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Continuing detention

In a situation where the respondent in a criminal case is under an inquest proceeding and the
inquest prosecutor dismisses the criminal complaint for lack of probable cause, may the
detention of the respondent be continued on the ground that the complainant has filed a motion
for reconsideration before the Office of the Prosecutor or a petition for review before the
Department of Justice or on the ground that the case is subject to automatic review pursuant to a
department order of the Secretary of Justice?

This is the main legal and procedural issue in the controversial case of the Alabang Boys which
is now raging in the Philippine mass media.

When a respondent is arrested under Rule 13 (valid warrantless arrest), he is immediately
subjected to an inquest proceeding (that is, within 36 hours at the most, counted from the arrest
of the respondent, if he does not waive his right against illegal detention under Article 125 of the
Revised Penal Code).

If the inquest prosecutor is satisfied with the proofs of probable cause submitted by the
complainant and the arresting police officers, he will file the appropriate information in court,
subject to review and approval by the chief city or provincial prosecutor, within the maximum
period allowed by Article 125.

If the respondent waives his Article 125 rights, he continues to be detained and the criminal case
is subjected to regular preliminary investigation, which must be completed by the investigating
prosecutor within 15 days (from the expiration of the maximum time allowed by Article 125). In
a regular preliminary investigation, the respondent may file his counter-affidavit, the affidavits of
his witnesses, and his supporting evidence.

If the investigating prosecutor dismisses the complaint for lack of probable cause, and the
complainant or the arresting police officers file a motion for reconsideration/reinvestigation or
appeal the dismissal via petition for review to the Department of Justice or if the resolution is
subjected to automatic review by the Secretary of Justice pursuant to a department order, should
the respondent be released pending such proceedings to avoid a violation of Article 125?

I believe so. The respondent must be released pending such proceedings.

The spirit of Article 125 of the Revised Penal Code and the Rules of Criminal Procedure favors
the theory that the respondent, in the above scenario, must be immediately released. Otherwise,
his continuing detention would stifle his constitutional and human rights to due process of law,
equal protection of the law, and presumption of innocence, as enshrined in Article III of the 1987
Constitution.

A DOJ department order imposing the procedure of automatic review for big and controversial
criminal cases may be allowed because it is discretionary on the part of the Secretary of Justice,
he being in control of the national prosecution arm of the State, but he must release a respondent
from detention when the investigating prosecutor, with the approval of the chief city or
provincial prosecutor, has dismissed a case for lack of probable cause, notwithstanding the
pendency of appellate proceedings before the DOJ. Otherwise, there is sufficient basis to initiate
a criminal complaint against the guilty DOJ and police officials for violation of Article 125 of
the Revised Penal Code.


Holes in DOJ
(excerpts from the editorial)
Jan. 8, 2009
Philippine Daily Inquirer


THE JURY IS STILL OUT ON THE CASE OF THE alleged bribery involving the Alabang
Boys, but already it seems clear that the Department of Justice has some housekeeping to do.

X x x.

It was, of course, no such thing. Chief State Prosecutor Jovencio Zuo, who signed the original
DOJ resolution on Dec. 2 already incorporating the release order for the three young men, called
Veranos maneuver not normal. Verano himself explained it in terms anyone dealing with a
corrupt organization would find familiar: I am just facilitating the order. Maybe I was a little bit
overzealous.

X x x.

The justice department also seems to have tolerated a culture of confusion. The answers of DOJ
lawyers to questions raised at the House committee hearings about the procedures involved in the
release of suspected illegal drug users and pushers have been less than illuminating. Under the
Manual Prosecutors, the chief state prosecutor has the authority to conclude the resolution of a
case. Gonzalez, however, had issued a department order requiring his personal approval of the
resolution of important cases, especially those involving drugs and smuggling cases. In
Gonzalezs own words: If it is a drug or smuggling case, if the punishment is more than five
years, and you dismiss a case of that nature, you must get my imprimatur.

Under questioning, however, state prosecutors like John Resado described a work culture where
the justice secretarys circular providing for automatic review was either honored in the breach
or interpreted laxly.

This confusing state of affairs allows a state prosecutor to act on the assumption that a resolution
signed by the chief state prosecutor is effective immediately even while it is pending automatic
review.

None of this is to say that the Philippine Drug Enforcement Agencys performance is flawless,
and that therefore every single arrest it makes must end in conviction. But the many loopholes in
DOJ processes help explain why the burden of responsibility, in this high-profile case, rests
largely on the Department of Justice.