to file a complaint for collection of sum of money under the Rules of
Summary Procedure or Small Claims, the venue is the residence of the plaintiff or defendant, at the
election if the plaintiff (Sec. 2, Rule 4). Hence it may be in Quezon City or Marikina City, at the option of
Maria.
2. If Maria files an action for Unlawful detainer, the same shall be commenced and tried in the
Municipal Trial Court of the municipality or city wherein the real property involved, or a portion thereof is
situated (Sec. 1, Rule 4). Therefore, the venue is Las Pinas City.
c. If Maria insists on filing an ejectment suit against Tenant, when do you reckon the one (1)-year
period within which to file the action? A: The reckoning point for determining the one-year period within which
to file the action is the receipt if the last demand to vacate and pay (Sec. 2, Rule 70).
336 Q: Edison was charged with the crime of less serious physical injuries in the Metropolitan Trial Court of
Manila. Under the Revised Penal Code, the penalty prescribed for this offense is arresto mayor, Aside from the
recital of the facts constituting the offense, the information alleged that the offended party suffered actual
damages in the amount of P25,000. Instead of submitting his counter- affidavits as required by the court,
Edison filed a “motion to quash” contending that the court had no jurisdiction over the case since the
amount claimed as damages exceeds the jurisdictional limit of trial courts in civil cases. If you were the
judge trying the case, what would you do with the-motion filed? How would you dispose of the question of
jurisdiction raised in the said motion? Explain. (1989 Bar Question) Answer:
*****I would deny the motion to quash inasmuch as such a motion is not allowed in Summary
Procedure. The criminal case where the penalty prescribed by law for the offense charged does not exceed six
months of imprisonment is governed by Summary procedure. On the question of jurisdiction, *****Summary
Procedure applies irrespective of the civil liability arising from the offense. Hence the fact that the civil
liability exceeds P20,000 does not deprive the Metropolitan Trial Court of jurisdiction. (Sec. B-4)
337 Q: SPO1 CNC filed with the Metropolitan Trial Court in Quezon City (MeTC-QC) a sworn written
statement duly subscribed by him, charging RGR (an actual resident of Cebu City') with the offense of
slight physical injuries allegedly inflicted on SPS (an actual resident of Quezon City). The Judge of the
branch to which the case was raffled thereupon issued an order declaring that the case shall be governed by
the Rule on Summary Procedure in criminal cases. Soon thereafter, the Judge ordered the dismissal of the
case for the reason that it was not commenced by information, as required by said Rule. Sometime later,
based on the same facts giving rise to the slight physical injuries case, the City Prosecutor filed with the same
MeTC-QC an information for attempted homicide against the same RGR. In due time, before arraignment,
RGR moved to quash the information on the ground of double jeopardy and after due hearing, the Judge
granted his motion.
[] Was the dismissal of the complaint for slight physical injuries proper? Yes, the dismissal of the
complaint for slight physical injuries is proper because in Metropolitan Manila and in chartered cities, the case
has to be commenced only by information. (Sec. 11, Revised Rule on Summary Procedure).
offense cannot be prosecuted de officio.

The complaint or information shall be accompanied by the affidavits of
the complainant and of his witnesses in such number of copies as there are
accused plus 2 copies for the court's files. ******If this requirement is not
complied with within 5 days from date of filing, the case may be
DISMISSED (Sec. 11, Ibid.).
PLEADINGS: allowed and prohibited

1. Pleadings allowed in civil cases—The only pleadings allowed to be filed are
the:
a. complaints,
b. compulsory counterclaims [as long as it is within the jurisdiction of the
MTC];338 ******NB: While in small claims cases, permissive counterclaim is
allowed as long as the amount and nature thereof is within the coverage of the Rule on
Small Claims, the same is NOT ALLOWED in Summary Procedure.339
c. cross-claims pleaded in the answer, and
d. the answers to these pleadings (Sec. 3(a), ibid.).
2. PROHIBITED pleadings and motions in both civil and criminal cases in
[] Was the grant of the motion to quash the attempted homicide information correct? Reason (5%)
(2004 Bar Question): No, the grant of the motion to quash the attempted homicide information on the ground
of double jeopardy was not correct, because there was no valid prosecution for slight physical injuries.
338 Q: Andres filed a case for unlawful detainer before the Metropolitan Court of Manila against Lito for
refusing to vacate the leased premises after the expiration of his Lease Contract and for non-payment of rentals.
As counterclaim, Lito claimed moral damages in the amount of P15,000.00.
A. May the Metropolitan Court proceed to try and decide the case including the claim of P15,000.00?
Explain. Yes, because the amount of the counterclaim, P15,000.00, is within the jurisdiction of the
Metropolitan Court which has also exclusive original jurisdiction over the unlawful detainer case. (Agustin
vs. Bocalan, 135 SCRA 340).
B. In case Lito is adjudged to vacate the leased premises and to pay the accrued rentals in arrears, how
can he stay the execution of the judgment? Lito must appeal; file a supersedeas bond in an amount
equivalent to the rents, damages and costs accruing down to [from] the time of the judgment; and deposit
with the Regional Trial Court the amount of the reasonable value of the use and occupation of the premises
for the preceding month or period at the rate determined by the judgment, on or before the tenth day of
each succeeding month or period. (Sec. 8 of Rule 70)
C. How does unlawful detainer differ from forcible entry? (1988 Bar Question) ******In unlawful
detainer, the possession is legal at the beginning but subsequently becomes illegal after the expiration or
termination of the right to hold possession, whereas in forcible entry the possession is illegal from the
beginning because the entry was made by force, intimidation, threat, strategy or stealth.
339 Q: In an action for unlawful detainer in the Municipal Trial Court (MTC), defendant X raised in his Answer
the defense that plaintiff A is not the real owner of the house subject of the suit. X filed a counterclaim against A
for the collection of a debt of P80.000 plus accrued interest of P15,000 and attorney’s fees of P20.000.
1. Is X's defense tenable? [3%] SUGGESTED ANSWER: No. X's defense is not tenable if the
action is filed by a lessor against a lessee. However, if the right of possession of the plaintiff depends on
his ownership then the defense is tenable.
2. Does the MTC have jurisdiction over the counterclaim? [12%] (1998 Bar Question). The
counterclaim is within the jurisdiction of the Municipal Trial Court which does not exceed P100,000.00 [now
200K for Summary Proceedings], because the principal demand is P80,000.00, exclusive of interest and
Attorney's fees. (Sec. 33, B.P. Big. 129, as amended.)'. *****However, inasmuch as all actions of forcible entry
and unlawful detainer are subject to summary procedure and since the counterclaim is only permissive, it
cannot be entertained by the Municipal Court. (Secs. 1A(1) and 3(A) of Revised Rule on Summary Procedure.)
SumPro340 and in Small Claims (civil only)**

SUMMARY PROCEEDING SMALL CLAIMS
a. Motion to dismiss the complaint or to quash **They are the same except for MTD
the complaint or information except on the 1. Motion to dismiss the complaint: **the
ground of (i) lack of jurisdiction over the amended rules on small claim removed the
subject matter, or (ii) failure to refer the case to exception on motion to dismiss based on
the Lupong Tagapamayapa in cases covered by lack of jurisdiction. The grounds for the
the Katarungang Pambarangay Law. *Remedy: file dismissal of the claim, under rule 16 of the rules
an Answer and use the grounds as affirmative of court, should be pleaded (Sec. 11, A.M. No.
defenses. 08-8-7-SC).
b. Motion for a bill of particulars; 2. Motion for a bill of particulars;
c. Motion for new trial, or for reconsideration 3. Motion for new trial, or for reconsideration
of a judgment, or for opening of trial; of a judgment, or for reopening of trial;
d. Petition for relief from judgment; 4. Petition for relief from judgment;
e. Motion for extension of time to file pleadings, 5. Motion for extension of time to file pleadings,
affidavits or any other paper; affidavits, or any other paper;
f. Memoranda; 6. Memoranda;
g. **Petition for certiorari, mandamus, or 7. Petition for certiorari, mandamus, or
prohibition against any interlocutory order issued by the prohibition against any interlocutory order issued by
court; the court;
h. Motion to declare the defendant in default; 8. Motion to declare the defendant in default;
**Remedy: file a motion to render judgment—can 9. Dilatory motions for postponement;
be done MP by the court. 10. Reply;
i. Dilatory motions for postponement; 11. Third-party complaints; and
j. **Reply; 12. Interventions (Sec. 14, A.M. No. 08-8-7-SC).
k. Third party complaints;
l. Interventions (Sec. 19, Ibid.).
******Since MTD is a prohibited pleading, what is the remedy of the plaintiff?

Ask the Court to render JUDGMENT BASED ON THE PLEADINGS, not
to declare the defendant in default.
[] Bar areas on these prohibited pleadings:
1. The prohibition only applies on the first level courts hearing them, not the
appellate court reviewing the same case;341
340
341 Q: Juan Santos appeals the decision against him to the Regional Trial Court (RTC) which affirmed in
toto the lower court’s decision. Juan Santos then filed a motion for reconsideration. Maria Cruz moves to
strike out the motion for reconsideration as it is a prohibited pleading under the Rules on Summary Procedure.
Is this tenable? Decide with reasons. (1990 Bar Question) Answer:
No, because the rule on prohibited pleadings in summary procedure is applicable only to the
Metropolitan and Municipal Trial Courts (Glakihaca v. Aquino. Jan. 12.1990)
[] Q: Suppose that instead of filing a motion for reconsideration with the RTC, Juan Santos filed a
notice of appeal with the RTC stating that he is appealing to the Court of Appeals on the ground that the
judgment is contrary to the law and the facts of the case. As lawyer for Maria Cruz, on what procedural
ground will you oppose the appeal? Explain your answer. (1990 Bar Question) Answer: I would oppose the
appeal on the ground that the proper procedure is the filing of a petition for review with the Court of
Appeals. (Sec. 22 of BP 129). *****The filing of a notice of appeal is proper if the case was originally filed
in the Regional Trial Court.
2. When the condition precedent342 of barangay conciliation proceedings is absent:

shall be dismissed without prejudice, and may be revived only after that
requirement shall have been complied with.343
3. While a motion for reconsideration is not allowed344 under summary
[] Q: In the same controversy, after the demand letter was sent and Juan Santos failed to comply
therewith, the lawyer of Maria Cruz filed the ejectment case with the Municipal Court of Antipolo without
going through the conciliation process at the barangay level as required under Presidential Decree No.
i508. The amount due is P1,500.00, hence, summary procedure was followed. May Juan Santos file a motion to
dismiss for non-compliance with the requirements of the said decree? State your reasons. (1990 Bar
Question) Answer:
No, because a motion to dismiss is not allowed in summary procedure [TOM: it is allowed when the
barangay conciliation was not conducted]. Moreover, the requirement of prior recourse to barangay conciliation
is not applicable since the parties did not reside in the same city or municipality or did not reside in the same
city or municipality or in adjoining barangays of different cities or municipalities. (Tavera v. Veloso, U7 SCRA 613)
342 Q: The spouses Juan reside in Quezon City. With their lottery winnings, they purchased a parcel of land in
Tagaytay City for P100,000.00. In a recent trip to their Tagaytay property, they were surprised to see hastily
assembled shelters of light materials occupied by several families of informal settlers who were not there
when they last visited the property three (3) months ago. To rid the spouses’ Tagaytay property of these informal
settlers, briefly discuss the legal remedy you, as their counsel, would use; the steps you would take; the court
where you would file your remedy if the need arises; and the reason/s for your actions. (2013 BAR)
A: As counsel of spouses Juan, I will file a special civil action for Forcible Entry. The Rules of Court
provides that a person deprived of the possession of any land or building by force, intimidation, threat, strategy
or stealth may at any time within (one) 1 year after such withholding of possession bring an action in the
proper Municipal Trial Court where the property is located. This action which is summary in nature seeks to
recover the possession of the property from the defendant which was illegally withheld by the latter (Sec. 1, Rule
70). An ejectment case is designed to restore, through summary proceedings, the physical possession of any
land or building to one who has been illegally deprived of such possession, without prejudice to the settlement
of the parties’ opposing claims of juridical possession in appropriate proceedings (Heirs of Agapatio T. Olarte
and Angela A. Olarte et al. v. Office of the President of the Philippines et al., G.R. No. 177995, June 15, 2011).
In Abad v. Farrales, G.R. No. 178635, April 11, 2011, the Supreme Court held that two allegations are
indispensable in actions for forcible entry to enable first level courts to acquire jurisdiction over them: first,
that the plaintiff had prior physical possession of the property; and, second, that the defendant deprived him
of such possession by means of force, intimidation, threats, strategy, or stealth.
******However, before instituting the said action, I will first endeavor to amicably settle the
controversy with the informal settlers before the appropriate Lupon or Barangay Chairman. If there is no
agreement reached after mediation and conciliation under the Katarungang Pambarangay Law, I will secure
a certificate to file action and file the complaint for ejectment before the MTC of Tagaytay City where the
property is located since ejectment suit is a real action regardless of the value of the property to be
recovered or claim for unpaid rentals (BP 129 and Sec. 1, Rule 4).
In the aforementioned complaint, I will allege that Spouses Juan had prior physical possession and that
the dispossession was due to force, intimidation and stealth. The complaint will likewise show that the action
was commenced within a period of one (1) year from unlawful deprivation of possession, and that Spouses Juan
is entitled to restitution of possession together with damages and costs.
343 Rule 70, Section 12. Referral for conciliation. — Cases requiring referral for conciliation, where there is no
showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only
after that requirement shall have been complied with.
344 Q: Mr. Boaz filed an action for ejectment against Mr. Jachin before the Metropolitan Trial Court (MeTC).
Mr. Jachin actively participated in every stage of the proceedings knowing fully well that the MeTC had no
jurisdiction over the action. In his mind, Mr. Jachin was thinking that if the MeTC rendered judgment
against him, he could always raise the issue on the jurisdiction of the MeTC. After trial, the MeTC
rendered judgment against Mr. Jachin. What is the remedy of Mr. Jachin? (2014)
(A) File an appeal
(B) File an action for nullification of judgment
(C)File a motion for reconsideration
(D)File a petition for certiorari under Rule 65
procedure in order to avoid undue delay, a revocation of a erroneous order of the

court is proper to avoid delay to be occasioned by an appeal from the said
order.345
4. Reply is prohibited. Hence, the court should hold a preliminary conference (not
a pre-trial) not later than 30 days after the defendant’s Answer.346
5. The list of prohibited pleadings include petition for certiorari against any
interlocutory order issued by the court: note that the bar answer here only says
petition for certiorari.347
A: (A) file an appeal. An appeal from a judgment or final order of a Municipal Trial Court may be
taken to the Regional Trial Court (Section 1, Rule 40, Rules of Court). Moreover, under Rule 41, of the Rules
of Court, decisions of the Metropolitan Trial Court in the exercise of its original jurisdiction can be
appealed to the Regional Trial Court. Besides, a Motion for Reconsideration is prohibited under the Rules
on Summary Procedure
345 Q: Dalmacio filed a civil case against Cadio for the collection of P5,000 in the Municipal Trial Court of
Bacoor, After an examination of the complaint, the judge dismissed the case outright due to improper
venue. Dalmacio filed a “motion for reconsideration” of the order of dismissal, contending that a provision in
the promissory note attached to the complain and made as the basis thereof clearly shows that the case must be
filed with the Bacoor court. Although realizing and admitting that he committed an error in dismissing the case,
the judge said that he could not revoke his previous order because no action can be taken on the motion for
reconsideration, which is a prohibited pleading under the Summary Rules. Is the judge correct? Explain. (1989
Bar Question) Answer:
No, because while a motion for reconsideration is not allowed under summary procedure rules in
order to avoid undue delay, a revocation of the erroneous order would avoid the delay occasioned by an
appeal by Dalmacio from the order of dismissal and a reversal of the said order by the Regional Trial Court. (Cf.
Heirs of Ricardo Olivas vs. Flory 161 SCRA 393)
Other acceptable Answer: No, because the judge may correct his error under the inherent powers of the
court to make the order conform to law and justice.
346 Bar 2007: Aries filed an unlawful detainer case against Patrick before the appropriate MTC. In his answer,
Patrick avers as a special and affirmative defense that he is a tenant of Aries’ deceased father in whose name
the property remains registered. What should the court do?
A: The court should hold a preliminary conference not later than 30 days after the defendant’s
answer was filed, since the case is governed by summary procedure under Rule 70 of the Rules of Court,
where a reply is not allowed. The court should receive evidence to determine the allegations of tenancy.
*****If tenancy had in fact been shown to be the real issue, the court should dismiss the case for lack of
jurisdiction. If it would appear that Patrick’s occupancy of the subject property was one of agricultural
tenancy, which is governed by agrarian laws, the court should dismiss the case because it has no jurisdiction
over agricultural tenancy cases. Patrick’s allegation that he is a “tenant” of plaintiff’s deceased father suggests
that the case is one of landlord-tenant relation and therefore, not within the jurisdiction of ordinary courts.
347 Q: Charged with the offense of slight physical injuries under an information duly filed with the MeTC
in Manila which in the meantime had duly issued an order declaring that the case shall be governed by the
Revised Rule on Summary Procedure, the accused filed with said court a motion to quash on the sole
ground that the officer who filed the information had no authority to do so. The MeTC denied the
motion on the ground that it is a prohibited motion under the said Rule. The accused thereupon filed with
the RTC in Manila a petition for certiorari in sum assailing and seeking the nullification of the MeTC’s denial of his
motion to quash. The RTC in due time issued an order denying due course to the certiorari petition on the ground
that it is not allowed by the said Rule. The accused forthwith filed with said RTC a motion for reconsideration
of its said order. The RTC in time denied said motion for reconsideration on the ground that the same is
also a prohibited motion under the said Rule. Were the RTC’s orders denying due course to the petition as
well as denying the motion for reconsideration correct? Reason. (5%)(2004 Bar Question) SUGGESTED
ANSWER:
The RTC’s orders denying due course to the petition for certiorari as well as denying the motion for
reconsideration are both not correct. The petition for certiorari is a prohibited pleading under Section 19(g)
of the Revised Rule on Summary Procedure and the motion for reconsideration, while it is not a prohibited
———————————————————
7.2. Effect of failure to answer348

1. The court, motu proprio or on motion of the plaintiff, shall render judgment as
may be warranted by the facts alleged in the complaint **and limited to what
is prayed for (Sec. 6, Ibid.).
2. This is without prejudice to the applicability of Sec. 4, Rule 18 (PT) of the
Rules of Court, stating that the non-appearance of the party in a pre-trial may
be excused if valid cause is shown or a representative authorized in writing
appears in his behalf (Ibid.)
7.3. Preliminary conference and appearances of parties

1. Nature of preliminary conference in civil cases—Preliminary conference in civil
cases is MANDATORY. A preliminary conference shall be held not later than
30 days after the last answer is filed. The **rules on pre-trial in ordinary
cases shall be applicable to the preliminary conference unless inconsistent with
the provisions of this Rule (Sec. 7, Ibid.).
2. Nature of preliminary conference in criminal cases—In criminal cases,
preliminary conference is MANDATORY. Before conducting the trial, the court shall
call the parties to a preliminary conference during which a STIPULATION OF
FACTS may be entered into, or the propriety of allowing the accused to enter a
PLEA of guilty to a lesser offense may be considered, or such other matters
may be taken up to clarify the issues and to ensure a speedy disposition of
the case.
However, no admission by the accused shall be used against him unless
reduced in writing and signed by the accused and his counsel. A **refusal or failure to
stipulate shall not prejudice the accused (Sec. 14, Ibid.).
3. Is trial necessary? Only in criminal cases:
a. ******Trial is necessary only in criminal cases covered by the Rules on
motion (Lucas v. Fabros, AM No. MTJ -99-1226, January 31, 2000, citing Joven v. Court of Appeals, 212 SCRA
700, 707-708 (1992), should be denied because the petition for certiorari is a prohibited pleading. [TOM:
what it may be trying to say that the MR in the RTC is not a prohibited motion, but since the MR is about a
prohibited pleading (petition for certiorari), then the MR should also be prohibited—what you cannot do
directly, you cannot do indirectly].
348 Q: Distinguish between the effects of the failure to file an answer in a civil case governed by the Summary
Rules and in a civil case governed by the regular provisions of the Rules of Court. (1989 Bar Question)
Answer: Under Summary Procedure Rules, upon the failure to file an answer in a civil case, the court,
motu propio or upon motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein except as to the amount of damages which the court
may reduce in its discretion. (Sec. 5)
Under the regular procedure, upon the failure to file an answer, the court shall, upon motion [no motu
propio] of the plaintiff and proof of such failure, declare the defendant in default. [TOM: Motion to declare
defendant in default is prohibited under Summary Procedure]. Thereupon, the court shall proceed to receive
the plaintiff’s evidence and render judgment granting him such relief as the complaint and the facts
proven may warrant. Such judgment shall not exceed the amount or be different in kind from that prayed
for. (Secs. 1 and 5 of Rule 18).
Summary Procedure.349
b. In civil cases covered by the Rule, there is no trial involved but only the
submission of the affidavits350 of witnesses of the parties and other evidence
on the factual issues defined in the order, together with their POSITION
PAPERS setting forth the law and the facts relied upon by them which shall be submitted
within 10 days from receipt of the order issued by the court after the preliminary
conference (Sec. 9, Ibid.).
4. Duty of the court after conducting the preliminary conference—Within 5
days after the termination of the preliminary conference, the court shall issue
an order stating the matters taken up therein, including but not limited to:
a. Whether the parties have arrived at an amicable settlement, and if so,
the terms thereof;
b. The stipulations or admissions entered into by the parties;
c. Whether, on the basis of the pleadings and the stipulations and
admissions made by the parties, judgment may be rendered without the need
349 Q: An information for slight physical injuries was filed against Diego in the Municipal Trial Court of Cainta,
after which the judge directed him to appear and submit counter-affidavits and those of his witnesses on
September 12, 1989. Diego failed to appear on the said date. Thereafter, the judge rendered judgment
convicting Diego of the offense charged based on the affidavits submitted by the complainant. Diego
contends that this judgment is a nullity. Decide. (1989 Bar Question) Answer:
Diego’s contention is correct. Under Summary Procedure rules, the failure of Diego to appear and
submit counter-affidavits on the date specified may be a ground for the judge to issue a warrant for his
arrest upon a finding of probable cause. However, the judge may not render a judgment of conviction of
the offense charged based on the affidavits submitted by the complainant. He should set the case for
arraignment and trial if Diego pleads not guilty. Only after trial may the judge render a judgment of
conviction. (Secs. 10 and 11)
[] In a criminal case for violation of a city ordinance, the court may issue a warrant of arrest: (2012 BAR)
a. forfailureoftheaccusedtosubmithiscounter-affidavit.
b. afterfindingprobablecauseagainsttheaccused.
c. for failure of the accused to post bail.
d. for non-appearance in court whenever required.
350 Q: Defendant was declared in default by the Regional Trial Court (RTC). Plaintiff was allowed to present
evidence in support of his complaint. Photocopies of official receipts and original copies of affidavits were
presented in court, identified by plaintiff on the witness stand and marked as exhibits. Said documents were
offered by plaintiff and admitted in evidence by the court on the basis of which the RTC rendered judgment in
favor of the plaintiff, pursuant to the relief prayed for. Upon receipt of the judgment, defendant appeals to
the Court of Appeals claiming that the judgment is not valid because the RTC based its judgment on
mere photocopies and affidavits of persons not presented in court.
A. Is the claim of defendant valid? Explain. (3%) The claim of defendant is not valid because under the
1997 Rules, reception of evidence is not required. After a defendant is declared in default, the court shall
proceed to render Judgment granting the claimant such relief as his pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence, which may be delegated to the clerk of court. (Sec. 3, Rule 9,
1997 Rules of Civil Procedure) ALTERNATIVE ANSWER: The claim of defendant is valid, because the court
received evidence which it can order in its own discretion, in which case the evidence of the plaintiff must pass
the basic requirements of admissibility.
B. Will your answer be the same if the photocopies of official receipts and photocopies of
affidavits were attached to the position paper submitted by plaintiff in an action for unlawful detainer
filed with the Municipal Trial Court on which basis the court rendered Judgment in favor of plaintiff?
Explain. (2%) (2000 Bar Question) The claim of defendant is valid, because *****although summary
procedure requires merely the submission of position papers, the evidence submitted with the position
paper must be admissible in evidence. (Sec. 9 of the Revised Rule on Summary Procedure). Photocopies of
official receipts and affidavits are not admissible without proof of loss of the originals. (Sec. 3 of Rule 130)
of further proceedings, in which event the judgment shall be rendered within

thirty (30) days from issuance of the order;
c. A clear specification of material facts which remain controverted; and
d. Such other matters intended to expedite the disposition of the case
(Sec. 8, Ibid.).
5. **Plaintiff’s failure to appear in the preliminary conference: shall be a cause
for the DISMISSAL of his complaint. The defendant who appears in the
absence of the plaintiff shall be entitled to judgment on his counterclaim as
may be warranted and limited to what is prayed for therein. **All cross claims
shall be dismissed (Sec. 7, Ibid.).
6. **Defendant’s failure to appear during the preliminary conference
a. If a sole defendant shall fail to appear, the plaintiff shall be entitled to
judgment in accordance with Sec. 6.
b.This Rule shall not apply where one of two or more defendants sued
under a common cause of action who had pleaded a common defense shall
appear at the preliminary conference (Sec. 7, Ibid.).
————————————————————————————————
VIII. Rule of Procedure for Small Claims Cases

(A.M. No. 08-8-7-SC)
On Small Claims 298

SCOPE AND APPLICABILITY OF THE RULE 298
COMMENCEMENT OF SMALL CLAIMS ACTION 298
PROHIBITED PLEADINGS AND MOTIONS 299
APPEARANCES 301
HEARING; DUTY OF THE JUDGE 301
FINALITY OF JUDGMENT 302
———————————————————————————————
On Small Claims351
1. Rule: A.M. 08-8-7-SC;
2. It is a special rule of procedure adopted by the SC pursuant to its rule-making
power to govern small claims. This rule **allows a plaintiff to sue a defendant
WITHOUT THE NEED OF A LAWYER.
3. The Rule on small claim cases **did not create new courts. It simply
provides a procedure for prosecuting, defending, and adjudicating small claims cases,
which by law are already within the jurisdiction of first level courts.
SCOPE AND APPLICABILITY OF THE RULE

1. Scope of the Rules for Small Claim Cases—The Rule governs the procedure in
actions for money claims before the MeTCs, MTCCs, MTCs and MCTCs
where the value of the claim does not exceed Php 200,000.00 (beginning
February 1, 2016),352 exclusive of interest and costs.
******NB: The amount for small claims is JURISDICTIONAL.
2. Cases covered by the Rule on Small Claims
351 A Small Claims Court __________. (2013 BAR)

(A) has jurisdiction over ejectment actions
(B) has limited jurisdiction over ejectment actions
(C) does not have any jurisdiction over ejectment actions
(D) does not have original, but has concurrent, jurisdiction over ejectment actions (E) has only residual
jurisdiction over ejectment actions
352 The Rule on Small Claims is applicable to: (2012 BAR)
a. claimsforunpaidrentalsofP100,000orless,withprayerforejectment.
b. enforcement of a barangay amicable settlement involving a money claim of P 50,000 after one (1) year
from date of settlement.
c. action for damages arising from a quasi-delict amounting to P100,000 [now 200K]
d. action to collect on a promissory note amounting to P 105,000 where plaintiff expressly insists in
recovering only P100,000.
a. Those which are PURELY CIVIL353 in nature where the claim or relief
prayed for by the plaintiff is solely for payment or reimbursement of sum of
money;
b. The **CIVIL ASPECT of CRIMINAL actions either filed before the
institution of the criminal action or reserved upon the filing of a criminal
action in court, pursuant to Rule 111 of the Revised Rules of Criminal Procedure
(Sec. 4); and
c. The ENFORCEMENT of a BARANGAY amicable settlement or an
arbitration award involving money claims covered by the Rule, pursuant to Sec.
417, LGC.
3. Claims or demands (CIVIL CASES COVERED):
a. For money owed (not exceeding Php200,000) under any of following:
i. Contract of lease;
ii. Contract of loan;
iii. Contract of services;
iv. Contract of sale; or
v. Contract of mortgage.
b. For damages (not exceeding Php200,000) arising from any of the following:
i. Fault or negligence;
ii. Quasi-contracts; and
iii. Contracts.
c. **The enforcement of a barangay amicable settlement or an
arbitration award involving a money claim covered by this rule pursuant to Sec.
417, LGC (Sec. 4, A.M. No. 08-8-7-SC).
COMMENCEMENT OF SMALL CLAIMS ACTION

1. Commencement of small claims action: The plaintiff must first accomplish a
353Q: While leisurely walking along the street near her house in Marikina, Patty unknowingly stepped on a
garden tool left behind by CCC, a construction company based in Makati. She lost her balance as a consequence
and fell into an open manhole. Fortunately, Patty suffered no major injuries except for contusions, bruises and
scratches that did not require any hospitalization. However, she lost self-esteem, suffered embarrassment and
ridicule, and had bouts of anxiety and bad dreams about the accident. She wants vindication for her uncalled for
experience and hires you to act as counsel for her and to do whatever is necessary to recover at least Php100,000
for what she suffered. What action or actions may Patty pursue, against whom, where (court and venue), and
under what legal basis? (2013 BAR) A: Patty may undertake the following remedies:
a) She may file a small claims case against CCC Company for damages arising from fault or
negligence before the MTC where she or the defendant resides, at her option (A.M. No. 8-8-7-SC in relation to
Section 2, Rule 4, Rules of Court).
b) She may also file an independent civil action against the company based on quasi-delict under
Article 2176 of the Civil Code. The law states, whoever by act or omission causes damage to another, there being
fault or negligence is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict.
c) Patty can also file a civil action for damages against the City of Marikina for maintaining an
open manhole where she unfortunately fell. Under Article 2189 of the Civil Code, provinces, cities and
municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason
of defective condition of roads, streets, bridges, public buildings, and other public works under their control
or supervision.
VERIFIED STATEMENT OF CLAIM and CERTIFY the information

provided, stating that he has not filed any action involving the very same issue in
any other court, tribunal or agency through a VERIFICATION AND
CERTIFICATION OF NON-FORUM SHOPPING.
The Statement of Claim must be accompanied by certified duplicate
photocopies of all supporting documents.
The plaintiff then files the Statement of Claim with its accompanying
documents with the office of the clerk of court of the small claims court,
personally or through mail, and pays the correct docket and filing FEES
prescribed under Rule 141 of the Revised Rules of Court
*NB: No evidence shall be allowed during the hearing which was not
attached to the claim unless GOOD CAUSE is shown for the admission of the evidence
(Sec. 5, A.M. No. 08-8-7-SC).
2. When there are separate small claims—*****Plaintiff may JOIN in a single
statement of claim one or more separate small claims against a defendant
provided that the TOTAL AMOUNT claimed, exclusive of interest and costs, does
not exceed Php 200,000 (Sec. 6, A.M. No. 08-8-7-SC).
3. Indigent party—If one is an indigent, he may apply to the small claims court to
qualify as an indigent, and once qualified, he is EXEMPT from payment of such
FEES (Sec. 8, A.M. No. 08-8-7-SC). *****NB: In no case shall a party, even if
declared an indigent, be exempt from the payment of Php 1,000.00 fee for
service of summons and processes in civil cases (Ibid.).
PLEADINGS ALLOWED IN SMALL CLAIMS CASES

1. Statement of Claim (Form 1-SSC); NB: It must be accompanied by a
certification of non-forum shopping and two photocopies of the actionable
document/s subject of the claim as well as affidavits of witnesses and other
evidence to support the claim. **No evidence shall be allowed during the
hearing which was not attached to the claim unless GOOD CAUSE is shown
for the admission of the evidence (Sec. 5, Rules on Small Claims)
2. Filing of a Response—The defendant shall file with the court and serve on
the plaintiff a duly accomplished and VERIFIED RESPONSE within a non-
extendible period of 10 days from receipt of summons.
a. The response shall be accompanied by certified photocopies of
documents, as well as affidavits of witnesses and other evidence in support
thereof. No evidence shall be allowed during the hearing which was not
attached to or submitted together with the Response, unless GOOD CAUSE is
shown for the admission of additional evidence (Sec. 11, A.M. No. 08-8-7-SC).
b. Failure to file a response within the required period—The court BY
ITSELF shall render judgment as may be warranted by the facts alleged in the
Statement of Claims LIMITED TO WHAT IS PRAYED FOR. The court however,
may, in its discretion reduce the amount of damages for being EXCESSIVE OR
UNCONSCIONABLE (Sec. 12, A.M. No. 08-8-7-SC).
3. Counterclaim--If at the time the action is commenced, the defendant in his

response may file as counterclaim a claim against the plaintiff that:
a. Compulsory counterclaim
i. Is within the coverage of the Rule (amount not exceeding
Php200,000), exclusive of interest and costs;
ii. Arises out of the same transaction or event that is the subject
matter of the plaintiff’s claim;
iii. Does not require for its adjudication the joinder of third parties;
and
iv. Is not a subject of another pending action (Sec. 13, A.M. No. 08-
8-7-SC).
b. Permissive counterclaim:354 Counterclaim against the plaintiff that does
not arise out of the same transaction or occurrence, ******provided that the
amount and nature thereof are within the coverage of the Rule and the
prescribed docket and other legal fees are paid (Sec. 13, A.M. No. 08-8-7-SC).
NB: **The defendant may also elect to file a counterclaim against the plaintiff
that does not arise out of the same transaction or occurrence, provided that the
amount and nature thereof are within the coverage of this Rule and the
prescribed docket and other legal fees are paid.
**Failure to include a counterclaim in the response—If the counterclaim
is compulsory, it must be raised in the same case. Otherwise, it will be
BARRED (Ibid.).
PROHIBITED PLEADINGS AND MOTIONS

*cf. supra, under Summary Procedure
APPEARANCES
1. Appearance of parties—The parties shall appear at the hearing personally or
through a representative they may authorize under a Special Power of Attorney to
enter into an amicable settlement, to submit to Judicial Dispute Resolution
(JDR) and to enter into stipulations or admissions of facts and of documentary
exhibits (Sec. 16, A.M. No. 08-8-7-SC).
2. Appearance through a representative—Appearance through a representative
must be for a VALID CAUSE. *****The representative of an individual-party
must NOT BE A LAWYER, and must be RELATED TO OR NEXT-OF-KIN of the
individual-party. Juridical entities shall not be represented by a lawyer in any
354Which of the following precepts forms part of the rules governing small claims? (2011 BAR)
(A) Permissive counterclaim is not allowed.
(B) The court shall render its decision within 3 days after hearing.
(C) Joinder of separate claims is not allowed.
(D) Motion to declare defendant in default is allowed.
[TOM: suggested answer is (A) but it is obviously wrong; it should be (C) as long as the aggregate amount does
not exceed 200K].
capacity (Ibid.).
3. Prohibition against appearance of lawyers—Lawyers are not allowed to
appear at the hearing unless they are the plaintiff or the defendant.
*****However, since the process is still a legal process, the parties and their
authorized representatives can still consult355 with a lawyer to assist them to
prepare for the hearing or for other matters outside the hearing (Sec. 17, A.M.
No. 08-8-7-SC). NB: The court, in its discretion, may allow another individual
who is not a lawyer to assist the party (Ibid.).
4. Non-appearance of a party
a. If the plaintiff does not appear, the claim shall be DISMISSED
WITHOUT PREJUDICE. The defendant who appears shall be entitled to
judgment on a PERMISSIVE counterclaim.
b. If the defendant does not appear, the effect will be the same as failure
to file a Response. This shall not apply where one of two or more defendants
who are sued under a common cause of action and have pleaded a common
defense appears at the hearing.
c. If both parties do not appear, the claim and counterclaim shall be
DISMISSED WITH PREJUDICE (Sec. 18, A.M. No. 08-8-7-SC).
HEARING; DUTY OF THE JUDGE

1. Duty of the court at the beginning of the court session—the judge shall read
aloud a short statement explaining the nature, purpose and the rule of
procedure of small claims cases (Sec. 20, A.M. No. 08-8-7-SC).
2. Duty of the judge at the hearing—The judge shall exert efforts to bring the
parties to an AMICABLE SETTLEMENT of their dispute. Any settlement or
resolution of the dispute shall be REDUCED INTO WRITING, SIGNED by the
parties and SUBMITTED to the court for approval.
NB: There is no trial under the Rules on Small Claim Cases. Under Sec. 22,
if efforts at settlement fail, the hearing shall proceed in an informal and
expeditious manner and be **TERMINATED WITHIN 1 DAY. Either party
may move in writing to have another judge hear and decide the case. The
355Q: As a new lawyer, Attorney Novato limited his practice to small claims cases, legal counseling and the
notarization of documents. He put up a solo practice law office and was assisted by his wife who served as his
secretary/helper. He used a makeshift hut in a vacant lot near the local courts and a local transport regulatory
agency. With this practice and location, he did not have big-time clients but enjoyed heavy patronage assisting
walk-in clients.
a) What role can Attorney Novato play in small claims cases when lawyers are not allowed to appear as
counsel in these cases? (2013 BAR) A: Atty. Novato may only give counseling and assist claimants in
accomplishing the Statement of Claims and the Affidavits necessary to initiate a small claims action. He can
also notarize the aforementioned documents since the statement of Claims and Response are required to be
verified (Sec. 7, Rules of Procedure for Small Claims, A.M. No. 8-8-7 SC).
b) What legal remedy, if any, may Attorney Novato pursue for a client who loses in a small claims case
and before which tribunal or court may this be pursued? (2013 BAR) A: Atty. Novato may file a Petition for
Certiorari before the RTC since a decision in small claims cases is final and unappealable (Sec. 23, A.M. No.
8-8-7 SC). The petition for certiorari should be filed before the RTC conformably to the Principle of Judicial
Hierarchy.
reassignment of the case shall be done in accordance with existing issuances.

The referral by the original judge to the Executive Judge shall be made
WITHIN THE SAME DAY the motion is filed and granted, and by the
Executive Judge to the designated judge WITHIN THE SAME DAY of the
referral. The new judge shall hear and decide the case within 5 working days from
receipt of the order of reassignment.
3. Postponement of a hearing—It may be granted only upon PROOF of the
PHYSICAL INABILITY of the party to appear before the court on the
scheduled date and time. A party may avail of **ONLY 1 POSTPONEMENT
(Sec. 19, A.M. No. 08-8-7-SC).
FINALITY OF JUDGMENT
1. A decision in small claims cases is final and unappealable (Sec. 23, A.M. No.
08-8-7-SC). The declaration that the decision is final and unappealable is in line
with the NATURE of small claims which is designed to preclude
unmeritorious appeals that result in long drawn litigation for cases of this
nature, pursuant to the SC’s constitutional mandate to enact rules of procedure.
2. Remedy of a party—The rule does not preclude a party from filing a petition
for certiorari under Rule 65 when there is grave abuse of discretion amounting
to lack or excess of jurisdiction in relation to a judgment in a small claims action
(**such a petition is prohibited with regard to interlocutory orders).
**Further, the aggrieved party can also file an action for ANNULMENT
of judgment when the requirements under the Rules of Civil Procedure are
complied with.
————————————————————————————————
IX. Katarungang Pambarangay Law

(P.D. No. 1508; R.A. 7610, as amended)356
The Katarungang Pambarangay Law 304

8.1. Cases covered/Not Covered 304
8.2. Subject matter for amicable settlement 304
8.3. Venue 308
8.4. When parties may directly go to court 310
8.5. Execution 310
8.6. Repudiation 312
————————————————————————————————
The Katarungang Pambarangay Law

1. It provides for the settlement of disputes between individual residents of
the same city or municipality, thru mediation, arbitration, or conciliation,
before the Katarungang Pambarangay. Compliance therewith is a condition
precedent to the filing of a complaint or information in court or before the Fiscal’s
Office, and its absence is a ground for dismissal of the complaint for
prematurity or absence of a cause of action (Albano, 2010).
2. Q: What is the object of the Katarungang Pambarangay Law? (1999 Bar) A: Its
object is to effect an amicable settlement357 of disputes among family and
barangay members at the barangay level without judicial recourse and
consequently help relieve the courts of docket congestion (Preamble of P.D.
1508, the former and the first Katarungang Pambarangay Law).
8.1. Cases covered/Not Covered

1. Cases involving the following should first be filed before the Katarungang
Pambarangay before resorting to courts or government offices:
a. Disputes between persons actually358 residing in the same
356Ref: Katarungang Pambarangay: A Handbook.

357: (1999 Bar Question) xxx What is the difference, if any, between the conciliation proceedings under the
Katarungang Pambarangay Law and the negotiations for an amicable settlement during the pre-trial
conference under the Rules of Court? (2%) SUGGESTED ANSWER: xxx
The difference between the conciliation proceedings under the Katarungang Pambarangay Law and the
negotiations for an amicable settlement during the pre-trial conference under the Rules of Court is that in the
former, lawyers are prohibited from appearing for the parties. Parties must appear in person only except
minors or incompetents who may be assisted by their next of kin who are not lawyers. (Formerly Sec. 9,
P.D. No. 1508; Sec. 415, Local Government Code of 1991, R.A. 7160.) No such prohibition exists in the pre-
trial negotiations under the Rules of Court.
358
Q: Riza and Francia entered into a contract of lease. When Francia failed to pay the rent, Riza
instituted a complaint for unlawful detainer against Francia. Francia moved to dismiss because Riza
barangay;359
b. Those involving actual residents of different barangays within the
same city or municipality;
c. All disputes involving real property or any interest therein 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, where
such workplace or institution is located.
2. NB: The compulsory process of arbitration is a pre-condition for the filing
of the complaint in court. Hence, the case should be dismissed if the complaint:360
a. did not state that it is one of excepted cases, or

b. it did not allege prior availment of said conciliation process, or
c. did not have a certification that no conciliation had been reached by
the parties, the case should be dismissed
3. Hence, failure to avail of the Katarungang Pambarangay proceedings in these
cases will render the filing at the courts premature.361 But the parties can be
failed to refer the issue first to the Lupon and undergo conciliation proceedings before filing a
case in court. Riza insisted that P.D. 1508 is inapplicable because at the time of the institution of the
action, the plaintiffs are temporarily residing in the place where the action was instituted and they are
permanent residents of another province. Does P.D. 1508 apply in this case?
A: No. P.D. 1508 is not applicable. The primary purpose of P.D. 1508 is to provide conciliation
mechanism, as an alternative to litigations in dispute settlement, to members of the corresponding
barangays who are actually residing therein. Residence alone, without membership in said
barangays would not be an accurate and reliable criterion, considering that such residence may be
actual but be merely temporary, transient or categorized into other permutations as in the case of a
house guest or a sojourner on a visit of a day or two. On the other hand, mere membership in a
barangay, without actual residence therein, should not suffice since absentee membership would
not subserve the avowed purpose of P.D. 1508 for lack of the common bond and sense of belonging
generally fostered in members of an identified aggroupment (Bejer v. CA, G.R. No. 79404, Jan. 27,
1989). NB: Even when the parties reside in different cities, barangay conciliation may still be done
if the barangays wherein the parties reside are adjacent to one another (Albano, 2010).
359
Q: Mariano, through his attorney-in-fact, Marcos, filed with the RTC of Baguio City a complaint
for annulment of sale against Henry. Marcos and Henry both reside in Asin Road, Baguio City,
while Mariano resides in Davao City. Henry filed a motion to dismiss the complaint on the ground
of prematurity for failure to comply with the mandatory barangay conciliation. Resolve the motion
with reasons. (3%) (2009 Bar Question) SUGGESTED ANSWER:
The motion to dismiss should be denied because the parties in interest, Mariano and Henry,
do not reside in the same city/municipality. The required conciliation/mediation before the proper
Barangay as mandated by the Local Government Code governs only when the parties to the dispute
reside in the same city or municipality, and if involving real property, as in this case, the property must
be situated also in the same city or municipality.
360 (Agbayani v. Court of Appeals, G.R. No. 183623, June 25, 2012).
361
Q: X and Y, both residents of Bgy. II, Sampaloc, Manila entered into a P100,000 loan
agreement. Because Y defaulted, X sued Y for collection and the complainant prayed for issuance of
preliminary attachment. Y moved to dismiss the complaint because there was no Barangay
conciliation. The court should therefore: (2012 BAR)
estopped from questioning the same, if it’s raised for the first time on appeal.362
4. Cases NOT covered:
a. when one of the parties is a juridical person;363
a. dismiss X's complaint for prematurity.

b. dismiss X's complaint for lack of cause of action.
c. deny Y's motion because it is exempt from Barangay conciliation.
d. deny Y's motion because of the amount of the loan.
362
Q: Luis is the owner of a five-door apartment unit three doors of which he has leased to Fe, Gary ,
and Marilou for a monthly rental of P250.00 per door. Fe, Gary, and Marilou have been his tenants
for close to thirty years at that rate. He occupies the fourth door as his own residence. The fifth door is
vacant. Alleging that he needs to repossess all three doors for the use of his son, Fern, who had
recently gotten married, and who does not allegedly have a residence of his own, he sued, after the
requisite letters to vacate, Fe, Gary, and Marilou before the Metropolitan Trial Court for
unlawful detainer. Fe, Gary, and Marilou answered the complaint and set up the defense that
ejectment was not proper because the fifth door was available for Fern’s residence. At the trial,
they likewise endeavored to prove that Fern has in fact a residence of his own and that the suit was
Luis’ mere strategy to force them to agree to a rental hike of P1,500.00 a door, in violation of the
rental laws. The trial judge, however, decreed ejectment. On appeal to the Regional Trial Court,
Fe, Gary, and Marilou alleged that the decision was null and void, for lack of jurisdiction, there having
been no prior confrontation among the parties before the lupong tagapayapa pursuant to Presidential
Decree No. 1508. Luis countered that the jurisdictional question not having been raised below,
it cannot be raised for the first time on appeal.
A. Can Fe, Gary, and Marilou validly challenge the jurisdiction of the Metropolitan Trial Court?
Explain. A: No, because lack of prior confrontation among the parties before the Lupong
Tagapayapa pursuant to Presidential Decree No. 1508 does not affect the jurisdiction of the
Metropolitan Trial Court over the action for unlawful detainer. (It is presumed that the complaint was
filed within one year from the demand to vacate.) (Rayales vs. I AC, 127 SCRA 470) Moreover, by
answering the complaint and setting up their defense without objecting to the jurisdiction of
the court, they are estopped from raising the question of jurisdiction. (Tijam vs. Sabonghanoy, 23
SCRA 29)
B. What is the effect of Luis failure to resort to the conciliation process before the lupong
tagapayapa provided for in P.D. No. 1508? Explain. (1988 Bar Question) A: Luis failure to resort to the
conciliation process affects the sufficiency of his cause of action and makes his complaint subject to
dismissal on the ground of lack of cause of action or prematurity. (Rayales vs. IAC, supra)[TOM:
The answer in B contradicts the answer in A. The way to solve it is to stick to the reasoning in A.]
363Q: For failure of the tenant, X, to pay rentals, A, the court-appointed administrator of the estate of Henry
Datu, decides to file an action against the former for the recovery of possession of the leased premises located
In Davao City and for the payment of the accrued rentals In the total amount of P25,000.00. (1991 Bar
Question)
a) Is prior referral to the Lupon under P.D. No. 1508 necessary? Answer: No, because the law applies
only to disputes between natural person, and *****does not apply to juridical person such as the estate of a
deceased. [Vda. de Borromeo v. Pogoy, 126 SCRA 217)
b) What is the court of proper jurisdiction and venue of the intended action? Answer: The Court of
proper jurisdiction and venue is the Municipal Trial Court of Davao City, since this is an action of illegal detainer
and the leased premises are located in Dayao City.
c) Supposing that referral is necessary, but the complaint is filed without such referral, may it be
dismissed on the ground of lack of jurisdiction? Answer: *****No, because lack of referral would merely
render the action premature for failure to comply with a condition precedent.
d) If the case is filed with the Municipal Trial Court, in Cities (MTCC), is it covered by the Rule on
Summary Procedure? Answer: No, it is not covered by the Rule on Summary Procedure in any of the lower
courts, because the unpaid rentals exceed P20.000.00 (Sec. 1-A-l of Rule on Summary Procedure) [TOM: the
rules provide that the 20K limit refers to attorney’s fees; the amount of rental does not matter]
b. when one of the parties is a public official;

c. when parties do not reside in the same city/municipality.
5. Mediation vs. Conciliation vs. Arbitration
MEDIATION CONCILIATION ARBITRATION
a process wherein the a process wherein the a process wherein the third
Lupon chairperson or Pangkat forgoes the power party from outside the
Barangay Chairperson to decide or recommend judicial system is chosen by
but assist the parties to parties to hear and decide
assists the disputing parties
isolate issues and options to their dispute.
to reach a settlement by reach a settlement by
consensus that jointly consensus that jointly
satisfies their needs. satisfies their needs
Pre-condition to Filing of Complaint in Court Not a Pre-condition

First level in resolving Second level in resolving May be availed of at any stage
conflicts under the KPL conflicts under the KPL or during any of the two levels
6. Complaint in the Barangay or KP Form # 7 vs. Complaint in the court: the latter
must state all the elements that make up a cause of action. Hence, reckon on
the following points:
a. Jurisdiction,
b. Venue;
c. Parties to be impleaded;
d. Cause of action;
e. Relief prayed for;
f. Signature by the counsel or party;
g. Verification, if required;
h. Certification of non-forum shopping (because it is an initiatory pleading).
7. Parties to the proceeding: Only individuals may be parties to the proceedings
under the Katarungang Pambarangay Law either as complainants or
respondents. Further, no complaint by or against corporations,364
partnerships or other juridical entities may be filed, received or acted upon.
e) Supposing that A filed the complaint in the MTCC, and X filed an Answer wherein he interposed a
counterclaim for moral damages in the amount of P50.000 alleging that the complaint is unfounded and
malicious, would the MTCC have jurisdiction over the counterclaim? If X did not set up the counterclaim, can
he file a separate action to recover the damages? Can A file a counterclaim to the counterclaim? Answer:
No, because the counterclaim exceeds the jurisdictional amount of P20.000.00 [now it’s 200K in Metro Manila
and 100K outside MM] Since the claim for damages is not within the jurisdiction of the MTCC, it is not a
compulsory counterclaim and X can file a separate action in the RTC to recover the damages. [Reyes v.
CA, 38 SCRA 130) Another Answer: The MTCC would have jurisdiction over the counterclaim if the excess
of the amount thereof over P20.000.00 [now it’s 200K in Metro Manila and 100K outside MM] is waived
by X. (Agustin v. Bocalan, 135 SCRA 340)
364 Here, being a corporation, defendant cannot be impleaded as a party to a barangay conciliation
proceeding (Universal Robina Sugar Milling Corporation v. Heirs of Angel Teves, G.R. No. 128574, September
18, 2002; Sec. 1, Rule VI, IRR of the Katarungang Pambarangay Law).
8. *****Prohibition against appearance of lawyers as counsel or representative:

In all Katarungang Pambarangay proceedings, the parties must appear in person
without the assistance of counsel or representatives, except for minors and
incompetents who may be assisted by their next-of-kin who are not lawyers
(Sec. 415, RA 7160).365
9. Issuance of summons: The pangkat shall convene not later than 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 (Sec. 410, RA 7160).
10. Proceedings for settlement
a. GR: All proceedings for settlement shall be public and informal.
b. XPN: 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 (Sec. 414, RA
7160).
11. Tolling of the prescriptive period for 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 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 60 days366 from the
filing of the complaint with the punong barangay (Sec. 410, RA 7160).
8.2. Subject matter for amicable settlement

1. All disputes are subject to Barangay conciliation pursuant to the Revised
Katarungang Pambarangay Law and prior recourse thereto is a pre-condition
before filing a complaint in court or any government offices EXCEPT in the
following disputes (See Administrative Circular No. 14-93, July 15, 1993; Sec. 408,
Local Government Code):
a. Where one party is the government, or any sub-division or
instrumentality thereof;
b. Where one party is a public officer or employee and the dispute relates
365 *****Q: What is the difference, if any, between the conciliation proceedings under the Katarungang
Pambarangay Law and the negotiations for an amicable settlement during the pre-trial conference under the
Rules of Court? (1999 Bar) A: Under the conciliation proceedings in the Katarungang Pambarangay Law,
lawyers are prohibited from appearing for the parties. The parties must appear in person only except minors or
incompetents who may be assisted by their next of kin who are not lawyers.
366 The filing of a complaint with the Punong Barangay involving cases covered by the Katarungang
Pambarangay Rules shall: (2012 BAR)

a. notinterruptanyprescriptiveperiod.
b. interrupt the prescriptive period for 90 days.
c. interrupt the prescriptive period for 60 days.
d. interrupt the prescriptive period not exceeding 60 days.
to the performance of his official functions;

c. Where the dispute involves real properties located in different cities
and municipalities, unless the parties thereto agree to submit their difference
to amicable settlement by an appropriate Lupon;
d. Any complaint by or against corporations, partnerships or juridical
entities, since only individuals shall be parties to Barangay conciliation proceedings
either as complainants or respondents (Sec. 1, Rule VI, Katarungang Pambarangay
Rules);
e. 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;
f. Offenses for which the law prescribes a maximum penalty of
imprisonment exceeding one (1) year or a fine of over five thousand pesos
(P5,000.00);
g. Offenses where there is no private offended party;
h. Disputes where urgent legal action is necessary to prevent injustice
from being committed or further continued, specifically the following:
i. Criminal cases where accused is under police custody or
detention (See Sec. 412 [b][l], Revised Katarungang Pambarangay Law);
ii. Petitions for habeas corpus by a person illegally deprived of his
rightful custody over another or a person illegally deprived of or on acting in his
behalf;
iii. Actions coupled with provisional remedies such as preliminary
injunction, attachment, delivery of personal property and support during the
pendency of the action; and
iv. Actions which may be barred by the Statute of Limitations.
[] These are explained in detail, infra.
i. Any class of disputes which the President may determine in the interest
of justice or upon the recommendation of the Secretary of Justice;
j. Where the dispute arises from the Comprehensive Agrarian Reform
Law (CARL) (Secs. 46 and 47, R. A. 6657);
k. Labor disputes or controversies arising from employer-employee
relations (Montoya v. Escayo, et al., 171 SCRA 442; Art. 226, Labor Code, as
amended, grants original and exclusive jurisdiction over conciliation and
mediation of disputes, grievances or problems to certain offices of the
Department of Labor and Employment);
l. Actions to annul judgment upon a compromise which may be filed
directly in court (See Sanchez v. Tu- paz, 158 SCRA 459); and
m. Any class of disputes which the President may determine in the
interest of justice or upon the recommendation of the Secretary of Justice.
2. Referral to the Lupon by the court: ******The court in which a non-criminal
case is filed may motu proprio refer the case, at any time before trial, to the
Lupon concerned for amicable settlement, the foregoing rules not-withstanding

and even if the case does not fall within the authority of the Lupon (Sec. 1, Rule
VI, Katarungang Pambarangay Rules, Sec. 408, R.A. 7160).
8.3. Venue
1. Section 409 of the LGC provides:
a. For disputes between residents of the same barangay, the dispute must be
brought for settlement in the said barangay;
b. For disputes between residents of different barangays, within the same
city or municipality or where any of the respondents reside at the election of
the complainant;
c. For disputes involving real property or any interest therein, the dispute
shall be brought in the barangay where the real property or larger portion
thereof is situated; and
d. For disputes arising at the workplace where the contending parties are
employed or at the institution where such parties are enrolled for study, they shall be
brought in the barangay where such workplace or institution is located.
2. Objections to venue: ******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 (ibid.).
8.4. When parties may directly go to court

1. Instances when parties are allowed to dispense with conciliation before the
barangay, even if the same is cognizable. Why? Because in all these instances,
TIME IS OF THE ESSENCE in the disposition of the case.367
a. In a criminal case where the offender is under detention;
b. Where a person who has been deprived of personal liberty calls for a
writ of habeas corpus;
c. When the cause of action involved is about to prescribe;
d. When the complaint in the civil case is coupled with a prayer for
provisional remedy.
367
Disputes where urgent legal action is necessary to prevent injustice from being committed or
further continued, specifically the following:
i. Criminal cases where accused is under police custody or detention (See Sec. 412 [b][l],
Revised Katarungang Pambarangay Law);
ii. Petitions for habeas corpus by a person illegally deprived of his rightful custody over
another or a person illegally deprived of or on acting in his behalf;
iii. Actions coupled with provisional remedies such as preliminary injunction, attachment,
delivery of personal property and support during the pendency of the action; and
iv. Actions which may be barred by the Statute of Limitations.
2. Note that the law provides that although the matter is NOT within the
competence of the barangay, but if the court believes that the parties can iron
out an amicable settlement in a CIVIL case, the court can MOTU
PROPIO368 refer the case to the barangay for conciliation or mediation. Here, the
barangay submits to the court on the terms of the settlement/agreement,
and the court renders a decision based on it.
3. If the minor issues in a case, which are cognizable by the KP, are intrinsically
connected with the cases cognizable by the regular courts, there is not need to file
them with the Lupon.369
368Q: Alice, a resident of Valenzuela, Metro Manila, filed with the Metropolitan Trial Court thereat a complaint
for damages against her next-door neighbor Rosa for P100,000.00 with prayer for preliminary attachment.
She alleged that Rosa intrigued against her honor by spreading unsavory rumors about her among their co-
workers at the Phoenix Knitwear factory located at Valenzuela. After pre-trial the court motu proprio
referred the case for amicable settlement between the parties to the Lupon Tagapayapa of Barangay 2. Zone
3, of Valenzuela where the factory is located. Rosa questioned the order contending that the court had no
authority to do so as both parties had already gone through pre-trial where amicable settlement was
foreclosed and the parties were already going to trial.
1. Comment on Rosa’s contention. Explain. Rosa is not correct. The Local Government Code provides
that in non-criminal cases not falling within the authority of the Lupon, the court may at any time before trial
refer the case to the Lupon concerned for amicable settlement. (Sec. 408)
2. Rosa also opposed the referral to the Lupon Tagapayapa of Barangay 2, Zone 3, claiming that the
venue was wrong as the proper Lupon was that of Barangay 1, Zone 5, where she and Alice reside. Is Rosa’s
opposition valid? Explain. No, because the law also provides that the venue of disputes arising at the
workplace of the contending parties shall be brought in the barangay where such workplace is located.
(Sec. 409[d])
3. Suppose that the Lupon of Barangay 2. Zone 3, is successful in forging an amicable settlement
between Alice and Rosa, is the compromise immediately executory? Explain. No, because any compromise
settlement shall be submitted to the court which referred the case for approval. (Sec. 416)
4. How, when and by whom shall the compromise agreement be enforced? Explain. Upon approval
thereof, it shall have the force and effect of a Judgment of the court and shall be enforced in accordance with
Section 6, Rule 39.
369
Q: Spouses Frank and Rona begot a child named James aged 7 years old. Due to irreconcilable
differences, the wife Rona filed a Petition for Dissolution of Conjugal Partnership and Partition
of Conjugal Partnership Properties in the CFI of Makati. Frank filed a motion to dismiss the
petition on jurisdictional grounds, claiming that it should have been filed first in the Lupon
Tagapamayapa as provided in P.D. 1508, because both are residents of the same Municipality of
Makati. The judge denied the motion to dismiss. Hence, Frank filed a petition for certiorari on the
grounds that the judge exceeded its authority in assuming jurisdiction over the case without prior
referral to the Lupon and also in declaring that issues of support pendente lite and delivery of personal
property belonging to the conjugal partnership of the parties are essentially involved in the petition,
hence, the parties could go directly to court without passing through the Lupon, as provided in Section
6 of P.D. 1508. Decide.
A: *****The issues of support pendente lite and delivery of personal properties belonging
to the conjugal partnership, although not 'coupled' in the strict sense of the word with the instant
petition, are essentially involved in the petition because of the minority of the daughter, and
because the resolution or decision of the court on the pending petition would be incomplete
without a clear cut disposition on the partition of the personal and real properties of the conjugal
partnership. Hence, the dispute can proceed directly to the courts even without compliance with
PD 1508 (Blardony v. Coscolluela, G.R. No. 70261, February 28, 1990).
8.5. Execution370
1. Period to arrive at a settlement: The pangkat shall arrive at a settlement or
resolution of the dispute within 15 days from the day it convenes. This period
shall, at the discretion of the pangkat, be extendible for another period which
shall not exceed 15 days, except in clearly meritorious cases (Sec. 410, RA 7160).
2. Compliance with the arbitration award: The parties, may, at any stage of the
arbitration proceedings, agree in writing that they shall abide by the
arbitration award of the lupon chairman or the pangkat chairman. Such
agreement to arbitrate may be repudiated within 5 days from the date thereof
on the grounds stated in Sec. 418. The arbitration award shall be made after
the lapse of the period of repudiation and 10 days thereafter.
3. Enforcement/Execution of the arbitration award or amicable settlement:
******The amicable settlement or arbitration award may be enforced by
execution by the lupon within 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 court371 (Sec. 417, RA 7160). If the award does not
exceed Php 100,000 [now 200K] it may be enforced under the Rules on Small
Claims, otherwise, it will fall under the provisions of the Rules of Court. NB: The
timeline in Sec. 417 should be construed to mean that if the obligation in the
settlement to be enforced is due and demandable on the date of the
settlement, the six-month period should be counted from the date of the
settlement, otherwise, if the obligation to be enforced is due and demandable on
a date other than the date of the settlement, the six-month period should be
counted from the date the obligation becomes due and demandable (Vidal,
et al. v. Escueta, et al., G.R. No. 156228, December 10, 2003).
4. Effect of amicable settlement and arbitration award
a. ******GR: The amicable settlement and arbitration award shall have the
force and effect of a final judgment of a court upon the expiration of 10 days
from the date thereof, unless repudiation of the settlement has been made or a
370 Under the Katarungan Pambarangay rules, the execution of an amicable settlement or arbitration award is
started by filing a motion for execution with the Punong Barangay, who may issue a notice of execution
in the name of the Lupon Tagapamayapa. Execution itself, however, will be done by: (2012 BAR)
a. acourt-appointedsheriff.
b. anyBarangayKagawad.
c. Punong Barangay.
d. anymemberofthePangkatngTagapagsundo.
371
Q: An amicable settlement was signed before a lupon tagapamayapa on January 3, 2001. On July 6,
2001, the prevailing party asked the lupon to execute the amicable settlement because of the non-
compliance by the other party of the terms of the agreement. The lupon concerned refused to
execute the settlement/agreement.
a. Is the lupon correct in refusing to execute the settlement/agreement? A: Yes. *****The
execution sought is already beyond the period of 6 months from the date of settlement within
which the lupon is authorized to execute.
b. What should be the course of action of the prevailing party in such a case? (2001 Bar
Question) A: After the 6-month period, the prevailing party should move to execute the
settlement/agreement in the appropriate city or municipal court.
petition to nullify the award has been filed before the proper city or municipal
court. NB: *****Rule on RES JUDICATA operates on the compromise
agreement – it has the force of law.
b. XPN: If a civil case not falling within the authority of the lupon is
referred by the court to the lupon concerned for amicable settlement, 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. 416 in
relation to Sec. 408, RA 7160).
8.6. Repudiation
1. Repudiation of settlement: Any party to the dispute may repudiate the
settlement by filing with the lupon chairman a statement to that effect sworn to
before him. Such repudiation shall be sufficient basis for the issuance of the
certification for filing a complaint before the court (Sec. 418, RA 7160).
2. Parties are allowed to repudiate their agreement based on vitiation of consent
by:
a. Fraud
b. Violence
c. Intimidation
3. *****These grounds vitiate consent to the outcome of the proceedings; no
other ground is acceptable.
4. In conciliation, repudiation may be made within 10 days;372 because on the
10th day, the conciliation acquires force of judgment.
5. In arbitration, only within 5 days; after 5 days, the Pangkat will have to render an
arbitration award which is in the nature of a judgment.
372
Q: Randy filed before the Barangay Captain a complaint for reimbursement of expenses. After
several hearings, the parties executed an amicable settlement entitled “Kasunduan sa Pagbabayad.” Ten
days from the date of its execution passed and neither of the parties repudiated nor sought to
repudiate the settlement agreement. A writ of execution was filed to enforce the settlement agreement
and was granted. However, the judge, after a few days, recalled the writ of execution. Is the judge
correct?
A: No. The judge was guilty of ignorance of the law and dereliction of duty. Under Sec. 11
of P.D. 1508, the amicable settlement here had the force and effect of a final judgment of a court
upon the expiration of ten days from the date thereof, no repudiation of that settlement having been
made during that period. It was, therefore, the clear ministerial duty of the judge to implement and
enforce the amicable settlement agreement. Enforcement of the writ of execution may, of course, be
suspended in certain exceptional circumstances. In the instant case, no exceptional circumstance
existed. The contention of the judge that he had suspended execution of the amicable
settlement because he merely wanted to mediate between the parties, is completely devoid of
merit and quite incomprehensible for the parties had already amicably settled their case on the
barangay level, which settlement had resulted in the preparation and execution of the amicable
settlement (Santos v. Isidro, A.M. No. MTJ-89-30, August 16, 1991).
X. Rules of Procedure for Environmental Cases (A.M. No. 09-6-8-SC)
10.1. Scope and applicability of the rule 314

10.2. Civil procedure 314
10.2.1. Prohibition against temporary restraining order and preliminary injunction 316
10.2.2. Pre-trial conference; consent decree 317
10.2.3. Prohibited pleadings and motions 317
10.2.4. Temporary Environmental Protection Order (TEPO) 319
10.2.5. Judgment and execution; reliefs in a citizen’s suit 320
10.2.6. Permanent Environmental Protection Order; writ of continuing mandamus 320
10.2.7. Strategic lawsuit against public participation 322
10.3. Special proceedings 322
10.3.1. Writ of Kalikasan 324
10.3.2. Prohibited pleadings and motions 324
10.3.3. Discovery measures 326
10.3.4. Writ of continuing mandamus 327
10.4. Criminal procedure 328
10.4.1. Who may file 331
10.4.2. Institution of criminal and civil action 331
10.4.3. Arrest without warrant, when valid 331
10.2.4. Strategic lawsuit against public participation 332
10.4.5. Procedure in the custody and disposition of seized items 332
10.4.6. Bail 332
10.4.7. Arraignment and plea 333
10.4.8. Pre-trial 334
10.4.9. Subsidiary liabilities 334
10.5. Evidence 336
10.5.1. Precautionary principle 336
10.5.2. Documentary evidence 336
———————————————————————————————
10.1. Scope and applicability of the rule
SCOPE OF THE RULE on Environmental Cases

[] Section 2. Scope. — These Rules shall govern the procedure in civil, criminal373
and special civil actions before the Regional Trial Courts, Metropolitan Trial
Courts, Municipal Trial Courts in Cities, Municipal Trial Courts and
Municipal Circuit Trial Courts involving enforcement or violations of
environmental and other related laws, rules and regulations such as but not
limited to the following:
(a) Act No. 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;
(b) P.D. No. 705, Revised Forestry Code;
(c) P.D. No. 856, Sanitation Code;
(d) P.D. No. 979, Marine Pollution Decree;
(e) P.D. No. 1067, Water Code;
(f) P.D. No. 1151, Philippine Environmental Policy of 1977;
(g) P.D. No. 1433, Plant Quarantine Law of 1978;
(h) P.D. No. 1586, Establishing an Environmental Impact Statement System
Including Other Environmental Management Related Measures and for Other
Purposes;
(i) R.A. No. 3571, Prohibition Against the Cutting, Destroying or Injuring of
Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value
along Public Roads, in Plazas, Parks, School Premises or in any Other Public
Ground;
(j) R.A. No. 4850, Laguna Lake Development Authority Act;
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste Act;
(l) R.A. No. 7076, People’s Small-Scale Mining Act;
(m) R.A. No. 7586, National Integrated Protected Areas System Act including
all laws, decrees, orders, proclamations and issuances establishing protected areas;
(n) R.A. No. 7611, Strategic Environmental Plan for Palawan Act;
(o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
(r) R.A. No. 8749, Clean Air Act;
(s) R.A. No. 9003, Ecological Solid Waste Management Act;
(t) R.A. No. 9072, National Caves and Cave Resource Management Act;
(u) R.A. No. 9147, Wildlife Conservation and Protection Act;
(v) R.A. No. 9175, Chainsaw Act;
(w) R.A. No. 9275, Clean Water Act;
(x) R.A. No. 9483, Oil Spill Compensation Act of 2007; and
373 The MTC, acting as an Environmental Court, has original and exclusive jurisdiction over the following,
except: (2012 BAR)
a. criminal offenses punishable under the ChainSawAct (R.A.9175) [TOM: by elimination only because all
the rest of the laws are included; this is the only one which included “criminal offenses”, although Sec. 2 of the
law provides for criminal jurisdiction…]
b. violationoftheNIPASLaw(R.A.7586)
c. violation of the Mining Laws
d. violationofAnti-PollutionLaws
(y) Provisions in C.A. No. 141, The Public Land Act; R.A. No. 6657,
Comprehensive Agrarian Reform Law of 1988;
R.A. No. 7160, Local Government Code of 1991;
R.A. No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other
Environmental Laws (Amending the NIRC);
R.A. No. 7308, Seed Industry Development Act of 1992;
R.A. No. 7900, High-Value Crops Development Act;
R.A. No. 8048, Coconut Preservation Act;
R.A. No. 8435, Agriculture and Fisheries Modernization Act of 1997;
R.A. No. 9522, The Philippine Archipelagic Baselines Law;
R.A. No. 9593, Renewable Energy Act of 2008;
R.A. No. 9637, Philippine Biofuels Act; and other existing laws that relate to the
conservation, development, preservation, protection and utilization of the
environment and natural resources.
****The rules remain consistent with prevailing jurisprudence regarding the
doctrine of exhaustion of administrative remedies and primary jurisdiction.
These Rules apply to environmental cases arising from laws that relate to
the conservation, development, preservation, protection and utilization of
the environment and natural resources. These may include environmental laws
and those laws that may contain provisions that relate to the environment but
are not environmental laws per se (e.g. C.A. No. 141, “The Public Land Act”;
R.A. No. 7160, “The Local Government Code of 1990”, etc…). ****While this
section includes a list of such applicable laws, it is NOT MEANT TO BE
EXHAUSTIVE. (AM No. 09-6-8-SC, Annotation to the Rules of Procedure for
Environmental Cases, p. 100)
OBJECTIVES
Section 3. Objectives. - The objectives of these Rules are:
(a) To protect and advance the CONSTITUTIONAL right of the people to a
balanced and healthful ECOLOGY;
(b) To provide a simplified, speedy and inexpensive PROCEDURE for the
enforcement of environmental rights and duties recognized under the
Constitution, existing laws, rules and regulations, and international agreements;
(c) To introduce and adopt INNOVATIONS and BEST PRACTICES
ensuring the effective enforcement of remedies and redress for violation of
environmental laws; and
(d) To enable the courts to monitor and exact compliance with orders and
JUDGMENTS in environmental cases.
—————————————-
10.2. Civil procedure

10.2.1. Prohibition against temporary restraining order and preliminary

injunction
1. *****Only the SC can issue a TRO or writ of preliminary injunction
against lawful actions of government agencies that enforce environmental laws
or prevent violations thereof (Sec. 10, Rule 2, AM No. 09-6-8-SC).
*The judge shall report any action taken on a TEPO, EPO, TRO or a
preliminary injunction, including its modification and dissolution within 10 days
from the action taken to the SC, through the Office of the Court Administrator
(Sec. 11, Rule 2, AM No. 09-6-8-SC).
2. *****What is the difference between a TEPO and the prohibition against
issuance of TRO? A TEPO is premised on the violation of an environmental
law or a THREATENED damage or injury to the environment by any person,
even the government and its agencies while the prohibition against the
issuance of a TRO or preliminary injunction is premised on the presumption
of regularity on the government and its agencies in enforcing environmental
laws and protecting the environment (Annotation to the Rules of Procedure
for Environmental Cases, pp. 116-117).
10.2.2. Pre-trial conference; consent decree

1. Issuance of notice of pre-trial
Within 2 days from filing an answer to the counterclaim of cross-claim, if
any, the clerk of court shall issue a notice of pre-trial to be held not later than 1
month from the filing of the last pleading (Sec. 1, Rule3, AM No. 09-6-8-SC)
The court shall schedule the pre-trial and set as many pre-trial
conferences as may be necessary within a period of 2 months counted from
the date of the first pre-trial conference (Ibid.).
The judge shall put the parties and their counsels under oath, and they shall
remain under oath in all pre-trial conferences. The judge shall exert best
efforts to persuade the parties to arrive at a settlement of the dispute.
*****Evidence not presented during the pre-trial, except newly discovered
evidence, shall be deemed waived (Sec. 5, Rule 3).
2. MEDIATION
At the start of the pre-trial conference, the court shall inquire from the
parties if they have settled the dispute otherwise, the court shall immediately
refer the parties or their counsel, if authorized by their clients, to the Philippine
Mediation Center (PMC) unit for purposes of mediation. ****If not available, the
court shall refer the case to the clerk of court or legal researcher for mediation
(Sec. 3, Rule 3, AM No. 09-6-8-SC).
If the parties have not settled their dispute at this stage, the provision makes
it MANDATORY for the judge to refer the parties to mediation. (Annotation
to the Rules of Procedure for Environmental Cases).
3. PRELIMINARY CONFERENCE
If mediation fails, the court will schedule the continuance of the pre-trial.
Before the scheduled date of continuance, the court may refer the case to the
BRANCH CLERK of court for a preliminary conference for the following purposes:
a. ****To assist the parties in reaching a settlement;
b. To mark the documents or exhibits to be presented by the parties and
copies thereof to be attached to the records after comparison with the originals;
c. To ascertain from the parties the undisputed facts and admissions on
the genuineness and due execution of the documents marked as exhibits;
d. To require the parties to submit the depositions taken under Rule 23
of the Rules of Court, the answers to written interrogatories under Rule 25, and
the answers to request for admissions by the adverse party under Rule 26;
e. To require the production of documents or things requested by a party
under Rule 27 and the results of the physical and mental examination of
persons under Rule 28;
f. To consider such other matters as may aid in its prompt disposition;
g. To record the proceedings in the “Minutes of Preliminary Conference”
to be signed by both parties or their counsels;
h. To mark the affidavits of witnesses which shall be in question and
answer form and shall constitute the direct examination of the witnesses; and
*The parties or their counsel must submit to the branch clerk of court
the names, addresses and contact numbers of the affiants.
i. To attach the minutes together with the marked exhibits before the pre-
trial proper. (Sec. 4, Rule 3, AM No. 09-6-8-SC)
4. SUBMISSION OF DEPOSITIONS
During the preliminary conference, the branch clerk of court shall also
require the parties to submit the depositions taken under Rule 23 of the Rules
of Court, the answers to written interrogatories under Rule 25 and the answers
to request for admissions by the adverse party under Rule 26. The branch clerk
of court may also require the production of documents or things requested by a
party under Rule 27 and the results of the physical and mental examination of
persons under Rule 28. (Sec. 4, Rule 3, AM No. 09-6-8-SC)
*****The sole purpose for the use of depositions at pre-trial is to
OBTAIN ADMISSIONS. This excludes the presentation of evidence
(Annotation to the Rules of Procedure for Environmental Cases).
5. DUTY OF THE JUDGE during the pre-trial conference
a. Put the parties and their counsels under oath and they shall remain
under oath in all pre-trial conferences;
b. Exert best efforts to persuade parties to arrive at an amicable
settlement; or
c. Issue a CONSENT DECREE (Sec. 5, Rule 3, AM No. 09-6-8-SC).
6. *****Failure to appear at pre-trial: The court shall NOT DISMISS the
complaint, except upon repeated and unjustified failure of the plaintiff to
appear. The dismissal shall be WITHOUT prejudice, and the court may
proceed with the counterclaim. *****On the other hand, if the defendant fails
to appear at the pre-trial, the court shall receive evidence ex parte (Sec. 7, Rule
3, AM No. 09-6-8-SC).
CONSENT DECREE
1. It is a JUDICIALLY-APPROVED SETTLEMENT between concerned
parties based on public interest and public policy to protect and preserve the
environment (Sec. 4(b), Rule 1, AM No. 09-6-8-SC).
The judge may issue a consent decree approving the agreement between the
parties in accordance with law, morals, public order and public policy to
protect the right of the people to a balanced and healthful ecology (Sec. 5, Rule 3,
AM No. 09-6-8-SC).
2. Nature of consent decree
A consent decree derives its contractual nature from the fact of their being
entered into by the parties themselves through which they arrive at a certain
compromise with respect to the issues involved in the case, whereas their
judicial feature is acquired through the approval of the court. It has a number
of advantages:
a. It encourages the parties (the government and the violators) to come up
with comprehensive, mutually acceptable solutions to the environmental
problem, and since the agreement was arrived at voluntarily, there is a greater
possibility of actual compliance;
b. It is open to public scrutiny;
c. It allows the parties to address issues other than those presented to
the court; and
d. It is still subject to judicial approval and can be enforced through a
court order (Annotation to the Rules of Procedure for Environmental Cases).
10.2.3. Prohibited pleadings and motions

1. Motion to dismiss the complaint;
2. Motion for a bill of particulars;
3. Motion for extension of time to file pleadings, except to file answer, the
extension not to exceed fifteen (15) days;
4. Motion to declare the defendant in default;
5. Reply and rejoinder; and
6. Third party complaint (Sec. 2, Rule 2, AM No. 09-6-8-SC).
****Petition for certiorari is permitted since it raises fundamentally
questions of jurisdiction and the Supreme Court may not be deprived of its
certiorari jurisdiction under Article VIII, § 5(2) of the Constitution (Annotation to
the Rule of Procedure for Environmental Cases).
[] *****When motion for postponement, motion for new trial or petition
for relief from judgment is allowed: It shall only be allowed in highly
meritorious cases or to prevent miscarriage of justice (Annotation to the Rule
of Procedure for Environmental Cases).
10.2.4. Temporary Environmental Protection Order (TEPO)

1. Issuance of a TEPO:
If it appears from the verified complaint with a prayer for the issuance of
a TEPO that the matter is of EXTREME URGENCY and the applicant will
suffer GRAVE INJUSTICE and IRREPARABLE INJURY, the executive
judge of the multiple-sala court before raffle or the presiding judge of a
single-sala court as the case maybe, may issue *****ex parte a TEPO effective for
only 72 hours from date of the receipt of the TEPO by the party or person
enjoined (Sec. 8, Rule 2, AM No. 09-6-8-SC).
Within said period, the court where the case is assigned, shall conduct a
SUMMARY HEARING to determine whether the TEPO may be extended
until the termination of the case. The court where the case is assigned shall
periodically monitor the existence of acts that are the subject matter of the
TEPO even if issued by the executive judge, and may lift the same at any time as
circumstances may warrant (Sec. 8, Rule 2, AM No. 09-6-8-SC).
2. ****Exemption from posting of bond: The applicant shall be exempted from
the posting of a bond for the issuance of a TEPO (Ibid.).
3. Dissolution of TEPO: ****The TEPO may be dissolved if it appears after
hearing that its issuance or continuance would cause IRREPARABLE
DAMAGE to the party or person enjoined while the applicant may be fully
compensated for such damages as he may suffer and subject to the posting of a
sufficient bond by the party or person enjoined (Ibid.).
*The grounds for motion to dissolve a TEPO shall be supported by
affidavits of the party or person enjoined which the applicant may oppose, also
by affidavits (Ibid.). ****A TEPO may be converted into a writ of continuing
mandamus should the circumstances warrant. (Section 3, Rule 5, AM No. 09-6-8-
SC)
10.2.5. Judgment and execution; reliefs in a citizen’s suit

1. CITIZEN’S SUIT:
It is an action to enforce rights or obligations under environmental laws,
which any Filipino citizen in representation of others, *****including minors
or generations yet UNBORN, may file (Sec. 5, Rule 2, AM No. 09-6-8-SC).
It is intended to encourage the protection of the environment. The
provision liberalizes standing for all cases filed enforcing environmental laws
on the principle that humans are stewards of nature (Annotation to the Rules
2. Publication NOT required
Upon the filing of a citizen’s suit, the court shall issue an order which shall
contain a brief description of the cause of action and the reliefs prayed for,
requiring all interested parties to manifest their interest to intervene in the case
within 15 days from notice thereof. The plaintiff may publish the order once in
a newspaper of a general circulation in the Philippines or furnish all affected
barangays copies of said order. (Sec. 5, Rule 2, AM No. 09-6-8-SC). This adopts
the features of the general rule on publication found in cases in rem, and is
meant to reflect the distinct nature of environmental cases. *****In this Rule,
however, PUBLICATION IS PERMISSIVE AND NON-
JURISDICTIONAL and is meant only to encourage public participation
(Annotation to the Rules of Procedure for Environmental Cases).
3. REFERRAL TO A COMMISSIONER
The court may motu proprio, or upon motion of the prevailing party,
order that the enforcement of the judgment or order be referred to a
commissioner to be appointed by the court. The commissioner shall file with the
court written progress reports on a quarterly basis or more frequently when
necessary (Sec. 4, Rule 5, AM No. 09-6-8-SC).
4. RELIEFS IN A CITIZEN’S SUIT
If warranted, the court may grant to plaintiff proper reliefs which shall
include:
a. Protection, preservation or rehabilitation of the environment and the
payment of attorney’s fees, costs of suit and other litigation expenses;
b. It may also require the violator to submit a program of rehabilitation or
restoration of the environment, the costs of which shall be borne by the violator; or
c. Require the violator to contribute to a special trust fund for that
purpose subject to the control of the court (Sec. 1, Rule 5, A.M. No. 09-6-8-SC).
****In a citizen’s suit, the court shall defer the payment of filing and
other legal fees that shall serve as FIRST LIEN on the judgment award (Sec.
12, Rule 2, A.M. No. 09-6-8-SC).
5. NO AWARD OF DAMAGES IN A CITIZEN’S SUIT
A party or person who suffers damage or injury arising from an
environment prejudice, which is also the same subject of citizen’s suit, ****cannot
claim for damages in a citizen’s suit since it is the environment that is
vindicated in the action. Based on this, a citizen’s suit can take place
simultaneously with the filing of an individual complaint (Annotation to the Rules
6. STAYING OF JUDGMENT ON APPEAL
GR: NO. Any judgment directing the performance of acts for the
protection, preservation or rehabilitation of the environment shall be
EXECUTORY PENDING APPEAL unless restrained by the appellate court
(Sec. 2, Rule 5, AM No. 09-6-8-SC).
****XPN: If the appellate court acted with GREAT ABUSE OF
DISCRETION refusing to act on the application for a TRO, a petition for
certiorari under Rule 65 can be brought before the SC (Annotation to the Rules
7. EXECUTION OF JUDGMENT
The process of execution shall terminate upon a SUFFICIENT
SHOWING that the decision or order has been implemented to the
satisfaction of the court in accordance with Section 14, Rule 39 of the Rules of
Court (Sec. 5, Rule 5, AM No. 09-6-8-SC).
10.2.6. Permanent Environmental Protection Order; writ of continuing

mandamus
1. ENVIRONMENTAL PROTECTION ORDER
It is an order issued by the court directing or enjoining any person or
government agency to PERFORM OR DESIST from performing an act in
order to protect, preserve or rehabilitate the environment (Sec. 4(d), Rule 1,
A.M. No. 09-6-8-SC).
2. WHEN may the court convert a TEPO to a permanent EPO? When may
the court issue a writ of continuing mandamus?
In the judgment, the court may convert the TEPO to a permanent EPO or
issue a writ of continuing mandamus directing the performance of acts which
shall be effective until the judgment is fully satisfied. (Sec. 3, Rule 5, A.M. No.
09-6-8-SC).
The court may, by itself or through the appropriate government
agency, MONITOR the execution of the judgment and require the party
concerned to submit written reports on a quarterly basis or sooner as may be
necessary, detailing the progress of the execution and satisfaction of the judgment.
The other party may, at its option, submit its comments or observations on the
execution of the judgment (Sec. 3, Rule 5, AM No. 09-6-8-SC).
3. ISSUANCE OF TEPO in a petition for a writ of continuing mandamus
The court in which the petition for a writ of continuing mandamus is filed
may:
a. Issue such orders to expedite the proceedings; and
b. Grant a TEPO for the preservation of the rights of the parties pending
such proceedings (Sec. 5, Rule 8, AM No. 09-6-8-SC).
[] A writ of continuing mandamus is issued by a court in an environmental
case directing any agency or instrumentality of the government or officer
thereof to perform an act or series of acts decreed by final judgment which
shall remain effective UNTIL judgment is FULLY SATISFIED (Sec. 4 (c),
Rule 1, AM No. 09-6-8-SC).
10.2.7. Strategic lawsuit against public participation

1. SLAPP: It is a legal action filed to harass, vex, exert undue pressure or
stifle any legal recourse that any person, institution or the government has taken
or may take in the enforcement of environmental laws, protection of the
environment or assertion of environmental rights (Sec. 1, Rule 6, AM No. 09-
6-8-SC).
2. SLAPP AS A LEGAL DEFENSE
*****The defendant may file an answer interposing as a defense that
the case is a SLAPP and shall be supported by documents, affidavits, papers
and other evidence; and, by way of counterclaim, pray for damages, attorney’s
fees and costs of suit (Sec. 1, Rule 6, A.M. No. 09-6-8-SC). NB: a motion to
dismiss is filed.374
The nature of the hearing on the defense of a SLAPP shall be SUMMARY
in nature. The parties must submit all available evidence in support of their
respective positions (Sec. 3, Rule 6, A.M. No. 09-6-8-SC).
3. HEARING
The plaintiff or adverse party has ****non-extendible period of 5 days
from receipt of notice that an answer has been filed, to file an opposition. The
defense of a SLAPP shall be set for hearing by the court after issuance of the
order to file an opposition within 15 days from filing of the comment or the
lapse of the period (Sec. 2, Rule 6, AM No. 09-6-8-SC).
*****A SLAPP suit is in every sense a HARASSMENT SUIT and the
affront against constitutional rights is the very reason why no pending legal
action is required to counter a SLAPP suit. (Annotation to the Rules of
Procedure for Environmental Cases)
Within 30 days, the court shall resolve the question of SLAPP (Sec. 4,
Rule 6, AM No. 09-6-8-SC).
4. QUANTUM OF PROOF
****The party seeking the dismissal of the case must prove by
SUBSTANTIAL EVIDENCE that his act for the enforcement of
environmental law is a legitimate action for the protection, preservation and
rehabilitation of the environment.
****The party filing the action assailed as a SLAPP shall prove by
PREPONDERANCE OF EVIDENCE that the action is not a SLAPP and
is a valid claim (Ibid.).
5. DISMISSAL OF THE ACTION
If the court dismisses the action, the court may award damages, attorney’s
fees and costs of suit under a counterclaim if such has been filed. *****The
dismissal shall be WITH PREJUDICE (Sec. 4, Rule 6, AM No. 09-6-8-SC).
The dismissal of the SLAPP suit constitutes RES JUDICATA and is a bar to the
refiling of a similar case (Annotation to the Rules of Procedure for
Environmental Cases).
6. ****When the court rejects the defense of a SLAPP
The evidence adduced shall be treated as evidence of the parties on the
merits of the case, and the action shall proceed in accordance with the Rules of
374 The Director of the BFAR launches an intensified campaign against illegal fishpen operators situated in
Laguna de Bay. The illegal fishpen operators file a Section 3 (e), R.A. 3019 (causing undue injury or
benefit) case against the BFAR Director before the Sandiganbayan. The Director's best remedy before
Sandiganbayan is: (2012 BAR)
a. fileaMotiontoQuashbasedonlackofjurisdictionovertheperson.
b. fileaMotiontoQuashfornon-exhaustionofadministrativeremedies.
c. file a Motion to Dismiss because the complaint is a SLAPP suit.
d. moveforsuspensionofproceedingsbecauseofapre-judicialquestion.
Court (Sec. 4, Rule 6, AM No. 09-6-8-SC).

———————————————————
10.3. Special proceedings
10.3.1. Writ of Kalikasan

1. It is an EXTRAORDINARY REMEDY which may be issued depending on
the MAGNITUDE of environmental damage. The environmental damage must
be on which prejudices the life, health or property of inhabitant in
*****TWO OR MORE CITIES OR PROVINCES, or that which transcends
political and territorial boundaries. (Sec. 1, Rule 7, A.M. No. 09-6-8-SC)375
2. Court which has jurisdiction
The verified petition should be *****filed with the SC or with the CA (Sec.
3, Rule 7, A.M. No. 09-6-8-SC).
3. Magnitude of environmental damage
It must be of environmental damage of such magnitude as to prejudice the
375
BAR 2016: Q: The officers of "Ang Kapaligiran ay Alagaan, Inc." engaged your services to file an
action against ABC Mining Corporation which is engaged in mining operations in Sta. Cruz,
Marinduque. ABC used highly toxic chemicals in extracting gold. ABC's toxic mine tailings were
accidentally released from its storage dams and were discharged into the rivers of said town. The mine
tailings found their way to Calancan Bay and allegedly to the waters of nearby Romblon and Quezon.
The damage to the crops and loss of earnings were estimated at P1 Billion. Damage to the environment
is estimated at P1 Billion. As lawyer for the organization, you are requested to explain the
advantages derived from a petition for writ of kalikasan before the Supreme Court over a
complaint for damages before the RTC of Marinduque or vice-versa. What action will you
recommend? Explain.
SUGGESTED ANSWER: I will recommend the filing of a Petition for the issuance of a Writ of
Kalikasan. The following are the advantages of such a petition over a civil complaint for damages.
Firstly there will be no issue regarding the legal standing or legal capacity of the Ang Kapaligiran
ay Alagaan Inc.” (AKAI)to file the action. Section 1, Rule 7 of the Rules of Procedure for
Environmental Cases (RPEC) provides that the writ of Kalikasan is available to a people’s
organization, non-governmental organization, or any public interest group. On the other hand,
the legal capacity of AKAI to file an action for damages in behalf of its members may be questioned
since a corporation has a personality separate from that of its members. Secondly, the petitioner in a
petition for writ of kalikasan is exempt from the payment of docket fees unlike in a civil complaint
for damages. Thirdly in a petition for writ of kalikasan, the petitioners may avail of the
precautionary principle in environmental cases which provides that when human activities may
lead to threats of serious and irreversible damage to the environment that is scientifically plausible but
uncertain, action shall be taken to avoid or diminish that threat. In effect, the precautionary
principle shifts the burden of evidence of harm away from those likely to suffer harm and onto
those desiring to change the status quo. In a civil complaint for damages, the burden of proof to
show damages is on the plaintiff. Finally, the judgment is a writ of kalikasan case is immediately
executory unlike in a civil complaint for damages. [On the other hand,] The advantage of the civil
complaint for damages is that the court may award damages to the Petitioners for the injury suffered
which is not the case in a petition for writ of kalikasan. At any rate a person who avails of the Writ of
Kalikasan may also file a separate suit for the recovery of damages. (Jurist Review Center, Inc.)
life, health or property of inhabitants in two or more cities or provinces (Sec.

1, Rule 7, AM No. 09-6-8-SC).
4. *****PERSONS WHO MAY FILE a petition for a writ of kalikasan
a. Natural or juridical person
b. Entity authorized by law
c. People’s organization, non-governmental organization, or any
public interest group accredited by or registered with any government agency
(Ibid.).
[] *****The petition must be ON BEHALF of persons whose
constitutional right to a BALANCED AND HEALTHFUL ECOLOGY is
VIOLATED OR THREATENED with violation by an unlawful act or
omission of a public official or employee, or private individual or entity,
involving environmental damage of such MAGNITUDE as to prejudice the life, health or
property of inhabitants in TWO OR MORE CITIES OR PROVINCES.
5. Persons AGAINST WHOM a petition for a writ of kalikasan is filed
a. The government, as represented by a public official or employee; or
b. *****A private individual or entity.
6. CONTENTS OF A VERIFIED PETITION
a. Personal circumstances of the petitioner;
b. Name and personal circumstances of the respondent or if the name and
personal circumstances are unknown and uncertain, the respondent may be
described by an assumed appellation;
c. The environment law, rule or regulation violated or threatened to be
violated;
d. The act or omission complained of;
e. The environmental damage of such magnitude as to prejudice the life,
health or property of inhabitants in two or more cities or provinces;
f. All relevant and material evidence consisting of affidavit of witnesses,
documentary evidence, scientific or other expert studies, and if possible, object
evidence;
g. ****Should be accompanied by certification against forum shopping;
and
h. The reliefs prayed for which may include a prayer for the issuance of
a TEPO (Sec. 2, Ibid.).
*****A verified petition is jurisdictional.
7. EXEMPTION FROM PAYMENT OF DOCKET FEES
The petitioner is exempt from payment of docket fees (Sec. 4, Rule 7,
AM No. 09-6-8-SC). The exemption encourages public participation of
availing the remedy. (Annotation to the Rules of Procedure for Environmental
Cases)
8. ISSUANCE OF THE WRIT OF KALIKASAN
****Within 3 days from the date of filing of the petition, if the petition is
sufficient in form and substance, the court shall give an order:
(a) issuing the writ; and

(b) requiring the respondent to file a verified return as provided in Sec. 8 of
Rule 8 (Sec. 5, Rule 7, AM No. 09-6-8-SC).
9. FAILURE TO FILE A VERIFIED RETURN
Failure to file a return shall make the court to *****proceed to hear the
petition ex parte (Sec. 10, Ibid.).
10. INDIRECT CONTEMPT
After hearing, the court may punish the respondent who refuses or
unduly delays the filing of a return or who makes a false return or any person
who disobeys or resists a lawful process or order of the court for INDIRECT
CONTEMPT under Rule 71 of the Rules of Court (Sec. 13, ibid.).
11. PRELIMINARY CONFERENCE
After receipt of the return, the court may call for a preliminary conference;
the hearing including the preliminary conference shall not extend beyond 60
days and shall be ****given the same priority as petitions for the writs of
habeas corpus, amparo and habeas data (Sec. 11, Ibid.).
After hearing, the court shall issue an order submitting the case for
decision and may require the filing of memoranda. (Sec. 14, Ibid.)
12. RELIEFS THAT MAY BE GRANTED under the writ
a. Directing respondent to permanently cease and desist from
committing acts or neglecting the performance of a duty in violation of
environmental laws resulting in environmental destruction and damage;
b. Directing respondent to protect, preserve, rehabilitate or restore the
environment;
c. Directing respondent to monitor strict compliance with the decision
and orders of the court;
d. Directing respondent to make periodic reports on the execution of the
final judgment;
e. SUCH OTHER RELIEFS which relate to the right of the people to a
balanced and healthful ecology or to the protection, preservation,
rehabilitation or restoration of the environment, *****except the award of
damages to individual petitioners (Sec. 15, Ibid.).
12. APPEAL
Within 15 days from the date of notice of the adverse judgment or denial
of motion for reconsideration, any party may appeal to the SC under Rule 45.
*****This is an exception to Rule 45 since it may raise question of facts on
appeal under Rule 45 (Sec. 16, Ibid.).
13. INSTITUTION OF SEPARATE ACTIONS
The filing of the petition for the writ of kalikasan shall not preclude the
filing of separate civil, criminal or administrative actions (Sec. 17, Ibid.).
10.3.2. Prohibited pleadings and motions

1. Motion to dismiss
2. Motion for extension of time to file a return

3. Motion for postponement
4. Motion for a bill of particulars
5. Counterclaim or cross-claim
6. Third-party complaint
7. Reply
8. Motion to declare respondent in default (Sec. 9, Ibid.).
*****A motion for intervention is not a prohibited pleading since the
magnitude of the environmental damage entails a large number of parties that
may avail of the writ of kalikasan (Annotation to the Rules of Procedure for
Environmental Cases) .
10.3.3. Discovery measures

1. Interim reliefs available to the petitioner upon filing a verified motion
a. Ocular inspection; or
b. Production or inspection of documents or things (Sec. 12, Rule 7,
AM No. 09-6-8-SC).
2. Order for Ocular inspection vs. Order for the production or inspection of
documents or things
Order for Ocular Inspection Order for the Production or Inspection of
Documents or Things
Purpose To order any person in possession or control of To order any person in possession,
designated land or other property to permit entry for custody or control of any designated
the purpose of inspecting or photographing documents, papers, books, accounts, letters,
the property or any relevant object or operation photographs, objects or tangible things, or
thereon. objects in digitized form, which constitute or
contain evidence relevant to the petition or the
return, to produce and permit their inspection,
copying, photographing by or on behalf of
the movant.
Contents 1. That the order is necessary to establish the That the order is necessary to
of the
motion magnitude of the violation or the threat as to establish the magnitude of the
prejudice the life, health or property of violation or the threat as to prejudice
inhabitants in two or more cities or provinces; 2. the life, health or property of
Description of the place or places to be inhabitants in two or more cities or
inspected; 3. The supporting affidavits of provinces.
witnesses having personal knowledge of the
violation or threatened violation of environmental
law.
Contents 1. Specify the authorized person or persons to 1. Specify the authorized person or
of the
order make the inspection; 2. The date, time, place, persons to make production; 2. The
and manner of making the inspection; 3. Other date, time, place, and manner of
conditions protecting the constitutional right of making the inspection or production; 3.
all parties. Other conditions protecting the
constitutional right of all parties.
(Philippine Judicial Academy 2011)

10.3.4. Writ of continuing mandamus

1. It is a writ issued by a court in an environmental case directing any agency or
instrumentality of the government or officer thereof to perform an act or
series of acts decreed by final judgment which shall *****remain effective until
judgment is fully satisfied (Sec. 4 (c), Rule 1, AM No. 09-6-8-SC).
The writ of continuing mandamus was first introduced in Metropolitan
Manila Development Authority vs. Concerned Residents of Manila Bay
(G.R. Nos. 171947-48, December 18, 2008)376, as a special civil action that may be
availed of to compel the performance of an act specially enjoined by law. The
petition should mainly involve an environmental and other related law, rule or
regulation or a right therein. A writ of continuing mandamus is, *****in essence,
a command of CONTINUING COMPLIANCE377 with a final judgment as
it “permits the court to retain jurisdiction after judgment in order to ensure the
successful implementation of the reliefs mandated under the court’s
decision” (Dolot v. Paje, G.R. No. 199199, August 27, 2013).
2. WHEN a writ of continuing mandamus may be availed of
A person may file a verified petition for a writ of continuing mandamus
when any of the following instances are present:********(requisites)378
376
BAR 2016: Hannibal, et. al., concerned residents of Laguna de Bay, filed a complaint for mandamus
against the Laguna Lake Development Authority, the DENR, the DPWH, DILG, DoA, DoB, and
PNP before the RTC of Laguna alleging that the continued neglect of defendants in performing their
duties has resulted in serious deterioration of the water quality of the lake and the degradation of the
marine life in the lake. The plaintiffs prayed that said government agencies be ordered to clean up
Laguna de Bay and restore its water quality to Class C waters as prescribed by Presidential Decree No.
1152, otherwise known as the Philippine Environment Code. Defendants raise the defense that the
cleanup of the lake is not a ministerial function and they cannot be compelled by mandamus to
perform the same. The RTC of Laguna rendered a decision declaring that it is the duty of the agencies
to clean up Laguna de Bay and issued a permanent writ of mandamus ordering said agencies to
perform their duties prescribed by law relating to the cleanup of Laguna de Bay. Is the RTC correct in
issuing the writ of mandamus? Explain.
SUGGESTED ANSWER: Yes, the RTC is correct. In MMDA v. Concerned Residents of Manila
Bay, 18 December 2008, the SC held that the cleaning or rehabilitation of Manila Bay can be
compelled by mandamus. The ruling in MMDA may be applied by analogy to the clean up of the
Laguna de Bay. While the term issued by the RTC of Laguna is a permanent writ of mandamus, this
should be considered only as a semantic error and that what the RTC really intended to issue is a
writ of continuing mandamus. There is no such thing as a permanent writ of mandamus since the
writ shall cease to be effective once the judgment is fully satisfied. (Jurist Review Center, Inc.)
377
If warranted, the court shall grant the privilege of the writ of continuing mandamus requiring
respondent to perform an act or series of acts until the judgment is fully satisfied and to grant such
other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent.
*******The court shall require the respondent to submit periodic reports detailing the progress and
execution of the judgment, and the court may evaluate and monitor compliance. (A.M. No. 09-6-
8-SC, Rule 8, Section 7)
378
Continuing mandamus is a writ issued by a court in an environmental case directing any agency
or instrumentality of the government or officer thereof to perform an act or series of acts decreed by
a. When the respondent either

i. unlawfully omits to perform a duty specifically enjoined by law,
arising from an office, trust or station, in relation to the enforcement or violation
of an environmental law, rule or regulation or a right, or
ii. unlawfully excludes another from the use or enjoyment of such
right and
b. There is no other plain, speedy and adequate remedy in the ordinary
course of law (Sec. 1, Rule 8, Ibid.).
*The verified petition should also contain a sworn certification of non-
forum shopping.
3. Where to file the petition
*****RTC which has territorial jurisdiction over the unlawful act or
omission; CA; or SC (Sec. 2, Ibid.).
4. CONTENTS OF A VERIFIED PETITION379
a. Allegation of facts;
b, Specific allegation that the petition concerns an environmental law, rule
or regulation;
c. Prayer that judgment be rendered commanding the respondent to do an
act or series of acts until the judgment is fully satisfied;
d. Prayer for payment of damages sustained by the plaintiff due to malicious
neglect to perform legal duties; and
e. Sworn certification of non-forum shopping (Sec. 1, Rule 8, AM No. 09-6-
8-SC).
5. Payment of docket fees NOT required
final judgment which shall remain effective until judgment is fully satisfied. (A.M. No. 09-6-8-SC,
otherwise known as “Rules of Procedure for Environmental Cases,” Rule 1, Section 4[c]). Requisites:
1. An agency or instrumentality of the government or officer thereof:
(a) unlawfully neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station in connection with the enforcement or violation of
an environmental law rule or regulation or a right therein, or
(b) unlawfully excludes another from the use or enjoyment of such right;
2. there is no other plain, speedy and adequate remedy in the ordinary course of law. (A.M. No.
09-6-8-SC, Rule 8)
379 The petition for the issuance of a Writ of Continuing Mandamus shall:
1. be verified;
2. contain a sworn certification of non-forum shopping;
3. allege the facts with certainty and specify that the petition concerns an environmental law,
rule or regulation;
4. attaching thereto supporting evidence;
5. pray that judgment be rendered commanding the respondent to do an act or series of acts
until the judgment is fully satisfied, and to pay damages sustained by the petitioner by
reason of the malicious neglect to perform the duties of the respondent, under the law, rules or
regulations; and
6. be filed with the Regional Trial Court exercising jurisdiction over the territory where the
actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court.
(A.M. No. 09-6-8-SC, Rule 8)
*****The petitioner is EXEMPT from payment of docket fees (Sec. 3,

Rule 8, AM No. 09-6-8-SC).
6. ISSUANCE OF THE WRIT OF CONTINUING MANDAMUS
If the court finds the petition to be sufficient in form and substance, it
shall *****issue the writ and require the respondent to comment on the
petition within 10 days from receipt of a copy thereof (Sec. 4, Rule 8, AM No.
09-6-78-SC).
The order to comment shall be served on the respondents in such manner
as the court may direct, together with a copy of the petition and any annexes
thereto (Sec. 4, Rule 8, AM No. 09-6-8-SC).
7. EXPEDITING PROCEEDINGS
The court in which the petition is filed may:
a. Issue such orders to expedite the proceedings; and
b. Grant a TEPO for the preservation of the rights of the parties
pending such proceedings (Sec. 5, Rule 8, AM No. 09-6-8-SC).
8. Nature of the hearing
*****It is SUMMARY in nature. The court, after the comment is filed or
the time for the filing thereof has expired, shall require the parties to submit
memoranda (Sec. 6, Rule 8, AM No. 09-6-8-SC).
9. RESOLUTION OF THE PETITION
The petition shall be resolved without delay within 60 days from the date
of the submission of the petition for resolution (Sec. 6, Rule 8, AM No. 09-6-8-
SC).
10. JUDGMENT: If granted:
a. The court shall require the respondent to perform an act or series of
acts until judgment is fully satisfied and to grant such other reliefs as may be
warranted resulting from the wrongful or illegal acts of the respondent;
b. The court shall require the respondent to submit periodic reports
detailing the progress and execution of the judgment;
c. The court may by itself or through a commissioner or appropriate
government agency, evaluate and monitor compliance (Sec. 7, Ibid.);
d. PERIODIC REPORTS submitted by respondent detailing compliance
with the judgment shall be contained in partial returns of the writ (Sec. 8, Ibid.).
[] *****Submission of periodic reports: The court shall require the
respondent to submit periodic reports detailing the progress and execution of the
judgment, and the court may, by itself or through a commissioner or the
appropriate government agency, evaluate and monitor compliance (Sec. 7,
Rule 8, AM No. 09-6-8-SC).
*The petitioner may submit its comments or observations on the execution
of the judgment (Ibid.).
11. FINAL RETURN OF THE WRIT
Upon full satisfaction of judgment a final return of the writ shall be
made by the respondent (Sec. 8, Rule 8, AM No. 09-6-78-SC).
If the court finds that judgment has been fully implemented, the
satisfaction of judgment shall be entered in the court docket (Ibid.).
WRIT OF KALIKASAN VS. WRIT OF CONTINUING

MANDAMUS*****
Writ of Kalikasan Writ of Continuing Mandamus
Subject An unlawful act or omission of a public Unlawful neglect in the performance of

Matter
official or employee, or private individual an act which the law specifically enjoins
or, entity, of such magnitude as to as a duty resulting from an office, trust or
prejudice the life, health, or property of station in connection with the
inhabitants in two or more cities or enforcement or violation of an
provinces. environmental law, rule or regulation, or
a right therein. The unlawful exclusion of
another from the use or enjoyment of
such right and both instances, there is no
other plain, speedy and adequate
remedy in the ordinary course of law.
Who may One who is personally aggrieved One who is personally aggrieved by the
file
unlawful act or omission
Responde Public or private entity or individual Government and its officers
nt
DF Exempted from docket fees Exempted also
Venue SC and CA SC, CA and RTC that has territorial JN

DMs Ocular inspection order &Production order None
Damages None; the party must institute a separate Allow damages for malicious neglect
for
personal action for the recovery of damages. of the performance of the legal duty of
injury the respondent.
10.4. Criminal procedure
10.4.1. Who may file

1. Any offended party, peace officer or any public officer charged with the
enforcement of an environmental law (Sec. 1, Rule 9, AM No. 09-6-8-SC).
2. When there is no private offended party
In criminal cases, where there is no private offended party, a counsel
whose services are offered by any person or organization may be allowed by the
court as special prosecutor, with the consent of and subject to the control and
supervision of the public prosecutor (Sec. 3, Rule 9, AM No. 09-6-8-SC).
10.4.2. Institution of criminal and civil action

1. Complainant can institute civil action for recovery of damages before the
criminal action.
2. Complainant can reserve right to separately institute the civil action from the
criminal action. (Sec. 1, Rule 10, AM No. 09-6-8-SC)
****This right may be waived by the complainant (Ibid.).
[] When reservation should be made: During arraignment except when
the civil action has been instituted prior to the criminal action (Ibid.).
3. Award of damages
The private offended party. If there is none, the damages less the filing fees,
shall accrue to the funds of the agency charged with the implementation of
the environmental law violated (Ibid.).
*****The awarded damages shall be used for the restoration and
rehabilitation of the environment adversely affected (Ibid.).
10.4.3. Arrest without warrant, when valid

*An arrest without warrant is valid:
1. When, in his presence, the person to be arrested has committed, is actually
committing or is attempting to commit an offense; or
2. 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. (Sec, 1, Rule 11, AM No. 09-6-8-SC)
*Individuals deputized by the proper government agency who are enforcing
environmental laws shall enjoy the presumption of regularity under Sec. 3(m),
Rule 131 of the Rules of Court when effecting arrests for violations of
environmental laws (Ibid.).
10.2.4. Strategic lawsuit against public participation

1. SLAPP AS A DEFENSE in criminal cases
The accused may file a motion to dismiss on the ground that the action
is a SLAPP upon the filing of an information in court and before arraignment
(Sec. 1, Rule 19, A.M. No. 09-6-8-SC).
The court shall grant the motion if the accused establishes in the
summary hearing that the criminal case has been filed with intent to harass,
vex, exert undue pressure or stifle any legal recourse that any person,
institution or the government has taken or may take in the enforcement of
environmental laws, protection of the environment or assertion of environmental
rights (Sec. 3, Rule 19, AM No. 09-6-8-SC).
2. *****If the court denies the motion, it shall immediately proceed with the
arraignment of the accused (Ibid.).
10.4.5. Procedure in the custody and disposition of seized items

1. The apprehending officer having initial custody and control of the seized items,
equipment, paraphernalia, conveyances and instruments shall physically inventory
and whenever practicable, photograph the same in the presence of the person
from whom such items were seized.
2. Thereafter, the apprehending officer shall submit to the issuing court the return
of the search warrant within five (5) days from date of seizure or in case of
warrantless arrest, submit within 5 days from date of seizure, the inventory report,
compliance report, photographs, representative samples and other pertinent
documents to the public prosecutor for appropriate action.
3. Upon motion by any interested party, the court may direct the auction sale of
seized items, equipment, paraphernalia, tools or instruments of the crime. The
court shall, after hearing, fix the minimum bid price based on the
recommendation of the concerned government agency. The sheriff shall conduct
the auction.
4. The auction sale shall be with notice to the accused, the person from whom
the items were seized, or the owner thereof and the concerned government
agency.
5. The notice of auction shall be posted in three conspicuous places in the city or
municipality where the items, equipment, paraphernalia, tools or instruments of
the crime were seized.
6. The proceeds shall be held in trust and deposited with the government
depository bank for disposition according to the judgment (Sec. 2, Rule 12, AM
No. 09-6-8-SC).
TWO ASPECTS OF SEIZURE

1. The first aspect concerns the chain of custody of the seized items, equipment,
paraphernalia, conveyances, and instruments. Subparagraphs (a) and (b) are meant
to assure the integrity of the evidence after seizure, for later presentation at the
trial.
2. The second aspect deals with the disposition of the seized materials. This
addresses the concern of deterioration of the materials, most of which are
perishable, while in custodia legis (Annotation to the Rules of Procedure for
10.4.6. Bail
1. Where filed
It is 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 RTC of said place,
or if no judge thereof is available, with any metropolitan trial judge, municipal
trial judge or municipal circuit trial judge therein. If the court grants bail, the court
may issue a hold-departure order in appropriate cases (Sec. 1, Rule 14, AM
No. 09-6-8-SC).
2. DUTY OF THE COURT before granting the application for bail
The judge must read the information to the accused in a language known
to and understood by the accused (Sec. 2, Rule 14, AM No. 09-6-8-SC).
3. Contents of the written undertaking which the accused must sign
a. To appear before the court that issued the warrant of arrest for
arraignment purposes on the date scheduled, and if the accused fails to appear
without justification on the date of arraignment, accused waives the reading
of the information and authorizes the court to enter a plea of not guilty on behalf
of the accused and to set the case for trial;
b. To appear whenever required by the court where the case is pending;
and
c. To waive the right of the accused to be present at the trial, and upon
failure of the accused to appear without justification and despite due notice, the
trial may proceed in absentia (Ibid.).
*****A key innovation in this section is the execution of an undertaking
by the accused and counsel, EMPOWERING THE JUDGE TO ENTER A
PLEA OF NOT GUILTY, in the event the accused fails to appear at the
arraignment (Annotation to the Rules of Procedure for Environmental Cases).
10.4.7. Arraignment and plea

1. Arraignment of the accused
The court shall set the arraignment of the accused within 15 days from
the time it acquires jurisdiction over the accused (Sec. 1, Rule 15, AM No. 09-
6-8-SC). On the scheduled date of arraignment, the court shall consider plea-
bargaining arrangements (Sec. 2, Rule 15, AM No. 09-6-8-SC).
The notice that plea-bargaining will be entertained on the date of
arraignment must be sent to the public prosecutor, the offended party and the
government agency concerned (Annotation to the Rules of Procedure for
2. Duty of the court when the prosecution and offended party or concerned
government agency AGREE TO THE PLEA offered by the accused
a. Issue an order which contains the plea-bargaining arrived at;
b. Proceed to receive evidence on the civil aspect of the case, if any; and
c. Render and promulgate judgment of conviction, including the civil
liability for damages (Sec. 2, Rule 15, AM No. 09-6-8-SC).
10.4.8. Pre-trial
1. It shall take place within 30 days from arraignment. The court may also refer
the case to the branch clerk of court for preliminary conference at least 3 days
before the pre-trial conference (Sec. 1, Rule 16, AM No. 09-6-8-SC).
2. Purposes of pre-trial
a. To assist the parties in reaching a settlement of the civil aspect of the
case;
b. To mark the documents to be presented as exhibits;
c. To attach copies thereof to the records after comparison with the

originals;
d. To ascertain from the parties the undisputed facts and admissions on the
genuineness and due execution of documents marked as exhibits;
e. To consider such other matters as may aid in the prompt disposition of
the case;
f. To record the proceedings during the preliminary conference in the
Minutes of Preliminary Conference to be signed by the parties and counsel;
g. To mark the affidavits of witnesses which shall be in question and answer
form and shall constitute the direct examination of the witnesses; and
h. To attach the Minutes and marked exhibits to the case record before the
pre-trial proper (Sec. 2, Rule 16, AM No. 09-6-8-SC).
3. DUTY OF THE COURT DURING PRE-TRIAL
a. Place the parties and their counsels under oath;
b, Adopt the minutes of the preliminary conference as part of the pre-trial
proceedings, confirm markings of exhibits or substituted photocopies and
admissions on the genuineness and due execution of documents, and list object
and testimonial evidence;
c. Scrutinize the information and the statements in the affidavits and other
documents which form part of the record of the preliminary investigation together
with other documents identified and marked as exhibits to determine further
admissions of facts as to:
i. The court’s territorial jurisdiction relative to the offense(s) charged;
ii. Qualification of expert witnesses; and
iii. Amount of damages;
d. Define factual and legal issues;
e. Ask parties to agree on the specific trial dates and adhere to the flow chart
determined by the court which shall contain the time frames for the different
stages of the proceeding up to promulgation of decision;
f. Require the parties to submit to the branch clerk of court the names,
addresses and contact numbers of witnesses that need to be summoned by
subpoena; and
g. Consider modification of order of trial if the accused admits the charge
but interposes a lawful defense (Sec. 13, Rule 16, AM No. 09-6-8-SC).
4. MANNER OF QUESTIONING
*****All questions or statements must be directed to the court (Sec. 14,
Rule 16, AM No. 09-6-8-SC).
5. AGREEMENT OR ADMISSIONS
All agreements and admission made or entered during the pre-trial
conference shall be *****reduced into writing and signed by the accused and
counsel; otherwise, they cannot be used against the accused (Sec. 5, Rule 16, AM
No. 09-6-8-SC).
The agreements covering the matters referred to in Sec. 1, Rule 118 of the
Rules of Court shall be approved by the court (Ibid.).

6. RECORD OF PROCEEDINGS
All proceedings during the pre-trial shall be recorded, the transcripts
prepared and the minutes signed by the parties or their counsels (Sec. 6, Rule 16,
AM No. 09-6-8-SC).
7. CONTENTS of the pre-trial order: Within 10 days after termination of the
pre-trial, the court shall issue a pre-trial order containing:
a. The actions taken during the pre-trial conference;
b. The facts stipulated;
c. The admissions made;
d. Evidence marked;
e. Number of witnesses to be presented; and
f. Schedule of trial (Sec. 7, Rule 16, AM No. 09-6-8-SC).
10.4.9. Subsidiary liabilities

1. *****Under Art. 102 and 103 of the RPC, liability may be enforced the person
or corporation SUBSIDIARILY liable upon motion of the person entitled to
recover such award in case of conviction of the accused (Sec. 1, Rule 18, AM No.
09-6-8-SC).
2. This provision codifies the ratio decidendi in Philippine Rabbit Bus Lines
v. Court of Appeals (G.R. No. 147703, April 14, 2004) and applies the
principle therein to environmental criminal cases, to facilitate recovery of
damages and other reliefs from persons subsidiarily liable *****in the event of
INSOLVENCY of the accused. The phrase “person entitled to recover” was
employed in this provision to indicate that other parties apart from the
prevailing party may be entitled to recover (Annotation to the Rules of
Procedure for Environmental Cases).
——————————————————
10.5. Evidence
10.5.1. Precautionary principle380

1. The court in upholding the constitutional right of the people to a balanced and
healthful ecology shall give the evidence presented the *****benefit of the doubt
even when there is a LACK OF FULL SCIENTIFIC CERTAINTY in
establishing a causal link between human activity and the environmental
effect (Sec. 1, Rule 20, AM No. 09-6-8-SC).
380Q: What do you understand about the "precautionary principle" under the Rules of Procedure for
Environmental Cases? (2012 BAR)
A: ******Precautionary principle states that when human activities may lead to threats of serious
and irreversible damage to the environment that is scientifically plausible but uncertain, actions shall be
taken to avoid or diminish that threat. In its essence, the precautionary principle calls for the exercise of
caution in the face of risk and uncertainty (Sec. 4 [f], Rule 1, Part 1, and Rule 20, A.M. NO. 09-6-8-SC, Rules
****For purposes of evidence, the precautionary principle should be treated

as a PRINCIPLE OF LAST RESORT, where application of the regular Rules
of Evidence would cause in an inequitable result for the environmental
plaintiff (Annotation to the Rules of Procedure for Environmental Cases).
2. *****Factors to consider in applying the precautionary principle
a. Threats to human life or health;
b. Inequity to present or future generations; or
c. Prejudice to the environment without legal consideration of the
environmental rights of those affected (Sec. 2, Rule 20, AM No. 09-6-8-SC).
10.5.2. Documentary evidence

1. Admissibility of photographs, videos and other similar evidence
*****Photographs, videos and similar evidence of events, acts, transactions
of wildlife, wildlife by-products or derivatives, forest products or mineral
resources subject of a case shall be ADMISSIBLE when authenticated
a. by the person who took the same,
b. by some other person present when said evidence was taken, or
c. by any other person competent to testify on the accuracy thereof (Sec.
1, Rule 21, AM No. 09-6-8-SC).
2. ENTRIES IN OFFICIAL RECORDS
Entries in official records made in the performance of his duty by a
public officer of the Philippines, or by a person in performance of a duty
specially enjoined by law, are PRIMAFACIE EVIDENCE of the facts
therein stated (Sec. 2, Rule 21, AM No. 09-6-8-SC).
These provisions SUPPLEMENT the main Rules on Evidence, which
have ****FULL APPLICABILITY to environmental cases. (Annotation to the
Rules of Procedure for Environmental Cases).
————————————————————————————————
REFERENCES
1. UST Notes:381 GN, case lists, Bar Q&A’s, lectures of Dean Riano.
2. Contributions of Lau & Kyle (esp. KPL)
381 These notes were culled mainly from notes (GN), lectures, outlines, case summaries, etc. provided to students
at the UST Faculty of Civil Law, plus researches and updates by those who write them in and contribute to their
present form. Errors are to be attributed to the main author and he is asking you to send him whatever you
think needs to be corrected at tomlawnotes@gmail.com. Aside from that, all he requests from you is prayers
for him, his family and friends. Yes, seriously, if you are happy with these notes, please send him prayers,
generous prayers, if possible. His favorite prayer is the Holy Mass, and oh, Rosaries :)

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Sancte Michael, defende nos in proelio!

TOM Bar Reviewer in Remedial Law II

IV. Special Proceedings 2

IV. Special Proceedings

4.1. Writ of habeas corpus 2

ON THE WRIT OF AMPARO 34

4.15.10. Quantum of proof in application for issuance of writ of amparo 52

4.1. Writ of habeas corpus

ON THE WRIT OF HABEAS CORPUS

SCOPE OF THE WRIT

WHC & THE CONSTITUTION

Nature of the petition

GROUNDS FOR THE ISSUANCE OF WRIT OF HABEAS CORPUS

2. The court has no jurisdiction9 to impose the sentence;

5. Denial of right to a speedy trial (since it is jurisdictional);

Who may grant the writ

PROCEDURE FOR GRANT OF WRIT

WHO ISSUES THE WRIT?

To whom writ is directed

How service is made

How writ is executed and returned

a. Before the judge who allowed the writ; or

4.13.1. Contents of the petition

4.13.2. Contents of the return

Return to be signed and sworn to

allegations on the return are deemed to be true or admitted (Florendo v.

4.13.3. Distinguish peremptory writ from preliminary citation

*****In a habeas corpus petition, the order to present an individual

4.13.4. When not proper/applicable

In cases of Illegal Confinement or Detention

4.13.5. When writ disallowed/discharged

of an information (Velasco v. CA, G.R. No. 118844, July 7, 1995);

PERSON DISCHARGED NOT TO BE AGAIN IMPRISONED

court of competent jurisdiction has absolved him of the offense? NO.

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

Descript WRIT directed to REMEDY available to REMEDY Special

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

Docket Payment is *****Petitioner is Payment is *****Petitioner

Person Officer by whom Respondent Respondent Respondent

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

Return If granted by the SC If issued by RTC: If issued by RTC: If issued by SC,

Liability Forfeit to the Imprisonment or fine for Imprisonment or Indirect

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

Instituti This Rule shall not Same as Writ of

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

EFFEC When a criminal action has Same as Writ of

CONSO When a criminal action is Same as Writ of

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

Prohibit None***** 1. Motion to dismiss; 2. 1. Motion to

Bar areas related to this table:*******

files or government offices.27

4.13.7. Rules on Custody of Minors and Writ of Habeas Corpus in

WHO MAY FILE a petition for custody of minor

province or city where

Contents of the verified petition

Provisional order awarding custody

the grandparent chosen is unfit or disqualified;

SOME TECHNICAL MATTERS

POSSIBLE SCENARIOS ON THE SECOND FORM OF HABEAS

Docket Payment is Petitioner is Payment is Petitioner