SECTION 13
confined in a hospital communicated his
ALL PERSONS, EXCEPT THOSE CHARGED
WITH OFFENSES PUNISHABLE BY
RECLUSION PERPETUA WHEN EVIDENCE
GUILT IS STRONG, SHALL, BEFORE
CONVICTION, BE BAILABLE BY SUFFICIENT
SURETIES, OR BE RELEASED ON
RECOGNIZANCE AS MAY BE PROVIDED BY
LAW. –
THE WRIT OF HABEAS CORPUS IS
SUSPENDED. EXCESSIVE BAIL SHALL NOT BE
REQUIRED.
Q. What is bail?
A. Bail is mode short of confinement which
would, with reasonable certainty, insure
the aQendance of the accused at his trial. It
usually takes the form of a deposit of
money or its equivalent as guarantee of
such aQendance and which deposit is
forWfied upon failure to appear.
Q. Why is bail awarded to the accused?
A. (1) “to honor the presumpWon of
innocence unWl his guilt is proven beyond
reasonable doubt”; and (2) “to enable him
to prepare his defense without being
subject to punishment prior to convicWon.”
Cortes v. Catral, A.M. No. RTJ-97-1387,
September 10, 1997, 279 SCRA 1, 10 (ciWng
Stack v. Boyle, 342 U.S. 1, 96 L Ed 3, 72 S Ct
1; Dudley v. US, 242 F2d 656).
Q. Who have a consWtuWonal right to bail?
A. All person actually detained, except
those charged with offenses punishable by
reclusion perpetua or death when
evidence of guilt is strong, shall, before
convicWon, be bailable by sufficient
sureWes.
One is under the custody of the law
either when he has been arrested or has
surrendered himself to the jurisdicWon of
the court, as in the case where through
counsel peWWoner for bail who was
submission to the jurisdicWon of the court.
Paderanga v. Court of Appeals, G.R. No.
115407, August 28, 1995.
Q. Does a soldier under court marital
enjoy the right to bail?
A. No. because of the disciplinary
structure of the military and because
soldiers are allowed the fiduciary right to
bear arms and can therefore cause great
havoc, tradiWon has recognized the non-
existence of the right to bail. Nor can
appeal be made to the equal protecWon
clause because equal protecWon applies
only to those who are equally situated.
Comendador, et al. v. de Villa, G.R. No.
93177, August 2, 1991.
Q. Charged with rebellion, a bailable
offense, Salas nevertheless agreed “to
remain in legal custody during the
pendency of the trial of his criminal case.”
Does he have the right to bail?
A. No. by his act he has waived his
right. People v. Donato, G.R. No. 79269,
June 5, 1991.
QUERY:
(Assuming valid waiver, may he not take it
back?)
Q. When is there no consWtuWonal
right to bail?
A. When the following condiWons
concur: (1) the accused is charged with an
offense punishable by reclusion Perpetua;
(2) the evidence against him is string.
Magno v. Abbas, 13 SCRA 233 (1965).
Moreover, aoer convicWon for any offense,
bail is discreWonary while the case is on
appeal.
Q. Does a person lose his
consWtuWonal right to bail upon the filing of
a reclusion Perpetua case against him?
A. No. since the loss of the right
depends upon the quantum of evidence
against him, the loss of the right can be
determined only aoer hearing. Marcos v.
Cruz, 67 Phil. 83 (1939).
Q. What are the duWes of the trial
judge in case an applicaWon for bail is filed
by an accused charged with a capital
offense?
A. “(1) NoWfy the prosecutor of the hearing
of the applicaWon for bail or require him to
submit his recommendaWon (SecWon 18,
Rule 114 of the Rules of Court as
amended);
(2) Conduct a hearing of the applicaWon for
bail regardless of whether or not the
prosecuWon 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 discreWon (SecWons 7
and 8, supra);
(3) Decide whether the evidence of guilt of
the accused is strong based on the
summary of evidence of the prosecuWon
(Baylon v. Sison, 243 SCRA 284 [1995]);
(4) If the guilt of the accused is not strong,
discharge the accused upon the approval
of the bail bond. (SecWon 19, supra).
Otherwise, peWWon should be denied.”
Basco v. Rapatalo, A.M. No. RTJ-96-1335,
March 5, 1997, 269 SCRA 220, 243-244.
Q. Describe further what should be done in
capital cases.
A. If the accused is charge with a capital
offense, a hearing, mandatory in nature
and which should be summary or
otherwise in the discreWon of the court, is
required with the parWcipaWon of both the
defense and a duly noWfied representaWve
of the prosecuWon, this Wme to ascertain
whether or not the evidence of guilt is
strong. The burden of proof is on the
prosecuWon to show that the evidence
meets the required quantum. The
prosecuWon must be given an opportunity
to present, within a reasonable Wme, all the
evidence that it may want to introduce
before the court may resolve the
applicaWon, since it is equally enWtled as
the accused to due process. Likewise, the
peWWoner has the right to cross-examine
the witnesses and present his own
evidence in rebuQal. When, eventually,
the court issues an order either granWng or
refusing bail, the same should contain a
summary of the evidence for the
prosecuWon, followed by its conclusion as
to whether or not the evidence of guilt is
strong. The court, though, cannot rely on
mere affidavits or recitals of their contents,
if Wmely objected to, for these represent
only hearsay evidence, and thus are
insufficient to establish the quantum of
evidence that the law requires. Marzan-
Gelacio v. Flores, A.M. No. RTJ-99-1488,
June 20, 2000.
Q. What is the meaning of strong evidence
of guilt for purposes of denying bail?
A. This means “proof evident” or
“presumpWon great”. “Proof evident” or
“Evident proof” in this connecWon means
clear, strong evidence which leads a well-
guarded dispassionate judgement to the
conclusion that the offense has been
commiQed as charged, that accused is the
guilty agent, and that he will probably be
punished capitally if the law is
administered. “PresumpWon great” exists
when the circumstances tesWfied to are
such that the inference of guilt naturally to
be drawn therefrom is strong, clear, and
convincing to an unbiased judgment and
excludes all reasonable probability of any
other conclusion. Even though there is a
reasonable doubt as to the guilt of accused,
if no an examinaWon of the enWre record
the presumpWon is great that accused is
guilty of a capital offense, bail should be
refused. In other words, the test is not
whether the evidence establishes guilt
beyond reasonable doubt but rather
whether it shows evident guilt or great
presumpWon of guilt. As such, the court is
ministerially bound to decide which decide
which circumstances and factors are
present which would show evident guilt or
presumpWon as defined above. People v.
Judge Cabral, G.R. No. 131909, February
18, 1999.
Q. What is the duty of the judge if the
prosecuWon does not present evidence?
A. Even where the prosecutor refuses to
adduce evidence in opposiWon to the
applicaWon to grant and fix bail, the court
may ask the prosecuWon such quesWons as
would ascertain the strength of the state’s
evidence or judge the adequacy of the
amount of bail. TolenWno v. Judge
Camanao, Jr., A.M. No. RTJ-00-1522,
January 20, 2000.
Q. Respondents Judge ordered the
peWWoner’s arrest for Estafa with no
recommendaWon for bail. Valid?
A. No. “The rule is clear that unless
charged with offenses punishable by
reclusion Perpetua and the evidence of
guilt is strong, all persons detained,
arrested or otherwise under the custody of
the law are enWtled to bail as a maQer of
right”.
Estafa is “undoubtedly a bailable offense”,
Parada v. Veneracion, A.M. No. RTJ-96-
1353, March 11, 1997, 269 SCRA 371, 378.
Q. May a judge require a strictly cash bond
and disallow peWWoner’s aQempt to post a
surety bond for his provisional liberty?
A. No. such a requirement is abhorrent to
the nature of bail. The sole purpose of bail
is to insure the aQendance of the accused.
It has neither puniWve nor revenue raising
purpose. Cash bond is allowed in this
jurisdicWon only because our rules
expressly allow it. Where this not the case,
cash bond could not be countenanced
because the nature of bail presupposes the
aQendance of sureWes to whom the body
of the prisoner can be delivered. Moreover,
the burden imposed by requiring a cash
bond ca make the bail consWtuWonally
“excessive”. Almeda v. Villaluz, 66 SCRA 38
(August 6, 1975).
Q. Are “life imprisonment” and “reclusion
perpetua” the same?
A. A disWncWon must be made between the
penalty of “life imprisonment” and
“reclusion Perpetua”.
(1) Life imprisonment is a penalty is
special laws while reclusion
Perpetua is imposed by the Revised
Penal Code; --
(2) life imprisonment does not carry
accessory penalWes, whereas
reclusion Perpetua does; --
(3) life imprisonment is indefinite,
whereas reclusion Perpetua is for
30 years aoer which the convict is
eligible for pardon. The disWncWon
is important because under the
1985 Rules on Criminal Procedure a
person charged with an offense
punishable by “life imprisonment”
was enWtled to bail as a maQer of
right. However, effecWve October 1,
1994, Rule 114 was amended
placing “life imprisonment” on the
same level as death and reclusion
Perpetua. Cardines v. Rosete, 242
SCRA 557, 562 (1995).
Q. For purpose of the right to bail, what is
the criterion for determining whether the
offense is bailable or not?
A. “The criterion to determine whether the
offense charged is capital is the penalty
provided by the law regardless of the
aQendant circumstances”. To require more
will entail consideraWon not only of
evidence showing commission of the crime
but also evidence of the aggravaWng and
miWgaWng circumstances. In effect, this
would already be requiring a complete trial
thus defeaWng the purpose of bail, which is
to enWtle the accused to provisional liberty
pending trial. People v. Intermediate
Appellate Court, 147 SCRA 219 (1987).
Q. May a person who does not have a
consWtuWonal right to bail be released on
bail?
A. Yes. The maQer is discreWonary
with the court for good and valid reasons,
unless there is a statutory prohibiWon
against it.
Q. What are the implicit limitaWons on the
right to bail?
A. (1) The person claiming the right must be
under actual detenWon. Mendoza v. CFI, 51
SCRA 369 (1973).
(2) The consWtuWonal right is available only
in criminal cases, not, e.g., in deportaWon
proceedings.
Q. Is there a right to bail in extradiWon
cases?
A. ExtradiWon is not a criminal
proceeding. Hence, since bail is available
only in criminal proceedings, a respondent
in an extradiWon proceeding is not enWtled
to bail. He should apply for bail in the court
where he will be tried. United States v.
Judge Puruganan, G.R. no. 148571,
September 24, 2002.
Q. Aside from release through bail, through
what other means may an accused obtain
provisional liberty?
A. Through recognizance, as may be
provided by law. That is, the law will
determine when recognizance is an
adequate subsWtute for bail. The new
ConsWtuWon has made release on
recognizance, as provide by law, available
on the same terms as released on bail.
Q. What is recognizance?
A. It is an obligaWon of record entered into
before a court guaranteeing the
appearance of the accused for trial. It is in
the nature of a contract between the
surety and the state. People v. Abner, 87
Phil 569.
Q. Is the right to bail suspended when the
privilege of the writ of habeas corpus is
suspended?
A. The new ConsWtuWon, contrary to past
jurisprudence, e.g., Garcia-Padilla v. Enrile,
G.R. Nos. 60349-62, December 29, 1983,
now says that the right to bail is not
thereby suspended.
Q. Why does the ConsWtuWon prohibit
excessive bail?
A. Obviously, the requirement of excessive
bail can amount to a denial of bail. Thus, a
bail foxed by a lower court at P1,195,
200.00 was found to render the right
nugatory. De la Camara v. Enage, 41 SCRA 1
(1971). Similarly, a bail bod of P18,000 for
an offense punishable with prison mayor or
a fine of P5,000 t P10,000 or both was
found excessive.
NOTE:
The Court has had occasion to recall
the factors which must be considered in
determining bail; (1) ability to post bail; (2)
nature of the offense; (3) penalty imposed
by law; (4) character and reputaWon of the
accused; (5) health of accused; (6) strength
if the evidence;
(7) probability of appearing for trial; (8)
forfeiture of bonds; (9) whether accused
was a fugiWve from jusWce when arrested;
(10) If under bond in other cases, Sunga v.
Judge Salud, 109 SCRA 253 (November 19,
1981), ciWng Abano v. Villaseñor, 21 SCRA
312 (September 29, 1967).
Q. Does a person admiQed to bail
necessarily have the right to leave the
Philippines?
A. No. A court, as a necessary consequence
of the nature of a bail bond, may prevent a
person admiQed to bail from leaving the
country. A bail bond is intended to make a
person available any Wne he is needed by
the court. Manotoc, Jr., v. Court of Appeals,
142 SCRA 149, 153-154 (1986).
A. No. A court, as a necessary consequence
of the nature of a bail bond, may prevent a
person admiQed to bail from leaving the
country. A bail bond is intended to make a
person available any Wne he is needed by
the court. Manotoc, Jr., v. Court of Appeals,
142 SCRA 149, 153-154 (1986).
Sec-on 14
1) NO PERSON SHALL BE HELD TO
ANSWER FOR A CRIMINAL OFFENSE
WITHOUT DUE PROCESS OF LAW.
2) IN ALL CRIMINAL PROSECUTIONS,
THE ACCUSED SHALL BE PRESUMED
INNOCENT UNTIL THE CONTRARY IS
PROVED, AND SHALL ENJOY THE
RIGHT TO BE HEARD BY HIMSELF
AND COUNSEL, TO BE INFORMED
OD THE NATURE AND CAUSE OF
THE ACCUSATION AGAINST HIM, TO
HAVE A SPEEDY, IMPARTIAL, AND
PUBLIC TRIAL, TO MEET THE
WITNESSES FACE TO FACE, AND TO
HAVE COMPULSORY PROCESS TO
SECURE THE ATTENDANCE OF
WITNESSES AND THE PRODUCTION
OF EVIDENCE IN HIS BEHALF.
HOWEVER, 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.
Due process in criminal cases
Q. Explain the requirement of due process
in criminal cases.
A. The requirement that no person shall be
held to answer for a criminal offense
without “due process of law” simply
requires that the procedure established by
law be followed. If that procedure fully
protects life, liberty and property of the
ciWzens in the State, then it will be held to
be due process of the law. U.S. v. Ocampo,
18 Phil. 1 (1910). Due process is saWsfied if
the accused is “informed as to why he is
proceeded against and what charge he has
to meet, with his convicWon being made to
rest on evidence that is not tainted with
falsity aoer full opportunity for him for
rebutng it and the sentence being
imposed in accordance with law. It is
assumed, of course, that the court that
rendered the decision is one of competent
jurisdicWon”. Nuñez v. Sandiganbayan, 111
SCRA 433 (January 30, 1982).
Q. May a judge who replaces another judge
validly render a decision although he has
only partly heard the tesWmony of
witnesses?
A. Yes. “This rule is routed in pracWcal
consideraWons. SomeWmes it is an
impossibility for the judge who tried the
case to be the same judicial officer to
decide it. The judge who tried the case may
die, resign or reWre from the bench,
before he could render judgment
thereon. We find no legal impediment to
his successor’s conWnuing with the trial has
been terminated. It is sufficient that in such
circumstances the judge, in deciding the
case, must base it completely on the
cold record before him, in the same
manner as appellate courts when they
review the evidence of the case raised to
them on appeal”. People v. Narajos, 149
SCRA 99, 105 (1987). QuoWng from
Villanueva v. Estenzo, 64 SCRA 407.
Q. Batas Pambansa Bldg. 22, a penal law,
was published in the April 9, 1979 issues of
the Official GazeQe which however, was
officially released for circulaWon only on
June 14, 1979. May acts commiQed prior to
June 14, 1979, be prosecuted under Batas
Pambansa Bldg. 22?
A. No. The penal statute was made public
only on June 14, 1979. Prior to such date
the prohibiWon of the law did not exist.
People v. Veridiano, 132 SCRA 523 (October
12, 1984).
Q. May criminal penalWes be imposed by
administraWve agencies?
A. Since administraWve agencies are not
bound to follow the rules of criminal
procedure, they may not impose criminal
penalWes. Scoty’s Department Store v.
Micaller, 99 Phil. 762 (1956).
Q. When dies publicity prejudice due
process?
A. The rule is that “to warrant a finding of
prejudicial publicity there must be
allegaWon and proof that the judges have
been unduly influenced, not simply that
they might be, by the barrage of publicity”.
“PeWWoners cannot just rely on the
subliminal effects of publicity… because
these are basically unbeknown and beyond
knowing”. Webb v. de Leon, G.R. No.
121234, August 23, 1995, See also People
v. Teehankee, Jr., G.R. Nos. 111206-08,
October 6, 1995.
Military tribunals
Q. May the Supreme Court review
decisions of military tribunals?
A. Generally, the Supreme Court has no
supervisory authority over military courts.
Kuroda v. Jalandoni, 83 Phil. 171; Martelino
v. Alejandri, 32 SCRA 106 (March 25, 1970).
By the NaWonal Security Code, P.D. no.
1498, June 11, 1978 (74 O.G. 11066), the SC
does not review decisions of military
commissions but of the Court of Military
Appeals in cases appealed to the laQer by
military commissions. Therefore, the issue
of denial of the right to present evidence
should first be passed upon by military
authoriWes. Buscayno & Sison v. Military
Commissions, 109 SCRA 273 (November
19, 1981). But see dissents of Fernando
and Teehankee and ArWcle VIII, SecWon 1.
Q. May military commissions or tribunals
have jurisdicWon to try civilians for offenses
allegedly commiQed during marWal law
when civil courts were open and
funcWoning?
A. No. Civilians are enWtled to judicial
process. Judicial power is vested by the
ConsWtuWon in the judiciary. Military
tribunals belong to the ExecuWve
Department. (pp. 158-159) The rule is that
“a military commission or tribunal cannot
try and exercise jurisdicWon, even during
the period of marWal law, over civilians for
offenses allegedly commiQed any
judgment rendered by such body relaWng
to a civilian is null and void for lack of
jurisdicWon on the part of the military
tribunal concerned”. Olaguer v. Military
Commission No. 34, 150 SCRA 144 (1987),
explicitly reversing Aquino, Jr., v. Military
Commission No. 2, 63 SCRA 264 (1975) and
all decided cases affirming the same.

Q. Where proceedings in a military court
are commenced while respondent is a
member of the military, does the military
court lose jurisdicWon when the subject is
dropped from the rolls of the military?
A. No. JurisdicWon once acquired is
not lost upon the instance of the parWes
but conWnues unWl the case is terminated.
Abadilla v. Ramos, 156 SCRA 92 (December
1, 1987).
Q. The rule is that jurisdicWon over a person
is acquired only upon arrest. Does this
apply to military jurisdicWon?
A. No. This is a rule for ordinary courts. See
ArWcle of War 2 and SecWon 8 of Manual for
Courts MarWal, AFP. Abadilla v. Ramos, 156
SCRA 92 (December 1, 1987). [The
reasoning here is unconvincing].
Presump-on of innocence
Q. What is the principal effect of the
guarantee of presumpWon of innocence?
A. Its principal effect is that no person shall
be convicted unless the prosecuWon has
proved him guilty beyond reasonable
doubt.
A. Its principal effect is that no person shall
be convicted unless the prosecuWon has
proved him guilty beyond reasonable
doubt.
Q. The Return to Work Agreement
specified express finding of innocence in a
criminal case as ground for reinstatement.
The criminal case against peWWoner,
however, was dismissed on the technicality
of failure of witnesses to appear at the trial.
Is trial reinstatement on order?
A. Yes. Innocence does not have to be
declared. It is presumed. Moreover, the
mandate for protecWon for labor compels
interpretaWon of agreement in favor of
labor. CasWllo v. Filtex InternaWonal Corp.,
G.R. No. L-37788, September 30, 1983.
Q. For purposes of disqualificaWon in an
elecWon, secWon 4 of Batas Pambansa Bldg.
52 says: “the filing of charges for the
commission of such crimes before a civil
court of military tribunal aoer preliminary
invesWgaWon shall be prima facie evidence
of such fact [disqualificaWon]”. Valid?
A. No. this violates the guarantee of
presumpWon of innocence. Although filing
of charges in only prima facie evidence and
may be rebuQed, the proximity of elecWons
and consequent risk of not having Wme to
rebut the prima facie evidence already in
effect make him suffer as though guilty
even before trial. Dumlao v. COMELEC, G.R.
No. 52245, January 22, 1980.
Q. SecWon 40 of the Local Government
Code disqualifies from running for office a
“(e) FugiWve from jusWce in criminal or non-
poliWcal cases here or abroad”. If applied to
one who has not yet been convicted of any
offense but was merely fleeing from trial,
would there be violaWon of the
presumpWon of innocence?
A. This was defended against the
suggesWon that it violates presumpWon of
innocence on the argument that the
disqualificaWon is not a penalty and that
Congress is allowed to prescribe
reasonable qualificaWons for local
candidates both by ArWcle V, SecWon 1
and ArWcle X, SecWon 3. Marquez, Jr., v.
Commission on ElecWons, G.R. No. 112889,
April 18, 1995. (But the Court remanded
the case to the lower court for
determinaWon of the fact of being a
“fugiWve from jusWce”).
QUERY:
Considering prevenWon the importance of
the right of suffrage, however, the
disqualificaWon smack of a bill aQainder.
Q. Does prevenWve suspension pendente
lite violate the right to be presumed
innocent?
A. No. because prevenWve suspension is
not a penalty. Gonzaga v. Sandiganbayan,
G.R. No. 96131, September 6, 1991.
Q. Does presumpWon of innocence
preclude the State from shioing the burden
of proof to the accused?
A. The State having the right to declare
what acts are criminal, within certain well
defined limitaWons, has a right to specify
what act or acts shall consWtute a crime, as
well as what proof shall consWtute prima
facie evidence of guilt, and then to put
upon the defendant the burden of showing
that such act or acts are innocent and are
not commiQed with any criminal intent or
intenWon. U.S. v. Luling, 34 Phil. 725 (1916).
Q. ArWcle 217 of the Revised Penal Code
says that failure of an accountable officer
to produce money in his charge upon
demand shall be prima facie evidence of
malversaWon. Does such law violate
presumpWon of innocence?
A. Clearly, the fact presumed is but a
natural inference from the fact proved
[failure to produce], so that it cannot be
said that there is no raWonal connecWon
between the two. Furthermore, the statute
establishes only a prima facie presumpWon,
thus giving the accused an opportunity to
present evidence to rebut it. People v.
Mingoa, 92 Phil. 857, 859 (1953); Albores v.
Court of Appeals, 132 SCRA 604 (October
23, 1984).
Q. ArWcle 315, paragraph 2(d) of the RPC
prescribes a period of three days from
noWce within which the issuer of the check
must pay the creditor, otherwise, a prima
facie inference of deceit consWtuWng false
pretense of fraudulent act will raise. Does
this offend against the consWtuWonal
presumpWon of innocence?
A. No. “There is… no consWtuWonal
objecWon to a law providing that the
presumpWon of innocence may be
overcome by a contrary presumpWon
founded upon the experience of human
conduct, and enacWng what evidence shall
be sufficient to overcome such
presumpWon of innocence. The legislature
may provide for prima facie evidence of
guilt of the accused and shio the burden of
proof provided there be a raWonal
connecWon between the facts provided
and the ulWmate fact presumed so that the
inference of the one from proof of the
others is not unreasonable and arbitrary
because of lack of connecWon between the
two in common experience”. (CiWng People
v. Mingoa, 92 Phil. 856; Banares v. Court of
Appeals, G.R. No. 55992, 14 February
1991).
Right to be heard
Q. What are the elements of the general
right to be heard?
A. It includes: (1) to be present at the trial;
(2) the right to counsel; (3) the right to an
imparWal judge; (4) the right of
confrontaWon; (5) the right to compulsory
process to secure the aQendance of
witnesses.
Q. What is the scope of the right to be
present at the trial?
A. It covers only the period from
arraignment to promulgaWon of sentence.
U.S. v. Beecham, 23 Phil. 259 (1972).
However, this has been modified by
SecWon 14(2) which says that “aoer
arraignment, trial may proceed
notwithstanding the absence of the
accused provided that he has been duly
noWfied and his failure to appear is
unjusWfiable.
Q. What are the condiWons for waiver of
the right to be present at the trial?
A. The right may be waived “provided that
aoer arraignment he may be compelled to
appear for the purpose of idenWficaWon by
the witnesses of the prosecuWon, or
provided he unqualifiedly admits is open
court aoer his arraignment that he is the
person named as the defendant in the case
on trial. Reason for requiring the presence
of the accused, despite his waiver, is, if
allowed to be absent in all the stages of the
proceeding without giving the People’s
witnesses the opportunity to idenWfy him
in court, he may in his defense say that he
was never idenWfied as the person charged
in the informaWon and, therefore, is
enWtled to acquiQal”. People v. Presiding
Judge, G.R. L-64731, October 26, 1983;
Aquino, Jr., v. Military Commission No. 2, L-
37364, April 24, 1975.
Q. When an accused waives his appearance
in further proceedings and says that “he
may be idenWfied by witnesses even in his
absence”, may he sWll be compelled to
appear for purpose of idenWficaWon?
A. Yes. In order for him to be excused
completely from appearance it is not
enough that he allows himself to be
idenWfied by witnesses in his absence. He
must further unqualifiedly admit that every
Wme a witness menWons a name by which
he is known the witness is to be
understood as referring to him. Carredo v.
People, G.R. No. 77542, March 19, 1990,
ciWng People v. Presiding Judge, 125 SCRA
269 (1983).
Q. What are the requisites of a valid trial in
absenWa?
A. “(1) the accused has already been
arraigned; (2) he has been duly noWfied of
the trial; and (3) his failure to appear is
unjusWfiable”. Parada v. Veneracion, A.M.
No. RTJ-96-1353, March 11, 1997, 269
SCRA 371, 376 (ciWng People v. Salas, 143
SCRA 163 [1986]).
Q. Does the provision on trial in absenWa
preclude forfeiture of bail bond under the
Rules of Court for one who jumps bail?
A. No, the new provision “does not lend
itself to a laWtudinarian construcWon”.
People v. Judge Prieto, Jr., L-46542, 21 July
1978. (Prieto’s argument was that the Wme
to forfeit bail should be aoer convicWon,
not upon jumping bail).
Q. What is the reason for allowing trial in
absenWa?
A. To speed up the disposiWon of criminal
cases. People v. Salas, 143 SCRA 163
(1986).
Right to counsel
Q. Why must an accused enjoy the
right to counsel?
A. This is a realisWc recogniWon of the
obvious truth that the average defendant
does not have the professional skill to
protect himself when brought before a
tribunal with power to take his life or
liberty, wherein the prosecuWon is
represented by an experienced and
learned counsel. Johnson v. Zerbst, 304
U.S. 458 (1938).
Q. Why must an accused enjoy the
right to counsel?
A. This is a realisWc recogniWon of the
obvious truth that the average defendant
does not have the professional skill to
protect himself when brought before a
tribunal with power to take his life or
liberty, wherein the prosecuWon is
represented by an experienced and
learned counsel. Johnson v. Zerbst, 304
U.S. 458 (1938).
Q. What duty imposed on the judge by the
guarantee of the right to counsel?
A. If the defendant appears without
counsel, he must be informed by the court
that he has a right to have counsel before
being arraigned, and must be asked if he
desires the aid of counsel. If he desires and
is unable to employ counsel, the court
must assign counsel to defend him. This is
a right which the defendant should not be
deprived of, and the failure of the court to
assign counsel or, aoer counsel has been
assigned, require him to perform this duty
by appearing and defending the accused
would be sufficient cause for the reversal of
the case. U.S. v. Gimeno, 1 Phil. 236 (1905).
Q. What are the pre-arraignment duWes of
the trial judge?
A. Under SecWon 6 of Rule 116 of the Rules
of Court, the four-fold duWes are: “(1) to
inform the accused that he has the right to
have his ow counsel before being
arraigned; (2) aoer giving such informaWon,
to ask accused whether he desires the aid
of counsel; (3) if he so desires to procure
the services of counsel, the court must
grant him reasonable Wme to do so; and (4)
if he so desires to have counsel but is
unable to employ one, the court must
assign counsel de oficio to defend him”.
People v. Agbayani, G.R. No. 122770,
January 16, 1998, 284 SCRA 315, 333 (ciWng
People v. Holgado, 85 Phil. 752, 756
[1950]).
Q. PeWWoner contends that the trial court
should have appointed a counsel de officio
when his counsel consistently failed to
appear for his cross-examinaWon. Decide.
A. The duty of the court to appoint a
counsel de officio for the accused has no
counsel of choice and desires to employ
the services of one is mandatory only at the
Wme of arraignment. No such duty exists
where the accused has proceeded to
arraignment and then trial with a counsel
of his own choice.
In the present case, since the peWWoner
was represented by counsel de parte at the
arraignment and trial, the trial court could
not be deemed duty-bound to appoint a
counsel de oficio for the conWnuaWon of his
cross-examinaWon. Indeed, aoer his iniWal
cross-examinaWon, the trial court granted
the peWWoner’s moWon to postpone, giving
him sufficient Wme to engage the services
of another counsel. The failure of AQy. Jose
Dimayuga, his newly hired lawyer, to
appear at the subsequent hearings without
reason was sufficient legal basis for the trial
court to order the striking from the records
of his direct tesWmony, and thereaoer
render judgment upon the evidence
already presented. At the most, the
appointment of a counsel de officio in a
situaWon like the present case would be
discreWonary with the trial court, which
discreWon will not be in interfered with in
the absence of grave abuse. Libuit v.
People, G.R. No. 154363, September 13,
2005; Sayson v. People, 166 SCRA 680
(1988).
Q. Both the transcript of stenographic
notes and the order issued by the trial
judge failed to disclose categorically that
the court informed the accused of his right
to counsel. Is this sufficient ground to
reverse convicWon?
A. No. The trial court must be presumed to
have complied with the procedure
prescribed by law for the hearing and trial
of cases, and such a presumpWon can only
be overcome by an affirmaWve showing to
the contrary. People v. Agbayani, G.R. No.
122770, January 16, 1998, 284 SCRA 315,
334. However, the Court admonished all
trial courts to have their compliance with
their pre-arraignment duWes put on record.
Id. at 335-336.
Q. Aoer convicWon, accused discovers that
the “lawyer” who defended her was not a
member of the bar. May she be granted
new trial?
A. Yes. She has a right to qualified counsel.
Delgado v. Court of Appeals, 145 SCRA 357
(1986); People v. Santocildes, Jr., G.R. No.
109149, December 21, 1999.
Q. Appellants fault the trial court for
appoinWng counsel de oficio despite their
insistence to be assisted by counsel of their
own choice; and second, for refusing to
suspend trial unWl they shall have secured
the services of new counsel.
A. We have held that there is no denial of
the right to counsel where a counsel de
oficio was appointed during the absence of
the accused’s counsel de parte, pursuant to
the court’s desire to finish the case as early
as pracWcable under the conWnuous trial
system. Indisputably, it was the strategic
machinaWons of appellant and their
counsel de parte which prompted the trial
court to appoint counsel de oficio. The
unceremonious withdrawal of appellant’s
counsel de patre during the proceedings of
August 24, 1998, as well as their stubborn
refusal to return the court for trial
undermines the conWnuity of the
proceedings. Considering that the case
had already been dragging on a lethargic
course, it behooved the trial court to
defense counsel. Accordingly, it was proper
for the trial court to appoint counsel de
oficio to represent appellants during the
remaining phases of the proceedings.
People v. Larrañaga, et al., G.R. Nos.
138874-75, February 3, 2004.
Q. In Wmes of emergency, may a person be
denied the rights to confer with counsel?
A. No. Diokno v. Enrile, G.R. No. L-
36315, December 19, 1981.
Q. Convicted of rape, accused sought to
withdraw his appeal to the Supreme Court
on the ground that he could not afford
counsel. Should he be allowed?
A. No. He should be given counsel de oficio
instead. People v. Rio, G.R. No. 90294,
September 24, 1991.
Q. The accused contends that the
judge’s appointment of a counsel de oficio
deprives him of his consWtuWonal right to
be defended by counsel of his own choice.
Decide.
A. The ‘preference in the choice of counsel’
pertains more aptly and specifically to a
person under invesWgaWon [Art. III, §12(1)]
rather that one who is the accused in a
criminal prosecuWon [Art. III, §14(2)]”.
Amion v. Judge Chiongson, A.M. No. RTJ-
97-1371, January 22, 1999.
Right to be informed
Q. What is the purpose and scope of the
right to be informed?
A. The object of the wriQen accusaWon is –
first, to furnish the accused with such a
descripWon of the charge against his as will
enable him to make his defense; and
second, to avail himself of his convicWon or
acquiQal for protecWon against a further
prosecuWon for the same cause; and third,
to inform the court of the facts alleged, so
that it may decide whether they are
sufficient in law to support a convicWon, if
one should be had. In order that this
requirement may be saWsfied, facts must
be stated, not conclusions of law. Every
crime is made up of certain acts and intent;
these must be set forth in the complaint
with reasonable parWcularity of Wme,
place, names (plainWff and defendant),
and circumstances. In short, the complaint
must contain a specific allegaWon of every
fact and circumstance necessary to
consWtute the crime charged. U.S. v.
Karelsen, 3 Phil. 223 (1904).
Q. What must a criminal informaWon
contain in order to comply with the
consWtuWonal right of the accused to be
informed of the nature and cause of the
accusaWon against him?
A. According to §§6 and 8 Rule 110 of the
Rules of Court, it must stage the following:
(1) the same of the accused; (2) the
designaWon given to the offense by the
statute; (3) a statement of the acts or
omissions so complained of as consWtuWng
the offense; (4) the name of the offended
party; (5) the approximate Wme and fate
of the commission of the offense; and (6)
the place where the offense had been
commiQed. People v. Quitlong, G.R. No.
121562, July 10, 1998, 292 SCRA 360.
Q. Charged under Arts. 293, 294, 296, RPC,
may the accused be convicted under Art.
335?
A. Yes, provided that the informaWon
alleged facts under Art. 335. “The real
quesWon is not, did he commit a crime
given in the law some technical and specific
name, but did he perform the acts alleged
in the body of the informaWon in the
manner therein set forth. If he did, it is of
no consequence to him, either as a maQer
of procedure or of substanWve right, how
the law denominates the crime which
those acts consWtute”. People v. Labado, 98
SCRA 730, 747 (L-38548, July 24, 1980),
ciWng IV Moran.
Q. Two informaWon’s each charge R with
only one offense of rape. However, the
evidence presented during trial established
that R raped G on six separate occasions.
May R convicted of counts of rape?
A. No. in view of the right to be informed of
the accusaWon against him, R “cannot be
held liable for more than what he was
charged with”. People v. Ranido, G.R. Nos.
116450-51, March 31, 1998, 288 SCRA 369.
Q. The InformaWon charged the accused
with statutory rape commiQed “before and
unWl October 15, 1994… several Wmes”. The
RTC convicted him of rape commiQed in
1993. Was his right to be informed
violated?
A. No. the informaWon need not allege the
precise Wme of the commission if an
offense, unless Wme is an essenWal element
of the crime charged. The date is not an
essenWal element of rape, its gravamen is
carnal knowledge of a woman. “Indeed,
the determinaWve factor in the resoluWon
of the quesWon involving a variance
between allegaWon and proof in respect of
the date of the crime is the element of
surprise on the part of the accused and his
corollary inability to defend himself
properly. The records of this case belie
appellant’s claim of surprise”. People v.
Bugayong, G.R. No. 126518, December 2,
1998.
Q. Accused was convicted by the RTC
of consummated rape based on the
complaint filed against him specially
alleging that he raped the vicWm on April
25, 1991. However, the vicWm’s tesWmony
during cross examinaWon show that the
accused succeeded in raping her in the
past, but nit on April 25, 1991. Was the RTC
correct?
A. No. “Due process demands that the
accused in a criminal case should be
informed of the nature of the offense with
which he is charged before he is put on trial
– an accused cannot be convicted of rape
where the evidence shows that the rape
was commiQed on some other date
different from the date indicated in the
informaWon”. But, accused is guilty of
aQempted rape. People v. Cruz, G.R. No.
1167278, July 17, 1996, 259 SCRA 109.
Q. Is he precise Wme of rape essenWal for
the validity of an informaWon?
A. No. the Wme of occurrence is not an
essenWal element of rape. Its precise date
and hour need not be alleged in the
complaint or informaWon. SecWon 11 of
Rule 110 of the Rules of Court provides.
The informaWon in this case alleged that
the crime was commiQed “someWme in
March 1998” which, according to private
complainant, was more or less at the
closing of the school year, Being reasonably
definite and certain, this approximaWon
sufficiently meets the requirement of the
law. Aoer all, SecWon 6 of Rule 110 of the
Rules of Court merely requires that the
informaWon must state, among others, the
approximate Wme of the commission of the
offense. People v. Cachapero, G.R. No. 153,
May 20, 2004; People v. Razonable, G.R.
Nos. 128085-87, April 12, 2000.
Q. Where the accused charged with rape,
may he be convicted for statutory rape if
relaWon to the vicWm is not included in the
informaWon?
A. No. the Court has repeatedly held that
qualifying circumstances must be alleged.
Q. PeWWoner has been charged with
rebellion complexed with murder and the
facts consWtuWng the offense are set down
in the informaWon. PeWWoner contends
that since rebellion may not be complexed
with murder, he is charged with a non-
exisWng crime. Is the contenWon tenable?
A. No. Indeed, rebellion may not be
complexed with murder. But the facts
alleged are enough to consWtute the crime
of rebellion. The informaWon therefore is
valid. Enrile v. Judge Salazar, G.R. No.
92163, June 5, 1990.
Q. Accused is charged with two
informaWons containing two sets of facts.
May the facts in the two informaWons be
combined to allow a convicWon for a
complex crime consisWng of the allegaWons
in the two informaWons?
A. No. Although trial of the two cases may
be joint, there should be two separate
verdicts for the two informaWons. To
combine the two set of facts to form one
complex crime would violate his right to be
informed of the accusaWon against him.
People v. Ramirez, G.R. Nos. 92167-68, July
14, 1995.
Right to speedy trial
Q. What is the meaning of “speedy
trial”?
A. The concept of speedy trial is necessarily
relaWve and determinaWon of whether the
right has been violated must be based on
the balancing of various factors. Length of
delay is certainly a factor to consider; but
other factors must also be considered such
as the reason for the delay, the effort of the
defendant to assert his right, and the
prejudice caused the defendant.
Conde v, Rivera, 59 Phil. 650 (1924), is the
leading case on the subject of speedy trial.
Aoer reciWng the piWful plight of peWWoner
Conde, JusWce Malcolm concluded: We lay
down the legal proposiWon that, where a
prosecuWng officer, without good cause,
secures postponements of the trial of a
defendant against his protest beyond a
reasonable period of Wme, as in this
instance for more than a year, the accused
is enWtled to relief by a proceeding in
mandamus to compel a dismissal of the
informaWon, or if he be restrained of his
liberty, by habeas corpus to obtained
freedom. Id. at 652.
Q. InformaWon was filed and confinement
began 27 May 1968. ConvicWon came 2
April 1970 and appeal was perfected
immediately. By 1997, there sWll was no
decision on appeal because the
stenographer could not be located. The
Court of Appeals, by a series of 14
resoluWons unWl July 1977 was doing what
it could to have the stenographer arrested,
but to no avail. Was there violaWon of the
right to a speedy trial?
A. No. Accused was already convicted. The
fault was not of the Court of Appeals’.
Therefore, delay was not so unreasonable
as to outweigh the requirement of jusWce.
Ventura v. People, L-46576, November 6,
1978.
Q. InformaWon for frustrated murder was
filed 26 November 1963. Arraignment and
plea of “Not guilty” was 22 December
1964. Provisional dismissal with consent of
accused and counsel was granted 2 June
1965 because prosecuWon witnesses failed
to appear. On 10 September 1969, aoer 4
years, 3 months, 8 days, informaWon was
refiled. Accused moved to quash on the
basis of right to speedy trial. Decide.
A. Defense is not proper because (1) there
was no delay in trial, there being no
indictment as yet; and (2) the consent of
the accused was a waiver of right not to be
prosecuted for the same offense. Bermisa
v. Court of Appeals, L-32506, July 30 1979.
Q. Complainant was not charged unWl aoer
a period of 1 year and 7 months of
detenWon. He asks for release on habeas
corpus on the ground of denial of the right
to a speedy trial. Proper?
A. No. One begins to count the delay of the
trial only aoer the filing of the informaWon.
Moreover, the delay contemplated by the
ConsWtuWon is unreasonable delay. MarWn
v. General Fabian Ver, G.R. No. 62819, July
25, 1983. (But note that the new
ConsWtuWon guarantees not just “speedy
trial” but speedy disposiWon of cases”, a
broader concept than “speedy trial”).
Q. On repeated moWons of the accused the
reinvesWgaWon and arraignment were
delayed for a long Wme. Aoer arraignment,
accused again asked for postponement of
the trial. On one trial date, the prosecuWon
was absent. Accused took the opportunity
to ask for dismissal of the case on the
ground of denial of the right to a speedy
trial. The judge acceded and dismissed the
case. Does the dismissal bar reinstatement
of the case?
A. No. The dismissal on the ground of
denial of the right to a speedy trial
consWtuted abuse of discreWon and was
therefore invalid. People v. Jardin, G.R. Nos.
33037-42, August 17, 1983.
Q. What is the remedy for violaWon of the
right to speedy trial?
A. The accused is enWtled to dismissal of
the case, and, if he is under detenWon, to
release by habeas corpus. Moreover,
dismissal for violaWon of the right to
speedy trial is equivalent to acquiQal and is
a bar to another prosecuWon for the same
offense.
Right to an impar-al trial
Q. Give an example of a judge who lacks
imparWality.
A. The applicaWon of the right to criminal
prosecuWon was recently emphasized in
Mateo, Jr. v. Villaluz, 50 SCRA 18 (1972).
One of the accused in the case had made
an extra-judicial statement, which he
subsequently subscribed before the judge,
implicaWng his co-accused. Later, however,
the same accused repudiated his
statement claiming that he had made it as
a result of a threat by government agent.
The co-accused then sought the
disqualificaWon of the judge claiming that
the repudiaWon of the statement would not
sit well with the judge before whom it had
been subscribed. The Court, noWng “the
imperaWve character of the safeguard of
due process connoWng, at the very least, an
imparWal tribunal”, disqualified the judge.
Q. PeWWoner accused had been convicted
of arson by respondent judge who had
aQributed to the accused the desire to
destroy evidence of malversaWon as the
moWve for arson. The same judge is now
trying the accused for the same
malversaWon. Should the judge disqualify
himself?
A. Yes. Ignacio v. Villaluz, 90 SCRA 16 (L-
37527, May 5, 1979).
Q. In his decision of convicWon, the trial
judge expressed his indignaWon and
revulsion at the monstrosity of the offense
commiQed. Accused claimed that the
language of the decision manifested
prejudice and bias on the part of the judge.
Decide.
A. Standing alone, such statements of the
judge do not prove bias in the conduct of
the trial. In the absence of evidence that in
fact bias characterized the conduct of the
trial, the claim of parWality on the part of
the judge cannot stand. People v. Regala
and Flores, L-23693, April 27, 1982.
Q. Where a judge conducted preliminary
invesWgaWon and made a finding of
probable cause, must he for that reason be
disqualified from trying the case?
A. No, In the absence of evidence of
parWally. People v. Sendaydiego, L-33252,
20 January 1978 (81 SCRA 120).
Q. Appellant contends that the lack of
imparWality of the judge was shown by the
fact that he intervened in the cross-
examinaWon. Decide.
A. “We have had occasion to hold that it is
not only the right but oo-Wmes the duty of
a trial judge to examine witnesses when it
appears necessary for the on of the record.
Under the system of legal procedure in
vogue in this jurisdicWon, where the trial
court is judge of both the law and the facts,
it is oo-Wmes expedient or necessary in the
due and faithful administraWon of jusWce
for the presiding judge… to re-examine a
witness in order that his judgment when
rendered may rest upon a full and clear
understanding of the facts”. People v.
Manalo, 148 SCTA 98, 104-105 (1987),
quoWng U.S. v. Lim Tiu, 31 Phil. 504, 506
(1915).
Right to a public trial
Q. When is a trial “public”?
A. It is public when aQendance is open to
all irrespecWve of relaWonship to
defendants. However, when the evidence
to be presented may be characterized as
“Offensive to decency or public morals”,
the proceeding may be limited to friends,
relaWves and counsel. Garcia v. Domingo, L-
30104, July 25 1973.
Q. What is the purpose of the guarantee of
a public trial?
A. The purpose of this guarantee is to serve
“as a safeguard against any aQempt to
employ our courts as instruments of
persecuWon. The knowledge that every
criminal trial is subject to
contemporaneous review in the forum of
public opinion is an effecWve restraint on
possible abuse of judicial power”. Garcia v.
Domingo, supra.
Q. On mandatory review of a death
sentence, the defense is raised (for the first
Wme) that the right to a public trial was
denied because arraignment and hearing
were not in court but in the Bilibid Prison.
This was done for security reasons. Is the
defense valid?
A. No. (1) The public was not excluded; (2)
the accused was not prejudiced; (3) the
accused did not object during trial. People
v. Tampus, L-44690, March 28, 1980.

Right to meet witness face to face
Q. What is the purpose of the right of
confrontaWon?
A. The right has a two-fold purpose: (1)
primarily, to afford the accused an
opportunity to test the tesWmony of the
witness by cross-examinaWon, and (2)
secondarily, to allow the judge to observe
the deportaWon of the witness.
Q. A witness in a criminal prosecuWon
tesWfied at the preliminary invesWgaWon
and was extensively cross-examined by the
defense. When trial came, the witness
could not be found in spite of the
combined efforts of naWonal and local law
enforcement agencies. May the transcript
of the witness’ tesWmony at the
preliminary invesWgaWon be admiQed in
evidence?
A. Yes, since admission will be for the same
criminal case and extensive opportunity for
cross-examinaWon was already given, and
the witness is not merely refusing to tesWfy
but is actually missing. People v. Villaluz,
G.R. No. 33459, October 20, 1983.
Q. May extrajudicial statements of an
accused implicaWng another be used
against the laQer even if not repeated in
open court?
A. No, because that would violate the right
of confrontaWon. People v. de la Cruz, G.R.
No. 33030, August 25, 1983.
Q. May an affidavit executed by a witness
be admiQed in evidence even if the witness
is not produced in court?
A. No, because that would violate the right
confrontaWon. People v. Ramos, G.R. No.
59318, May 16, 1983.
Q. What are the principal excepWons to the
right of confrontaWon?
A. (1) The admissibility of “dying
declaraWons”.
(2) Trial in absenWa under SecWon 14(2).
Q. TesWmony of witnesses at the
preliminary invesWgaWon was made part of
the evidence of the prosecuWon. This
tesWmony had been made in the presence
of accused and counsel was admiQed
subject to the right of defense to recall
witnesses at trial for cross-examinaWon,
which defense did. Was there violaWon of
right of confrontaWon?
A. No. People v. Liwanag (Linda Bie), L-
27683, 19 October 1976.
Q. In a prosecuWon for parricide, aoer a
principal witness finished his direct
tesWmony, the defense immediately
proceeded with the cross-examinaWon.
Due to lack of material Wme, however, the
cross-examinaWon was not finished and a
date was set for conWnuing the cross-
examinaWon. Before the appointed date,
however, the witness was shot dead by
police officers while aQempWng to escape
from prison. On moWon of the defense, the
trial judge excluded the enWre tesWmony of
the witness. Was the exclusion proper?
A. Failure to complete the cross-
examinaWon was the fault neither of the
defense nor of the prosecuWon; not of the
defense, because he did proceed with the
cross-examinaWon to the extent that there
was Wme; not to the prosecuWon, because
it was not the state’s fault that the witness
should die. In such a situaWon, the rule is
that so much of the tesWmony as has
already been covered by cross-examinaWon
should be admissible in evidence. People v.
Seneris, 99 SCRA 92 (L-48883, August 6,
1980).
Q. Where aoer repeated subpoenas (but
not personally served) a witness in a
criminal case fails to appear, may his
tesWmony at preliminary invesWgaWon be
admiQed instead if such tesWmony was
made in the presence of accused and
subjected to cross-examinaWon?
A. Not under the circumstances. ExcepWons
found in SecWon 47; Rule 130 must be
strictly construed because of the Bill of
Rights provision. Here, there was no
showing that if was impossible to produce
the witness. Toledo, Jr. v. People and Judge
Kapunan, Jr., L-36603, 30 September 1978
(also Tan v. Court of Appeals, L-22793, 26
May 1967, 20 SCRA 54).
Q. Is the right of confrontaWon available in
preliminary invesWgaWon?
A. No. It is a right available during trial
which begins only upon arraignment.
Dequito v. Arellano, 81 Phil. 128 (1948).
NOTE:
“From SecWon 5 of Rule 112 it is clear that
unlike in the preliminary invesWgaWon
proper, an accused is not enWtled as a
maQer of right to be present during the
preliminary examinaWon nor to cross-
examine the witnesses presented against
him before his arrest, the purpose of said
examinaWon being merely determine
whether or not there is sufficient reason to
issue a warrant of arrest. (The provision)
commanding the determinaWon of
probable cause prior to the issuance of a
warrant of arrest, requires no noWce to an
accused. A preliminary examinaWon is
generally a proceeding ex parte in which
the person charged has no right to
parWcipate or to be present”. Marinas v.
Siochi, 104 SCRA 423, 437 (L-25707 and
25753-4, May 14, 1981).
Q. Must an informant who led the police to
the arrest of the accused be presented for
cross examinaWon?
A. No. there is no right of confrontaWon
against informants who are not witnesses.
Compulsory process
Q. Compare the right to compulsory
process in the 1935 ConsWtuWon with that
in the 1973 and 1987 versions.
A. The 1935 version speaks of the right to
compulsory process “to secure the
aQendance of witnesses in his behalf”
whereas the 1973 and 1987 version add
the right “to have compulsory process to
secure… the producWon of evidence on his
behalf”.
Q. Relying on the new provision of the 1973
ConsWtuWon which grants the right to have
compulsory process to secure the
producWon of evidence, peWWoners asked
the lower court for leave to serve wriQen
interrogatories on the physician who had
aQended to their wounds but who had
already moved to the United States.
Denied this privilege by the lower court,
they file a peWWon for cerWorari to reverse
the lower court’s decision.
A. Since this is a cerWorari peWWon, the
availability of the remedy must be
premised on a showing of arbitrary,
capricious, and whimsical exercise power.
This is not evident. The fact of their having
been treated by a doctor can be tesWfied to
by other witnesses; the medical cerWficates
as to the alleged wounds could be
produced to show maltreatment; the
length of stay in the hospital can be verified
from records.
“In the light of what has been stated, it
becomes obvious why as of now, there is
no need to make a definite pronouncement
on the scope of the expanded concept of
the consWtuWonal right to secure not only
the aQendance of witnesses but also the
producWon of evidence”. Fajardo v. Garcia,
98 SCRA 514, 520 (L-38675, July 2, 1980).
Q. The accused wanted X to tesWfy on his
behalf and a subpoena was issued for this
purpose. Instead of taking effecWve steps,
however to have X brought to court, the
judge gave the responsibility for X’s
aQendance to the defense, expressly
staWng that if the defense was not able to
bring X to the court, X’s tesWmony would be
dispensed with. Was this proper?
A. Considering that this case involved a
capital offense, the court acted
precipitously in not having the witness
brought to court, by ordering her arrest if
necessary. People v. Bardaje, 99 SCRA 388,
402-4 (L-29271, August 29, 1980).
NOTE:
In Webb v. de Leon, G.R. No. 121234,
August 23, 1995, the Court ruled that, since
a preliminary invesWgaWon can result in
arrest and therefore in a deprivaWon of
liberty, the accused should not be denied
access to evidence favorable to him, in this
case an earlier version of an affidavit made
by a witness for the prosecuWon.
Waiver of rights
Q. What is the presumpWon in the maQer
of waiver of a consWtuWonal right?
A. “Whenever a protecWon given by the
ConsWtuWon is waived by the person
enWtled to that protecWon, the
presumpWon is always against the waiver.
Consequently, the prosecuWon must prove
with strongly convincing evidence to the
saWsfacWon of this Court that indeed the
accused willingly and voluntarily submiQed
his confession and knowingly and
deliberately manifested that he was not
interested in having a lawyer assist him
during the taking of that confession”.
People v. Jara, 144 SCRA 516, 531 (1986).
SECTION 15
THE PRIVILEGE OF THE WRIT OF HEBEAS
CORPUS SHALL NOT BE SUSPENDED
EXCEPT IN CASES OF INVASION OR
REBELLION WHEN THE PUBLIC SAFETY
REQUIRES IT.
Q. Define a writ of habeas corpus.
A. It is defined as a writ directed to the
person detaining another, commanding
him to produce the body of the prisoner at
a designated Wme and place, with the day
and cause of his capWon and detenWon, to
do, submit to, and receive whatever the
court or judge awarding the writ shall
consider in that behalf. (Hence, an essenWal
requisite for the availability of the writ is
actual deprivaWon of personal liberty).
Q. What is the “privilege of the writ of
habeas corpus”?
A. It is the right to have an immediate
determinaWon of the legality of the
deprivaWon of physical liberty.
Q. What may be suspended, the writ or the
privilege of the writ?
A. The writ is never suspended. It always
issues as a maQer of course. What is
suspended is the privilege of the writ, i.e.,
once the officer making the return shows
to the court that the person detained is
being detained for an offense covered by
the suspension, the court may not enquire
any further.
Q. Who may suspend the privilege?
A. The President.
Q. When may the privilege be suspended?
A. “… in cases of invasion or rebellion when
the public safety requires it”. ArWcle III,
SecWon 15. Hence, for the validity of the
suspension, two requisites must concur; (1)
the existence of actual invasion or
rebellion; (2) public safety requires the
suspension.
The new ConsWtuWon has removed
“insurrecWon” and “imminent danger” of
invasion, insurrecWon or rebellion as
grounds for the suspension.
Q. What are the limitaWons on the power
to suspend the privilege?
A. See ArWcle VII, SecWon 18.
Q. Does the suspension of the privilege also
suspend the right to bail?
A. No. Art. III, Sec. 13.
Q. Released temporarily, peWWoner was
nevertheless subjected to certain
condiWons limiWng his movements. Is
habeas corpus sWll a proper remedy?
A. Yes. “A release that renders a peWWon for
a writ of habeas corpus moot and academic
must be one which is free from involuntary
restraints”. Moncupa v. Enrile, 141 SCRA
233, 238 (1986).
Q. (1) Respondent’s defense in a peWWon
for habeas corpus is that they released the
detainees for whom the peWWon was filed.
However, the allegaWon of release is
disputed by peWWoners, and it is not denied
that the detainees have not been seen or
heard from since their supposed release.
Do peWWoners have the burden in law of
proving that detainees are sWll detained by
respondents or does the burden shio to
respondents of proving that they did
release the detainees?
(2) If respondents have the burden of
proving, have they discharged that burden
in this case?
(3) If respondents have not saWsfied
that burden, what relief may the Court
grant peWWoners?
A. (1) Where there are grounds for grave
doubts about the alleged release,
parWcularly where the standard and
prescribed procedure in effecWng release
has not been followed, the burden of proof
falls on the respondents. Release is an
affirmaWve defense, like self-defense, and
each party must prove his affirmaWve
allegaWon.
(2) The evidence needs further study.
The Court is not a trier of facts.
(4) The case must be referred to the
Commission on Human Rights.
Dizon v. Eduardo, 158 SCRA 470
(1988).
SECTION 16
ALL PERSONS SHALL HAVE THE RIGHT TO A
SPEEDY DISPOSITION IF THEIR CASES
BEFORE ALL JUDICIAL, QUASI-JUDICIAL, OR
ADMINISTRATIVE BODIES.
Q. Compare the right guaranteed by this
provision with the right to a speedy trial in
SecWon 14.
A. Speedy trial in SecWon 14 covers only the
trial phase of criminal cases, whereas
SecWon 16 covers all phases of any judicial,
quasi-judicial or administraWve
proceedings.
Q. Explain the concept of “speedy
disposiWon of cases”.
A. The concept of “speedy disposiWon of
cases”, like “speedy trial”, is a relaWve term
and must necessarily be a flexible concept.
In the determinaWon of whether or not the
right has been violated, the factors that
may be considered and balanced are length
of delay, reason for the delay, asserWon of
the right or failure to assert it, and
prejudice caused by the delay. See also the
Wme limits in ArWcle VIII, SecWon 15.
NOTE:
The concept of “speedy disposiWon of
cases” is flexible and is consistent with
reasonable delay. Caballero v. Alfonso, Jr.,
153 SCRA 153 (1987). “The desideratum of
a speedy disposiWon of cases should not, if
possible, result in the precipitate loss of a
party’s right to present evidence and either
in plainWff’s being non-suited or the
defendant’s being pronounced liable under
an ex partejudgment”. Padua v. Ericta, 161
SCRA 458 (1988).
Q. Ten years aoer trial, no decision had yet
been released. There was no explanaWon
why the first judge did not render a
decision. Meanwhile, there had been
changes of judges and the records of the
trial had not yet been transcribed. When
the new judge ordered a re-hearing,
accused asked for dismissal of the case on
the ground that he had been denied the
right to speedy trial and speedy disposiWon
of his case.
A. The delay was neither the fault of the
accused nor that of the prosecuWon. The
rights involved are not just those of the
accused but also those of the public. The
rehearing is jusWfied in order to allow the
new judge to come to a decision. Guerrero
v. Court of Appeals, G.R. No. 107211, June
28, 1986.
Q. What remedy does a person have if
there has been unreasonable delay in the
resoluWon of a case?
A. Dismissal through mandamus, Roque v.
Ombudsman, G.R. No. 129978, May 12,
1999.
NOTE:
In Carillo, et al. v. Ombudsman, G.R. No.
109271, March 14, 2000, the Court
recognized that “the ever-increasing
caseload of courts has effected the speedy
disposiWon of cases pending before the
Sandiganbayan”.
SECTION 17
NO PERSON SHALL BE COMPELLED TO BE A
WITNESS AGAINST HIMSELF.
Q. What is the purpose of the guarantee
against self-incriminaWon?
A. It was established on the grounds of
public and humanity: Of policy, because, if
the party were required to tesWfy, it would
place the witness under the strongest
temptaWon to commit perjury; and of
humanity, because it would prevent the
extorWng of confession by duress. U.S. v.
Navarro, 3 Phil. 143 (1904).
Q. When is a quesWon incriminaWng?
A. Chief JusWce Marshall explained that
usually a crime or a criminal act may
contain two or more elements and that a
quesWon would have a tendency to
incriminate, even if it tends to elicit only
one said elements. The right thus includes
a right to refuse to tesWfy to a fact which
would be a necessary link in a chain of
evidence to prove the commission of a
crime by a witness. Isabela Sugar Co. v.
Macadaeg, 98 Phil. 431 (1954).
Q. Is subjecWon to physical examinaWon
covered by the self-incriminaWon clause?
A. It was held early in the Philippine
jurisprudence that what is prohibited by
the consWtuWonal guarantee is the use of
physical or moral compulsion to extort
communicaWon from the witness, not an
inclusion of his body in evidence, when it
may be material. Thus, substance emitng
from the body of the defendant was
received as evidence in a prosecuWon for
acts of of lasciviousness. U.S. v. Tan Teng,
23 Phil. 145, 150 (1912). Morphine forced
out to the mouth of the accused was
received. U.S. v. Ong Siu Hong, 36 Phil. 735
(1917). An order by the judge for the
witness to put on a pair of pants of size was
allowed. People v. Otadora, 86 Phil. 244
(1950). And since, according to the Court,
the “kernel of the privilege” was willing to
compel a woman accused of adultery to
submit to the indignity of being tested for
pregnancy. Villaflor v. Summers, 41 Phil. 62,
68 (1920). Similarly, the taking of pictures
of an accused even without the assistance
of counsel, being a purely mechanical act,
is not a violaWon of his consWtuWonal right
against self-incriminaWon. People v.
Gallarde, G.R. No. 133025, February 17,
2000.
Q. Accused argues that the admission as
evidence of the vicWm’s wallet together
with its contents, viz., the vicWm’s
residence cerWficate. ID card and bunch pf
keys, violate his right against self-
incriminaWon. Decide.
A. The right against self-incriminaWon
applies only to tesWmonial compulsion. “It
does not apply to the instant case where
the evidence sought to be excluded is not
an incriminaWng statement but an object
evidence”. People v. Malimit, G.R. No.
109775, November 14, 1996, 264 SCRA
167, 176.
Q. May a person be compelled to produce
a sample of his handwriWng to be used as
evidence in a prosecuWon against him?
A. No. The Court said in Beltran v. Samson,
50 Phil. 570 (1929).
… wriWng is something more than
moving the body, or the hand, of the finger;
wriWng is not purely mechanical act,
because it requires the applicaWon of the
intelligence and aQenWon…
We say that, for the purpose of the
consWtuWonal privilege there is a similarity
between one who is compelled to produce
a document, and one who is compelled to
furnish a specimen of his handwriWng, for
in both cases, the witness is required to
furnish evidence against himself.
And we say that the present case is
more serious… because here the witness is
compelled to write and crate, by means of
the act of wriWng, evidence which does not
exist.
Q. Aoer being arrested by NBI agents for
pilferage of mail maQer in the post office,
the peWWoner and his companions were
asked to affix their signatures on the
envelopes of the leQers, which consWtute
the corpus delicW. Appealing his convicWon
of qualified theo by the Sandiganbayan,
the peWWoner invokes the Beltran v.
Samson, 53 Phil. 570 (1929), ruling in
arguing that the singing of his name was
not a mere mechanical act but one which
required the use of intelligence and
therefore consWtutes self-incriminaWon.
Decide.
Q. Aoer being arrested by NBI agents for
pilferage of mail maQer in the post office,
the peWWoner and his companions were
asked to affix their signatures on the
envelopes of the leQers, which consWtute
the corpus delicW. Appealing his convicWon
of qualified theo by the Sandiganbayan,
the peWWoner invokes the Beltran v.
Samson, 53 Phil. 570 (1929), ruling in
arguing that the singing of his name was
not a mere mechanical act but one which
required the use of intelligence and
therefore consWtutes self-incriminaWon.
Decide.
A. “To be sure, the use of specimen
handwriWng in Beltran is different from the
use of peWWoner’s signature in this case. In
that case, the purpose was to show that
the specimen handwriWng matched the
handwriWng in the document alleged to
have been falsified and thereby show that
the accused was the author of the crime
(falsificaWon) while in this case the purpose
for securing the signature of peWWoner on
the envelopes was merely to authenWcate
the envelopes as the one seized from him
and [his co-accused]”. Marcelo v.
Sandiganbayan (First Division), G.R. No.
109242, January 26, 1999.
QUERY:
But does not the signature signify
owning to the possession of pilfered
materials?
Q. May a person be compelled to produce
private books and papers to be used
against him?
A. Compulsory producWon of private
booms and papers of the owner is
compelling him to be a witness against
himself. Boyd v. United States, 116 U.S. 616
(1886).
Q. What “persons” are protected by the
self-incriminaWon clause?
A. Only natural persons. Thus, a
corporaWon may be compelled to submit to
the visitorial powers to the State even if
this will result in disclosure of criminal acts
of the corporaWon. Hale v. Henkel, 201 U.S.
43 (1906); Wilson v. United States, 221 U.S.
361 (1911).
Q. May a corporate officer prevent the
producWon of corporate papers on the
ground that they may incriminate him
personally?
A. No. That would not be self-incriminaWon
but incriminaWon by the corporaWon. Hale
v. Henkel, supra.
Q. Are all personal papers protected by the
self-incriminaWon clause?
A. No. That the self-incriminaWon clause
protects the private papers of a natural
individual is not without excepWon. The
case of Shapiro v. United States, 335 U.S. 1
(1948), illustrates this excepWon. The case
arose out of a prosecuWon for violaWon of
regulaWons made under the Emergency
Price Control Act of 1942. When
defendant’s records, which he was
required to keep by the Office of the Prize
AdministraWon, were ordered defendant
claimed protecWon by the consWtuWonal
privilege. The High Tribunal ruled that “the
privilege which exists as to private papers,
cannot be maintained in relaWon to
‘records required by law to be kept in order
that there may be suitable informaWon of
transacWon which are the appropriate
subjects of governmental regulaWon and
the enforcement of restricWons validly
established”. Id. at 33.
Q. Can government registraWon
requirements violate the self-incriminaWon
clause?
A. In more recent cases, the United
States Supreme Court has struck down
certain registraWon requirements that
presented real and appreciable risks of self-
incriminaWon. These involved statutes
directed at inherently suspect groups in
areas permeated by criminal statutes, a
circumstance which laid the subjects open
to real risk of self-incriminaWon. Albertson
v. Subversive AcWviWes Control Board, 382
U.S. 70 (1965) (“Communist”) Marchet v.
United States, 390 U.S. 39 (1968)
(“gamblers”); Grosso v. United States, 390
U.S. 85 (1968) (“illegal firearms”); Leary v.
United States, 395 U.S. 6 (1969) (“drugs”).
But see California v. Byers, 402 U.S. 424
(1971) (“hit-and-run statute”).
Q. In what proceedings may the right
against self-incriminaWon be asserted?
A. In any judicial or administraWve
proceeding or in any official government
enquiry.
Q. At what stage of an enquiry may the
right against self-incriminaWon be
asserted?
A. A person who is the accused in a criminal
case may assert the right from the moment
he is asked to tesWfy, i.e., an accused has an
absolute right to be silent; a person who is
a witness but not the accused may assert
the right only when the incriminaWng
quesWon is asked.
Q. PeWWoner was defendant in a civil
case for the annulment of the provincial
budget, the reimbursement of
disbursements already made, and the
payment of damages in the amount
equivalent to the amount already
disbursed. When peWWoner was called by
the plainWff to be a witness in the
annulment case, peWWoner objected on the
ground of self-incriminaWon. The judge,
however, ruled that since the case was civil
in character, the Wme to raise the right
against self-incriminaWon was when the
incriminaWng quesWons were asked and
not before. Decide.
A. This is a civil case; the peWWoner must
wait unWl the incriminaWng quesWon is
asked. Bagadiong v. Gonzales, 94 SCRA 96
(December 28, 1979).
Q. Is the right against self-incriminaWon of
an “accused” available in administraWve
hearings?
A. Yes, if, because of the nature of the
penalty that may be imposed by the
administraWve body, the hearing partakes
of the nature of a criminal proceeding.
Cabal v. Kapunan, Jr., L-19052, December
29, 1962 (“forfeiture of property under
AnW-Grao Law”); Pascual, Jr. v. Board of
Medical Examiners, L-25018, May 16, 1969,
(“revocaWon of license to pracWce
medicine”).
Q. May a government officer whose officer
is under invesWgaWon refuse to tesWfy
when cited as witness in connecWon with a
fact-finding invesWgaWon of anomalies in
the City Government with the object of
filing corresponding charges?
A. No, because the officer is not yet facing
any administraWve charge. Envangelista v.
Jarencio, 69 SCRA 99 (November 29, 1975).
(Dissent: Yes, because ciWng him as a
witness under the circumstances is a mere
transparent expedient to circumvent the
consWtuWonal inhibiWon).
SECTION 18
(1) NO PERSON SHALL BE DETAINED
SOLELY BY REASON OF HIS
POLITICAL BELIEFS AND
ASPIRATIONS.
(2) NO INVOLUNTARY SERVITUDE IN
ANY FORM SHALL EXIST EXCEPT AS
A PUNISHMENT FOR A CRIME
WHEREOF THE PARTY SHALL HAVE
BEEN DULY CONVICTED.
Q. May the State hold "poliWcal
prisoners"?
A. "No person shall be detained solely by
reason of his poliWcal beliefs and
aspiraWons".
Q. What is involuntary servitude?
A. It is every condiWon of enforced or
compulsory service of one to another no
maQer under what form such servitude
may be disguised. Rubi v. Provincial Board,
39 Phil. 660 (1919).
Q. What are some excepWons to the rule
against involuntary servitude?
A. (1) Involuntary servitude may be
imposed as a punishment for a crime
whereof the party shall have been duly
convicted. (Art. II, Sec. 18[2])
(2) In the interest of naWonal defense
all ciWzens may be compelled by law to
render personal military or civil service.
(Art. II, Sec. 4)
(3) A return to work under. "So
imperaWve is the order in fact that it is not
even considered violaWve of the right
against involuntary servitude, as this Court
held in Kaisahan ng mga Manggagawa sa
Kahoy v. Gotamco Sawmills, 80 Phil. 521.
the worker can of course give up his work...
if does not want to obey the order...; but
the order must be obeyed if he wants to
retain his work even of his inclinaWon is to
strike". Samiento v. Tuico, 162 SCRA 676,
685 (1988).
Q. May a person, aoer he has been
separated from the office of court
stenographer, be compelled to transcribe
his court stenographic notes under pain of
contempt without violaWng the prohibiWon
against involuntary servitude?
A. Yes. Obiter dictum in Aclaracion v.
Gatmaitan, 64 SCRA 131 (May 26, 1975).
SECTION 19
1 EXCESSIVE FINES SHALL NOT BE
IMPOSED, NOR CRUEL, DEGRADING OR
INHUMAN PUNISHMENT INFLICTED.
NEITHER SHALL DEATH PENALTY BE
IMPOSED, UNLESS, FOR COMPELLING
REASONS INVOLVING HEINOUS CRIMES,
THE CONGRESS HEREAFTER PROVIDES FOR
IT. ANY DEATH PENALTY ALREADY IMPOSED
SHALL BE REDUCED TO RECLUSION
PERPETUA.
2 THE EMPLOYMENT OF PHYSICAL,
PSYCHOLOGICAL, OR DEGRADING
PUNISHMENT AGAINST ANY PRISONER OR
DETAINEE, OR THE USE OF SUBSTANDARD
OR INADEQUATE PENAL FACILITIES UNDER
SUBHUMAN CONDITIONS SHALL BE DEALT
WITH BY LAW.
Q. When is penalty "cruel, degrading or
inhuman"?
A. It takes more than merely being harsh,
excessive, out of proporWon, or severe for
a penalty to be obnoxious to the
ConsWtuWon. "The fact that the
punishment authorized by the statute is
severe does not make it cruel and
unusual". Expressed in other terms, it has
been held that to come under the ban, the
punishment must be "flagrantly and plainly
oppressive", "wholly disproporWonate to
the nature of the offense as to shock the
moral sense of the community", People v.
Estoista, 93 Phil. 647 (1953) or when they
involve torture or lingering death. People v.
Puda, 133 SCRA 1 (October 31, 1984). The
following may be used as guides"; (1) A
punishment must not be so severe as to be
degrading to the dignity of human beings.
(2) It must not be applied arbitrarily. (3) It
must not be unacceptable to
contemporary society. (4) It must not be
excessive, i.e., it must serve a penal
purpose more effecWvely than a less severe
punishment would. Brennan concurring in
Furman v. Georgia, 408 U.S. 238 (1972).
Note:
The old ConsWtuWon used the
expression "cruel and unusual". The new
ConsWtuWon drops the word "unusual", in
order to allow for development of
penology, and uses instead "degrading and
inhuman" in order to emphasize that what
is at stake is the dignity of the person.

Q. Why did the new ConsWtuWon abolish
the death penalty?
A. For various reasons: (1) it inflicts
traumaWc pain not just on the convict but
also on the family, even if the penalty is not
carried out; (2) there is no convincing
evidence that it acts effecWvely as a
deterrent of serious crime; (3) penology
favors reformaWve rather than vindicWve
penalWes; (4) life is too precious a gio to be
placed at the discreWon of a human judge;
(5) the law itself, by imposing so many
safeguards before death penalty is carried
out, manifests a reluctance to impose the
death penalty.
Q. What happens to death penalty already
imposed?
A. It is reduced to Reclusion Perpetua.
Q. Under ArWcle 248 of the Revised Penal
Code the penalty for murder was reclusion
temporal in its maximum period to death.
In effect this penalty consisted of three
grades: (1) Reclusion Temporal in its
maximum, (2) Reclusion Perpetua, (3)
death. What is the effect of SecWon 19(1)
on this?
A. The effect is that the penalty is reduced
to only two grades, 1 and 2. This conclusion
is reached on the reasoning that the
language of the provision does not abolish
the death penalty but merely prohibits the
imposiWon of death. (This conclusion was
first reached in People v. Gavarra, 155 SCRA
372. The court, however, departed from
this in People v. Masangkay, 155 SCRA
113 and People v. Atencio, 156 SCRA 242,
and People v. InWno, G.R. No. 69934,
September 26, 1988, which divided the
remaining two grades into three new
grades). People v. Muñoz, G.R. Nos. 38968-
70, February 9, 1989; People v. de la Cruz,
216 SCRA 476 (1992).
Q. Now that the ConsWtuWon has abolished
the death penalty, may the legislature
restore it in the future?
A. Yes, if it finds “compelling reasons
involving heinous crimes”. Conversely,
Congress may also abolish the death
penalty even aoer it has reimposed it.
Q. Is the power of Congress to re-impose
the death penalty subsumed under its
plenary legislaWve power?
A. No, because “it is subject to a clear
showing of ‘compelling reasons involving
heinous crimes’”. People v. Echegaray, G.R.
No. 117472, February 7, 1997, 267 SCRA
682, 714.
Q. What does the consWtuWonal exercise of
the Congress’ limited power to re-impose
the death penalty entail?
A. It entails the following: (1) that Congress
define or describe what is meant by
heinous crimes; (2) that Congress specify
and penalize by death, only crimes that
qualify as heinous in accordance with the
definiWon or descripWon set in the death
penalty bill and/or designate crimes
punishable by Reclusion Perpetua to death
in which laQer case, death can only be
imposed upon the aQendance of
circumstances duly proven in court that
characterize the crime to be heinous in
accordance with the definiWon or
descripWon set in the death penalty bill;
and (3) that Congress, in enacWng this
death penalty bill be singularly moWvated
by ‘compelling reasons involving heinous
crimes’”. People v. Echegaray, G.R. No.
117472, February 7, 1997, 267 SCRA 682,
715.
Q. What are “heinous crimes”?
A. R.A. No. 7659 (“Death Penalty Law”;
December 31, 1993”) provides that crimes
are heinous “for being grievous, odious,
and hateful offenses and which, by reason
of their inherent or manifest wickedness,
viciousness, atrocity and perversity are
repugnant and outrageous to the common
standards society”. The Court finds this
definiWon or descripWons “to be a sufficient
criterion of what is to be considered a
heinous crime”. People v. Echegaray, G.R.
No. 117472, February 7, 1997, 267 SCRA
682, 715.
Q. In order for a death penalty bill to be
valid must it posiWvely be proved that
death penalty is a true deterrent and
require that death penalty be the last
resort?
A. No. “Nothing in (ArWcle III, SecWon 19[1])
imposes a requirement that for a death
penalty bill to be valid, a posiWve
manifestaWon in the form of higher
incidence of crime should first be perceived
and staWsWcally proven following the
suspension of the death penalty. Neither
does the said provision require that the
death penalty be restored to as a last
recourse when all other criminal reforms
have failed to abate criminality in society”.
People v. Echegaray, G.R. No. 117472,
February 7, 1997, 267 SCRA 682, 725.
Q. Are there instances when the death
penalty will not be imposed?
A. Yes. Art. 47 of the Revised Penal Code
says: “The death penalty shall be imposed
in all cases in which it must be imposed
under exisWng laws, except when the guilty
person is below eighteen (18) years of age
at the Wme of the commission of the crime
or is more than seventy (70) years of age or
when upon appeal or automaWc review of
the case by the Supreme Court, the
required majority vote is not obtained for
the imposiWon of the death penalty shall be
Reclusion Perpetua. People v. Purazo, G.R.
No. 133189, May 5, 2003, used this
provision as occasion for reducing the
penalty to Reclusion Perpetua.
Q. When Congress characterizes a crime as
“heinous” is such characterizaWon
conclusive on the court?
A. In People v. Purazo, G.R. No. 133189,
May 5, 2003, JusWce Vitug answered this
quesWon thus: “SecWon 19 of the Philippine
Bill of Rights implicitly empowers Congress
to reinstate the death penalty but only if
such re-imposiWon is: a) for compelling
reasons and, b) confined to heinous crimes.
ConsWtuWonalists Fr. Joaquin Bernas asks:
Should not congress instead preserve
judicial discreWon to all capital offenses,
which, even in the words of this Court (in
Echegaray), are equally heinous? Bernas
advances that legislaWve facts are different
from judicial facts, the former being of a
more limited scope since the legislature, in
considering all facts relevant to enacWng a
piece of legislaWon, cannot be expected to
take full account of all possible
situaWons. In contrast, a trial court judge
must point to judicial facts which establish
a link between the offense commiQed and
the reality which the penal law envisions to
be deserving of the supreme penalty.
Senator Arturo TolenWno during the Senate
deliberaWons for the enactment of
Republic Act No. 7659, arguing for an
opWonal rather than a mandatory death
penalty, has indeed acknowledged that
neither the legislaWve qualificaWon or
designaWon of the crime as “heinous” nor
the imposiWon of the death penalty per se
should be conclusive on the judiciary, both
maQers being not solely legislaWve but
likewise judicial in concept and nature”.
It is thus submiQed that the
mandatory character of the death penalty
for heinous crimes prescribed and defined
in Republic Act No. 7659 notwithstanding,
the courts are not precluded, given
miWgaWng factors or condiWons duly
established in evidence, (a) from declaring
the crime charged to be, in fact, non-
heinous in character, or (b) from
concluding that no compelling reasons
exist to warrant the imposiWon of the death
penalty.
Q. Is the death penalty “cruel and
unusual”?
A. The old (1973) Philippine ConsWtuWon,
by recognizing the death penalty, in that it
made the imposiWon of the death penalty
automaWcally reviewable by the Supreme
Court, Art. X, SecWon 5, implicitly admiQed
that per se it is not cruel and unusual. See
People v. Villanueva, 128 SCRA 488 (April 2,
1984). Similarly, the new ConsWtuWon, by
allowing the possibility of its restoraWon,
implicitly admits that it need not be cruel
and inhuman. However, the circumstances
under which a specific law may allow the
death penalty may make it cruel and
unusual under such law. See Furman v.
Georgia, supra.
Q. Is death by legal injecWon cruel and
unusual punishment?
A. No. It is well-seQled in jurisprudence
that the death penalty per se is not a cruel,
degrading or inhuman punishment.
Punishment is so if it involves torture or a
lingering death but the punishment of
death is not cruel, within the meaning of
that word as used in the consWtuWon. It
implies there something inhuman and
barbarous, something more than the mere
exWnguishment of life. People v. Mercado,
G.R. No. 116239, November 29, 2000.
Q. Does the death penalty violate
internaWonal law under the InternaWonal
Covenant on Civil PoliWcal Rights?
A. ArWcle 6 of the Covenant enshrines the
individual’s right to life. Nevertheless,
ArWcle 6(2) of the Covenant explicitly
recognizes that capital punishment is an
allowable limitaWon on the right to life,
subject to the limitaWon that it be imposed
for the ‘most serious crimes’. Pursuant to
ArWcle 28 of the Covenant, a Human Rights
CommiQee was establish and under ArWcle
40 of the Covenant, States ParWes to the
Covenant are required to submit an iniWal
report to the CommiQee on the measures
they have adopted which give effect to the
rights recognized within the Covenant and
on the progress made on the enjoyment of
those rights within one year of its entry
into force for the State Party concerned
and thereaoer, aoer five years. On July 27,
1982, the Human Rights CommiQee issued
General Comment No. 6 InterpreWng
ArWcle 6(2) to (6) that State parWes are not
obliged to abolish the death penalty totally,
they are obliged to limit its use and, in
parWcular, to abolish it for other than the
‘most serious crimes’.
The Second OpWonal
Protocol to the InternaWonal Covenant on
Civil and PoliWcal Rights aiming at the
AboliWon of the Death Penalty was
adopted by the General Assembly on
December 15, 1989. The Philippines
neither asserWon of our obligaWon under
the Second OpWonal Protocol is
misplaced”. People v. Mercado, G.R. No.
116239, November 29, 2000.
Q. Does the death penalty violate equal
protecWon since it is most ooen used
against the poor?
A. This statement is too sweeping to merit
further serious consideraWon. Anyone,
regardless of his economic status in life,
may commit a crime. While there may be
perceived imbalances in the imposiWon of
penalWes, there are adequate safeguards in
the ConsWtuWon, the law, and procedural
rules to ensure due process and equal
protecWon of the law. People v. Mercado,
G.R. No. 116239.
Q. What is the duty of the judge when an
accused pleads guilty to a capital offense?
A. He must not immediately impose the
penalty but must first look into the
evidence to see if death is the proper
penalty. People v. Vinuya, G.R. No. 125925,
January 28, 1999.
Q. When is a fine “excessive”?
A. It is excessive when under anu
circumstance it is disproporWonate to the
offense.
Q. PeWWoner claims that under his
convicWon on twelve counts he would be
made to serve 92 years, a cruel and
unusual punishment. Decide.
A. Nonsense. By ArWcle 70(4), R.P.C.,
peWWoner would not be made to serve
more than three Wmes the most severe
penalty. Veniegas v. People, G.R. Nos.
57601-06, July 30, 1982.
Q. The Philippine Medical AssociaWon
challenges the penalWes under the
Generics Act ranging from a reprimand to a
fine of not less than P10,000 and the
suspension of the physician’s license to
pracWce his profession for one year. It is
alleged that this violates the probaWon
against cruel and unusual punishments.
A. PenalWes are required because laws
must have teeth. The penalWes are no more
objecWonable than those that are imposed
for instance on misbehaving lawyers. Del
Rosario v. Bengzon, G.R. No. 88265,
December 21, 1989.
Q. If a court finds a punishment aQached to
a law cruel, degrading or inhuman, or a fine
excessive, may a person be convicted
under such law?
A. No. Without a valid penalty, the law is
not a penal law.
SECTION 20
NO PERSON SHALL BE IMPRISONED FOR
DEBT OR NON-PAYMENT OF A POLL TAX.
Q. Explain the prohibiWon against
imprisonment for debt.
A. The cases touching on the subject reveal
that the consWtuWonal prohibiWon, stated
in full, means this: No person may be
imprisoned for debt in virtue of an order in
a civil proceeding, either as a subsWtute for
saWsfacWon of a debt or as a means of
compelling saWsfacWon; but a person may
be imprisoned as a penalty for a crime
arising from a contractual debt and
imposed in a proper criminal proceeding.
Q. What is the meaning of “debt” in the
provision?
A. It means any liability to pay money
growing out of a contract, express or
implied.
Q. May a person be imprisoned for
fraudulent debt?
A. Yes, but only if (1) the fraudulent debt
consWtutes a crime (e.g., estafa) and (2) the
debtor has been duly convicted.
Otherwise, no.
Q. Does the conversion of the monetary
indemnity, imposed as part of a criminal
penalty, into subsidiary imprisonment
violate the prohibiWon of imprisonment foe
debt?
A. No. The obligaWon to indemnify was not
ex contractu but ex delicto. Alejo v. Judge
Inserto, AM 1098 CFI, May 31, 1976.
Q. B.P. Bldg. 22, the anW-bouncing check
law, is challenged on the ground that it
violates the prohibiWon of imprisonment
for non-payment of contract. Decide.
A. The gravamen of the offense is not the
non-payment of a debt but the putng into
circulaWon of a worthless check. Lozano v.
MarWnez, 146 SCRA 323 (1986).
Q. SecWon 13 of P.D. No. 115 says: “The
failure of an entrustee to turn over the
proceeds of the sale of the goods,
documents or instruments covered by a
trust receipt to the extent of the amount
owing to the entruster or as appears in the
trust receipt or to return said goods,
documents or instruments if they were not
sold or disposed of in accordance wit the
terms of the trust receipt shall consWtute
the crime of estafa”… Does this violate the
prohibiWon of imprisonment for debt?
A. With the promulgaWon of P.D. 115 there
is no more doubt that such violaWon
consWtutes estafa. Thus, imprisonment
here is not for non-payment pf contractual
obligaWon but for the criminal act. Lee v.
Judge Rodil, G.R. No. 80544, July 5, 1989.
Q. What is a “poll Tax”?
A. A poll tax can be understood as the
cedula tax or residence tax. The
ConsWtuWon does not prohibit the cedula
tax but it prohibits imprisonment for non-
payment of the cedula or residence tax.
A poll tax may also be understood
as a tax the payment of which is made a
requirement for the exercise of the right of
suffrage. The imposiWon of a poll tax in this
sense is prohibited by ArWcle V, SecWon 1,
which disallows “literacy, property, or
other substanWve requirement” for the
exercise of suffrage.
SECTION 21
NO PERSON SHALL BE TWICE PUT
IN JEOPARDY OF PUNISHMENT FOR THE
SAME OFFENSE. 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.
Q. What are the requisites for a valid
defense of double jeopardy?
A. Under present law, to raise the defense
of double or second jeopardy, three
requisites must be shown: (1) a first
jeopardy must have aQached prior to the
second; (2) the first jeopardy must have
terminated; (3) the second jeopardy must
be for the same offense as that in the first.
These three requisites provide a
convenient division for the discussion of
the subject.
Q. When does jeopardy of punishment
aQached?
A. Jeopardy aQaches: (a) upon a good
indictment, (b) before a competent court,
(c) aoer arraignment, (d) aoer plea. People
v. Ylagan, 58 Phil. 851 (1933).
AOachment of jeopardy
Q. Accused filed a wriQen manifestaWon
and plea of not guilty while the Military
Commission was not in session. Did this
place him in jeopardy of convicWon?
A. No. There was no valid plea because the
Commission was not in session. Jimenez v.
Military Commission No. 34, 102 SCRA 39
(L-54577, January 15, 1981).
Q. A, aoer having pleaded guilty, is allowed
to present evidence in miWgaWon. The
evidence he presents, however, amount to
complete self-defense and the court
acquits him. Prosecuted a second Wme for
the same offense, he pleads double
jeopardy. Decide.
A. The defense of second jeopardy is not
proper because the presentaWon of
evidence of complete self-defense
amounted to a withdrawal of his original
plea. And since no new plea was entered,
there was no first jeopardy. People v.
Basilican, August 31, 1966.
Q. Upon arraignment, accused pleaded not
guilty and immediately moved to quash the
complaint on the ground that it charged no
offense. MoWon was granted, and
correctly. Subsequently, an amended
complaint was filed. Is there double
jeopardy?
A. No, because the defecWve complaint did
not place the accused in first jeopardy.
People v. Judge Consulta, L-41251, March
31, 1976.
Q. In the above case, suppose that the
informaWon was in fact valid, could the
case be refiled?
A. Yes, because the moWon to quash on the
ground alleged was a waiver of the right
against double jeopardy. Id.
Q. A, accused before a municipal court,
moves for dismissal on the ground that the
offense is cognizable only by the CFI.
MoWon is granted and, as a maQer of fact,
the offense is cognizable only by the CFI.
When the case is filed with the CFI, accused
pleads second jeopardy. Decide.
A. The defense is not proper. Since the first
court had no jurisdicWon, the accused was
not in first jeopardy under the municipal
court.
Q. A, accused before a municipal court,
moves for dismissal on the ground that the
offense is cognizable only by the CFI.
MoWon is granted and, as a maQer of fact,
the offense is cognizable only by the CFI.
When the case is filed with the CFI, accused
pleads second jeopardy. Decide.
A. The defense is not proper. Since the first
court had no jurisdicWon, the accused was
not in first jeopardy under the municipal
court.
Q. In a peWWon for early arraignment, for
the purpose of being able to leave for work
outside the country, the accused waived
his right to the defense of double jeopardy
should the charge against him be amended
from homicide to murder. The peWWon for
early arraignment was granted and, upon
arraignment, the accused pleaded not
guilty to the charge of homicide.
Subsequently the charged was amended o
murder. Upon his return, accused pleaded
double jeopardy claiming that the original
charge of homicide was dismissed without
his consent when the new informaWon for
murder was filed. Is there double
jeopardy?
A. When accused waived the defense of
double jeopardy, he had not yet been
arraigned. Hence, jeopardy had not yet
aQached and consequently he had nothing
to waive. The waiver had no legal effect.
Hence, the defense of double jeopardy was
not roper. But since accused pleaded only
to the charge of homicide and was never
arraigned for murder, he can only be
convicted for homicide. People v. Ibasan,
Sr., 129 SCRA 685 (June 22, 2984).
Q. Is double jeopardy a proper defense
where the accused had been acquiQed
without trial but only aoer pre-trial where
the prosecuWon raised objecWons?
A. No. Jeopardy did not aQach. The
prosecuWon was denied a day in court.
Hence, the acquiQal was rendered without
jurisdicWon. People v. Judge SanWago, G.R.
No. 80778, June 20, 1989.
Termina-on of jeopardy
Q. How is first jeopardy “terminated” in a
manner that saWsfies the second element
of the defense of double jeopardy?
A. (1) By acquiQal; (2) by final convicWon;
(3) by dismissal without express consent of
the accused; (4) by “dismissal” on the
merits.
NOTE:
“as a general rule, the dismissal or
terminaWon of the case aoer arraignment
and plea of the defendant to a valid
informaWon shall be a bar to another
prosecuWon for the offense charged, or for
any aQempt to commit the same or
frustraWon thereof, or for any offense
which necessarily includes or is necessarily
included in the complain or informaWon
(SecWon 9, Rule 113). However, an appeal
by the prosecuWon from the order of
dismissal (of the criminal case) by the trial
court shall not consWtute double jeopardy
if: (1) the dismissal is made upon moWon,
or with the express consent, of the
defendant; and (2) the dismissal is not an
acquiQal or based upon consideraWon of
the evidence or of the merits of the case;
and (3) the quesWon to be passed upon by
the appellate court is purely legal so that
should the dismissal be found incorrect,
the case would have to be remanded to the
court of origin for further proceedings, to
determine the guilt or innocence of the
defendant”, People v. City of Manila, 154
SCRA 175 (1987), reiteraWng People v.
Desalisa, et al., 125 Phil. 27 (1966); People
v. Judge Villalon, G.R. No. 43659,
December 21, 1990.
Q. A, is accused before a municipal court.
Aoer plea, the prosecuWon asks for
dismissal on the ground that the municipal
court has no jurisdicWon. Accused opposes
the moWon but the judge dismisses the
case for want of jurisdicWon. It turns out,
however, that the municipal court and the
accused pleads double jeopardy. Decide.
A. The defense is proper because the
dismissal was without the express consent
of the accused.
Q. A is accused before a CFI. Aoer
innumerable postponements against the
wishes of the accused, accused moves for
dismissal for denial of the right to a speedy
trial. Dismissal is granted. May the case be
refiled?
A. No. Dismissal for denial of the right to a
speedy trial is a dismissal on the merits and
amount to an acquiQal.
Q. Aoer several postponements because of
the in-availability of witnesses, accused
moved for the dismissal of the case on the
ground of denial of speedy trial. Aoer the
judge verbally dismissed the case and
proceeded to hear another case, the
witness arrived. Upon explanaWon by the
prosecuWon, the judge resumed hearing
the verbally dismissed case. Double
jeopardy?
A. No. The verbal dismissal is not final unWl
wriQen and signed by the judge. Rivera, Jr.
v. People, G.R. No. 93219, August 30, 1990.
Q. There were delays in the trial which
were beyond the control both accused and
prosecuWon. At a certain stage, the case
was dismissed with the consent of the
accused. Later the case was reinstated.
Was there double jeopardy?
A. No. As stated, first, the delays were not
unreasonable; hence, there was no denial
of the right to speedy trial. Second, the
dismissal was with the consent of the
accused. Hence, the reinstatement did not
violate the right against double jeopardy.
Almaria v. CA, G.R. No. 127772, March 22,
2001.
Q. Upon the instance if the accused, the
case was dismissed on the ground of
violaWon of the right to a speedy trial. Upon
examinaWon of the facts, however, the
court found that the delays were jusWfiable
and so the case was reinstated. Was there
double jeopardy.
A. No. The evidence shows that there was
no denial of the right to a speedy trial and
the dismissal was upon the instance of the
accused. Alamrio v. Court of Appeals, G.R.
No. 127772, March 22, 2001.
A. No. The dismissal contemplated by the
Rules is one which finally terminates and
definitely disposes of a case. Here the
dismissal by the municipal court was
precisely to give way to the filing of a
proper complaint. Moreover, in dismissing
the case instead of rendering a decision on
the merits, as was his duty to do, the
municipal judge commiQed grave abuse
of discreWon. Hence, his order of dismissal
was invalid and did not terminate the case.
People v. Mogol, 131 SCRA 296 (August 24,
1984); but see the dissent of Makasiar, J.
Q. When the prosecuWon moved for the
dismissal of the case, the accused through
counsel agreed explicitly. The judge
dismissed the case. In the aoernoon the
accused had second thoughts and filed a
manifestaWon objecWng to the dismissal.
The next day, the accused moved for the
reconsideraWon of the dismissal but the
moWon was denied. When subsequently a
new informaWon was filed, the accused
pleaded double jeopardy. Proper?
A. No. The dismissal was not on the merits
and was with the consent of the accused.
People v. Pilpa, L-302250, 22 September
1977 (78 SCRA 81).
Q. Arraigned on 19 December 29177,
peWWoner pleaded not guilty. On the day of
trial, 25 January 1978, the Fiscal asked for
postponement to 22 February 1978
because of the absence of the accused. On
22 February 1978 the Fiscal asked for
postponement to 28 March 1978. On 28
March 1978, the Fiscal did not appear. A
private prosecutor asked for
postponement in order to give the Fiscal a
chance to appear. When the moWon was
denied, the accused asked for dismissal of
the case on the ground of denial of a
speedy trial. The judge dismissed the case
on such ground and on the same day. On
28 March 1978 the judge set aside his
dismissal and set the trial for 5 June 1978.
Accused filed a moWon for reconsideraWon
alleging that the prior dismissal was
equivalent to acquiQal and thus the
reinstatement of the case amounted to
second jeopardy for the same offense.
Decide.
Q. Accused of grave coercion, the
peWWoner pleaded not guilty on January
23, 1979. Aoer a number of delays caused
either by the complainant or the
prosecuWon, trial was again set for August
16, 1979. Postponement again was
requested because of alleged sickness of
complainant. The defense opposed
postponement invoking the right to a
speedy trial. The judge “provisionally”
dismissed the case because the case had
“been dragging all along and the accused
[had been] ready for the hearing”. Later,
the Fiscal moved to revive the case on the
ground that the dismissal was with the
conformity of the accused. The accused
pleaded double jeopardy. Decide.
A. The defense of double jeopardy is
proper. A dismissal on the ground of denial
of the right to a speedy trial amounts to an
acquiQal. The use of the word “provisional”
does not change the legal effect of the
dismissal. Esmena v. Pogoy, 102 SCRA 861,
866-867 (L-54110, February 20, 1981),
ciWng Esguerra v. De la Costa, 66 Phil. 134
and Gandicela v. Lutero, 88 Phil. 299.
NOTE:
Note, however, that when the
dismissal of the case clearly consWtutes
abuse of discreWon amounWng to lack of
jurisdicWon, the dismissal, even if made on
the merits, is invalid and is therefore no bar
to a reinstatement of the case. People v.
Pablo, 98 SCRA 301 (L-37271, June 25,
1980). Here the judge dismissed the case
aoer arbitrarily denying prosecuWon’s
moWon for conWnuance.
 Similarly, if the judgement of
acquiQal is void for having been given
without jurisdicWon, the judgement cannot
be a basis for a plea of double jeopardy.
People v. Court of Appeals, 101 SCRA 450,
467 (L-54641, November 28, 1980).
Q. Accused was charged with estafa before
a Military Commission. Aoer the
prosecuWon had presented evidence and
on the day the accused was to present
evidence, one of his co-accused presented
a memorandum of the Secretary which had
apparently been made so he could study
the case. Aoer study the Secretary of
NaWonal Defense direcWng the withdrawal
of the case from the Military Commission
pursuant to P.D. No. 39. The direcWve of the
Secretary was apparently made so he could
study the case. Aoer the study the
Secretary withdraw his previous order and
directed the Commission to proceed with
the case. Accused contended that the
previous withdrawal amounted to
terminaWon of the case and hence the
reinstatement of the case consWtuted
double jeopardy. Decide.
A. Under military law, a decision of a
military tribunal, be it of acquiQal or if
convicWon, or dismissal, is merely
recommendatory and subject to review by
the convening authority, the review
boards, and the reviewing authority. A
military commission acts merely as a
commissioner who takes the evidence and
reports thereon with his recommendaWon.
Hence, in the instant case, the acWon of the
Secretary was merely a conWnuaWon of the
proceeding before the Commission and did
not terminate the case. Flores v. Enrile, G.R.
No. 38440, July 20, 1982.
Q. Where the City Fiscal has conducted a
preliminary invesWgaWon and dismissed
the case, may the city court conduct
another preliminary invesWgaWon without
violaWng the right against double jeopardy?
A. Yes. An order of dismissal in a
preliminary invesWgaWon does not in any
way terminate a case. As long as the crime
has not yet prescribed, the city court may
conduct a preliminary invesWgaWon.
Tandoc v. Judge, G.R. Nos. 59241-44, July 5,
1989.
Q. Can an order of dismissal of a criminal
case upon moWon of the accused aoer
arraignment for the failure of the
prosecuWon to appear on the first day of
hearing be a bar to another prosecuWon for
the same offense?
A. Dismissal at the instance of the accused
amount to acquiQal and therefore
becomes a bar to subsequent prosecuWon
in instance when the dismissal is premised
on violaWon of the right of the accused to a
speedy trial. In the instant case, the judge
dismissed the case on the first date set for
hearing. What he should have done was
reset the case for another day. Under the
circumstances therefore there is no bar to
conWnuing the case. People v. Hon.
Declaro, G.R. No. 64362, February 9, 1989.
Q. Where the accused was arraigned,
pleaded not guilty, and was tried upon a
valid and sufficient informaWon but the
case was dismissed by the trial court on the
ground that the informaWon was not
sufficient and without the consent and not
upon the moWon of the accused, may the
case be reinstated?
A. Although the dismissal is a miscarriage
of jusWce (because the informaWon was
valid), the case may not be reinstated.
People v. Judge Laggui, G.R. Nos. 76262-63,
March 16, 1989.
Waiver of estoppel
Q. Upon moWon of the defendant, the case
was dismissed on the ground, alleged by
the defense, that the prosecuWon had
failed to prove territorial jurisdicWon.
When the prosecuWon appealed the
dismissal, the defendant pleaded double
jeopardy. Decide.
A. Defendant’s moWon to dismiss for lack of
jurisdicWon consWtuted waiver of the
defense of double jeopardy. People v.
Salico, 84 Phil, 722 (1949).
Q. A, prosecuted in a military court,
assailed the jurisdicWon of the court
marWal. His contenWon was sustained, and
when the case was subsequently filed with
a civil court, he pleaded double jeopardy
alleging that the military court had
jurisdicWon. Decide.
A. Defendant is estopped from asserWng
the jurisdicWon of the military court.
Q. Aoer a not guilty plea and before the
start of the trial, the accused moved to
dismiss the case on the ground that the
facts alleged in the informaWon did not
consWtute an offense. Dismissal was
granted. The Supreme Court reversed.
Upon reinstatement of the case, the
accused pleaded double jeopardy. Decide.
A. No double jeopardy. The dismissal was
not on the merits (because no evidence
had yet been presented) and it was with
the consent, upon the moWon, of the
accused. People v. Cuevo, 104 SCRA 312,
320 (L-27607, May 7, 1981).
NOTE:
More properly, this is a case of
estoppel. The accused claimed the
informaWon did not allege facts
consWtuWng an offense. Hence, he was
saying he was not in jeopardy under such
informaWon).
Q. The accused was charged and duly
arraigned for homicide with the CFI.
Subsequently and for the same act he was
charged with murder and arraigned before
a Military Commission. He pleaded not
guilty. Later, pleading double jeopardy, the
accused sought to prohibit the Commission
from trying his case. Proper?
A. No. Since neither case has as yet been
terminated, the defense of double
jeopardy is premature. Moreover, by
pleading not guilty to the second charge
instead of moving to quash, the accused
waived the defense of double jeopardy.
Silvestre v. Military Commission, G.R. No.
46366, March 8, 1978; Buscayno & Sison v.
Military Commission, 109 SCRA 273 (1981).
Q. Aoer several postponements, some in
moWon of the accused others on that of the
prosecuWon, the case, before trial could
start, was provisionally dismissed by
agreement of the parWes. Seven years later,
the case was refiled. The accused, pleading
that the dismissal was on the ground of
denial of the right to speedy trial, claimed
double jeopardy. Decide.
A. By consisWng to the provisional
dismissal, the accused waived his right to
the defense of double jeopardy. What he
should have done was to ask for immediate
trial and, if the prosecuWon could not
proceed, ask for dismissal on the ground of
denial of the right to speedy trial.
Moreover, the delay of seven years was not
a delay of the trial because the trial had not
yet started. Andres v. Judge Cacdac, Jr.,
March 29, 1982.
Same offense
Q. When is the second offense charged the
same as the first offense?
A. In order to determine whether the two
charges are idenWcal one test used is what
is someWmes referred to as “the same
evidence test”: Whether the evidence
needed in the one case will support a
convicWon in the other. E.g., U.S. v. Tan Oco,
34 Phil. 772, 783 (1916). Commentators
note that this test was found to be correct
only in a general sense and, hence, the
Rules of Court have spelled it out more in
detail in SecWon 9 of Rule 117. 4 MORAN,
COMMENTS ON THE RULES OF COURT 213
(1963); FRANCISCO, THE REVISED RULES OF
COURT: CRIMINAL PROCEDURE 563 (1963).
The test now is whether one offense is
idenWcal with the other or whether it is an
aQempt or frustraWon of the other or
whether one offense necessarily includes
or is necessarily included in the other.
What this test shows is that idenWty of
offenses does not require one-to-one
correspondence between the facts and law
involved in the two charges. It is necessary,
however, that one offense is completely
included in the other. Thus, while physical
injury us not idenWcal with aQempted
homicide, for purposes of double jeopardy
physical injury is “the same” as aQempted
homicide (which alleges inflicted injury)
because physical injury is necessarily
included in such aQempted homicide.
Q. X performs an act resulWng in the
complex crime of less serious physical
injuries and assault upon a person in
authority. He is prosecuted for less serious
physical injuries, is convicted, and serves
sentence. Subsequently he is charged with
assault upon a person in authority. Double
jeopardy?
A. Yes. The consWtuWonal meaning of “the
same offense” includes “any offense which
necessarily includes or is necessarily
included in the offense charged if the
former complaint or informaWon”. Tacas v.
People, L-37406, August 31, 1976.
Q. Accused is charged under RPC 189, (1)
for selling pumps to which he had given the
appearance of those of another’s. since
there was no proof that he had
manufactured the pumps himself, he was
acquiQed. However, he was ordered
prosecuted under RPC 188, (2) for
knowingly selling goods with fraudulent
trademark. He pleaded double jeopardy.
Decide.
A. The second informaWon is for a different
offense for which he could not have been
convicted under the first. Sy Y. Lim v. Court
of Appeals and Judge Caguioa, March 30
1982. (The main opinion by De Castro, J. is
not a masterpiece of clarity. Read Aquino,
J.’s opinion instead).
Q. Convicted of physical injuries through
reckless imprudence, accused was
subsequently charged with damage to
property through the same act of reckless
imprudence, both under ArWcle 365, R.P.C.
Double jeopardy?
A. Yes. The essence of criminal negligence
under ArWcle 365 is the imprudent or
negligent act. Hence, the second jeopardy
is for the same offense. Buerano v. Court of
Appeals, G.R. No.30269, July 19, 1982,
ciWng People v. Buan, 22 SCRA 1383 (March
29, 1968).
Q. To avail of the defense of double
jeopardy must the second offense charged
in every case be the same as the first
offense?
A. The second sentence of SecWon 22 says:
“If an act is punished by a law and an
ordinance, convicWon or acquiQal under
either shall consWtute a bar to another
prosecuWon for the same act”. Hence, in
this case the offenses need not be the
same, provided, however, that they flow
from the same act. Yap v. Lutero, L-12669,
April 30, 1959.
The situaWon is different when one act
violates two different statutes or two
different provisions of a statutes. The rule
in such a case is that if the one act results
in two disWnct offenses, prosecuWon under
one is not a bar to prosecuWon under the
other. The test “is not whether the
defendant has already been tried for the
same act, but whether the defendant has
already been put in jeopardy for the same
offense”. People v. Cabrera, 43 Phil. 82, 97
(1992).
Q. Prosecuted for unlawful installaWon of
electrical wiring under an ordinance of
Batangas City, accused was spared through
dismissal for prescripWon. For the same act,
accused was later prosecuted for theo or
electricity under ArWcle 308 of the Revised
Penal Code. To the plea of double jeopardy,
the state answered that the second
prosecuWon was not for the same offense.
Decide.
A. The second sentence of SecWon 21 does
not require that the second prosecuWon be
for the same offense. It is enough that it be
for the same act. “The discussions during
the 1934-1935 ConsWtuWonal ConvenWon
show that the second sentence was
inserted precisely for the purpose of
extending the consWtuWonal protecWon
against double jeopardy to a situaWon
which would not otherwise be covered by
the first sentence”. (p. 305) People v.
Relova, 148 SCRA 292 (March 6, 1987). This
is a fully discussed decision which was
based on Yap v. Lutero, 105 Phil. 1307
(1959) which was not reported in full.
Q. For the same act of issuing three
bouncing checks, accused was prosecuted
first under SecWon 1 of B.P. Bldg. 22 and
next under ArWcle 315, par. 2(d) of the
Revised Penal Code. He pleads double
jeopardy.
A. The two laws (not merely ordinance)
punish two disWnct offenses. The evidence
required to prove one offense is not the
same as the evidence required to prove the
other. Hence, there is no double jeopardy.
Ada v. Judge Virola, G.R. Nos. 82346-47,
April 17, 1989. [Elements of one not
necessarily included in the other?]
NOTE:
True it is that generally, contempt
proceedings are characterized as criminal
in nature, but the more accurate juridical
concept is that contempt proceedings may
actually be either civil or criminal, even if
the disWncWon between one and other may
be so thin as to be almost impercepWble.
But it does exist in law. It is criminal when
the purpose is to vindicate the authority of
the court and protect its outraged dignity.
It is civil when there is failure to do
something ordered by a court to be done
for the benefit of a party. (3 Moran, Rules
of Court, pp. 343-344, 1970 ed.; see also
Perkins v. Director of Prisons, 58 Phil. 272;
Harden v. Director of Prisons, 81 Phil. 741).
And with this disWncWon in mind, the fact
that the injuncWon in the instant case is
manifestly for the benefit of plainWffs
makes of the contempt herein involved
civil, not criminal. Accordingly, the
conclusion is inevitable that appellees have
been virtually found by the trial court guilty
of civil contempt, not criminal contempt,
hence the rule on the double jeopardy may
not be invoked. Converse Rubber Corp. v.
Jacinto Rubber, 97 SCRA 158. 182-183
(April 28, 1980).
Q. If the accused is charged with homicide
and pleads not guilty, may the charge be
dismissed in order to amend it to murder?
A. No. That would place him in second
jeopardy. Dionaldo v. Dacuycuy, 108 SCRA
736 (October 30, 1981).
NOTE:
See also Olaguer v. Military
Commission, 150 SCRA 144 (1987); Cruz v.
Enrile, 160 SCRA 700 (1987), and Tan v.
Barrios, G.R. Nos. 95481-82, October 18,
1990 which are discussed under ArWcle III,
SecWon 14, supra.
Q. What is the rule on “supervening facts”?
A. This is another excepWon to the
requirements of sameness of offense. In
Melo v. People, 85 Phil. 766 (1950), Chief
JusWce Moran said that the rule for the
determinaWon of idenWty of offenses “did
not apply ... when the second offense was
not in existence at the Wme of the first
prosecuWon, for the simple reason that in
such a case there is no possibility for the
accused, during the first prosecuWon, to be
convicted for an offense that was then
inexistent”. Id. at 769. “[W]here aoer the
first prosecuWon a new fact supervenes for
which the defendant is responsible, which
changes the character of the offense and
together with the facts exisWng at the Wme,
consWtute a new and disWnct offense, the
accused cannot be said to be in second and
disWnct offense, the accused cannot be said
to be in second jeopardy if indicted for the
new offense”. Id. at 769-770, ciWng 15 AM.
JUR. 66. People v. Buling, L-13315, April 27,
1960, however, added the qualificaWon
that where the exact nature of the injury
could have been discovered, but was not,
because of the incompetence of the
physician, the subsequent discovery of the
real extent of the injury would not be a
supervening fact which could warrant the
applicaWon of the Melo doctrine.
Q. Charged with inflicWng physical injuries
that would require 5 to 9 days medical
aQendance, the accused was convicted.
Subsequently, when the vicWm developed
a permanent scar and deformity on the
face, a more serious charge was filed.
Double jeopardy?
A. No. The scar and deformity were
supervening facts not in existence at the
Wme of the first charge and could not have
been foreseen. People v. Adil, L-41863, 25
April 1977 (76 SCRA 462).
Q. On October 18, 1972, Gapay was
charged with serious physical injuries
through reckless imprudence commiQed
on October 17, 1972. On October 18, the
vicWm died. On October 20, Gapay was
arraigned on charges of serious physical
injuries through reckless imprudence,
pleaded guilty, was sentenced, and there
and then commenced serving sentence. On
October 24, an informaWon for homicide
through reckless imprudence was filed.
Gapay pleaded double jeopardy. Does the
doctrine on “supervening fact” apply?
A. No. No fact supervened “aoer the
arraignment and convicWon of the
accused”. People v. City Court, G.R. No.
36342, April 27, 1983. (Concurring,
GuWerrez, J. points out that there is no
sufficient showing that the hasty
arraignment was the result of collusion and
fraud amounWng to denial of due process).
Appeals
Q. May the prosecuWon appeal a judgment
of acquiQal?
A. No. “No error, however flagrant,
commiQed by the court against the State,
can be reserved by it for decision by the
Supreme Court when the defendant had
once been placed in jeopardy and
discharged even though the discharge was
the result of the error commiQed”. State v.
Rook, 49 L.R.A. 186, 61 Kan 382, 59 Pac.
653, quoted in People v. Ang Cho Kio, 95
Phil. 475, 480 (1954). See also People v.
Pomeroy, 97 Phil. 927 (1955).
A judgment of acquiQal is
immediately final. A judgment of
convicWon is final when the period for
appeal has lapsed or when the sentence
has been totally or parWally served or when
the defendant has expressly waived his
right to appeal. SecWon 7, Rule 120,
Revised Rules of Court; Bustamante v.
Maceren, 48 SCRA 155 (1972).
Q. Aoer trial on the merits, the accused
was acquiQed for insufficiency of the
evidence against him in the cases for
murder and frustrated murder and on the
finding, in the illegal carrying of firearm,
that the act charged did not consWtute a
violaWon of law. But the State through a
peWWon for cerWorari would want his
acquiQal reversed. Decide.
A. A reading of the quesWoned decision
shows that respondent judge considered
the evidence received at trial. While the
appreciaWon thereof may have resulted in
possible lapses in evidence evaluaWon, it
nevertheless does not detract from the fact
that the evidence was considered and
passed upon. This requirement of excess or
lack of jurisdicWon. As such, it becomes an
improper object or cerWorari. Errors of
judgment are not to be confused with
errors in the exercise of jurisdicWon. People
v. Judge Velasco, G.R. No. 127444,
September 13, 2000.
The special civil acWon for cerWorari
is intended for the correcWon of errors of
jurisdicWon only or grave abuse of
discreWon amounWng to lack or excess of
jurisdicWon. Its principal office is only to
keep the inferior court within the
parameters of its jurisdicWon or to prevent
it from commitng such a grave abuse of
discreWon amounWng to lack or excess of
jurisdicWon. It is not a remedy for errors of
judgment. People v. CA, G.R. No. 142051,
February 24, 2004.
Q. In the face of the prohibiWon of double
jeopardy, how can one jusWfy the
reopening of the Galman case aoer the
acquiQal of the accused?
A. Where there was travesty of jusWce,
there was no valid trial and therefore no
terminaWon of the first jeopardy. Galman v.
Sandiganbayan, 144 SCRA 43 (1986). The
decision here rested on the premise that
the proceedings in the Sandiganbayan
were characterized by grave abuse of
discreWon amounWng to loss of jurisdicWon.
Hence, the proceedings were invalid and
the “acquiQal” did not really acquit and
therefore did not terminate the case.
NOTE:
Where the prosecuWon has not
been given due process, acquiQal or
dismissal is no bar to refiling of the case.
People v. Bocar, 138 SCRA 166 (August 16,
1985).
Q. Aoer a new trial on the ground of newly
discovered evidence, the judge acquiQed
the accused. The judgment, however, was
erroneous because the evidence was not
really new. May the State appeal the
acquiQal?
A. No. judgment of acquiQal, even if
erroneous, ends the case finally. People v.
Hernando, 108 SCRA 121 (October 9,
1981).
Q. When an accused appeals a convicWon,
may the reviewing court impose on him a
penalty higher than that imposed in the
decision appealed by him?
A. The rule in the Philippines, since Trono v.
United States, 11 Phil. 726 (1905), is that
when an accused appeals his convicWon, he
waives his right to the plea of double
jeopardy. What, however, is the extent of
that waiver? In Trono, the accused had
been prosecuted for a higher offense but
was convicted for a lower offense. Hence,
equivalently, he had been acquiQed of the
higher offense. Was his appeal a waiver of
this acquiQal?
The Court answered in the
affirmaWve and ruled that a penalty higher
than that of the original convicWon could
be imposed on him.
Q. Accused was prosecuted for estafa and
was convicted under ArWcle 315, 2(d),
R.P.C. (by issuance of bouncing checks). On
appeal the Court if Appeals penalized the
accused instead under ArWcle 315, 2(a)
(through false pretenses or similar deceits).
Accused now contends that since the trial
court had said that ArWcles 315, 2(a) could
not be applied to him, he equivalently was
acquiQed of that offense and the appellate
court could no longer convict him under
such provision. He claimed double
jeopardy. Decide.
A. “When the peWWoners appealed from
the sentence of the Trial Court, they waived
the consWtuWonal safeguard against double
jeopardy and threw the whole case open to
the review of the Appellate Court, which is
then called upon to render such judgment
as the law and jusWce dictate, whether
favorable or unfavorable to them, and
whether they are made the subjects of
assignment of error or not”. Ko Bu Lin v.
Court Appeals, G.R. No. 57170, November
19, 1982.
NOTE:
When an accused is convicted for a
lesser offense on a plea of guilty to that
lower offense, the convicWon is not a bar to
a second prosecuWon if the plea to a lesser
offense was made without the consent of
the Fiscal. People v. Villarama, Jr., G.R. No.
99287, June 23, 1992.
The discharge of an accused in
order to make him a state witness, even if
it is erroneous for failure to comply with all
the requirements of SecWon 9 of Rule 119,
is equivalent to an acquiQal and is a bar to
reinstatement of the case against him.
However, if “the accused so discharged fails
or refuses to tesWfy against his co-
defendant…. The defense of double
jeopardy is withdrawn from him and
becomes unavailable to him”. Bogo-
Medellin Milling Co. v. Son, 209 SCRA 329
(1992).
SECTION 22
NO EX-POST FACTO LAW OR BILL OF
ATTAINDER SHALL BE ENACTED.
Q. What is an ex post facto law?
A. An ex post facto law has been defined as
one – (a) Which makes an acWon doe
before the passing of the law and which
was innocent when done criminal, and
punishes such acWon; or (b) Which
aggravates a crime or makes it greater than
when it was commiQed; or (c) Which
changes the punishment and inflicts a
greater than the law annexed to the crime
when it was commiQed; (d) Which alters
the legal rules of evidence and receives less
or different tesWmony than the law
required at the Wme of the commission of
the offense in order to convict the
defendant. Mekin v. Wolfe, 2 Phil. 74
(1903)); € Assumes to regulate civil rights
and remedies only but in effect imposes a
penalty or deprivaWon of a right which
when done was lawful; (f) Deprives a
person accused of a crime of some lawful
protecWon to which he has become
enWtled, such as the protecWon of a former
convicWon or acquiQal, or a proclamaWon
of amnesty. In Re Kay Villegas Kami, 35
SCRA 429 (October 22, 1970).