WARRANTLESS ARRESTS AND

SEARCHES, INQUEST AND

PRELIMINARY INVESTIGATION
A DISCUSSION BY SENIOR ASSISTANT PROVINCIAL PROSECUTOR
ERWIN JAMES B. FABRIGA
WHAT IS THE ROLE OF THE ARMED FORCES?
 ARTICLE II, SECTION 3 OF THE 1987
CONSTITUTION STATES:

“THE ARMED FORCES OF THE PHILIPPINES IS THE PROTECTOR

OF THE PEOPLE AND THE STATE. ITS GOAL IS TO SECURE THE
SOVEREIGNTY OF THE STATE AND THE INTEGRITY OF THE
NATIONAL TERRITORY.”
 WHAT IS THE “SOVEREIGNTY OF THE STATE”?

IT IS THE RIGHT OF THE STATE, AS REPRESENTED BY THE

GOVERNMENT, TO BE INDEPENDENT FROM EXTERNAL
CONTROL AND EXERCISE AUTHORITY WITHIN THE LIMITS OF
ITS TERRITORY.
WHAT IS THE EXTENT OF OUR NATIONAL
TERRITORY?
 ARE THERE CRIMES THAT THREATEN THE
SOVEREIGNTY OF THE STATE AND INTEGRITY
OF THE NATIONAL TERRITORY?

REBELLION SEDITION

COUP D‘
TERRORISM
ETAT
HOW IS REBELLION COMMITTED?
IT IS COMMITTED BY RISING PUBLICLY AND TAKING UP
ARMS FOR THE PURPOSE OF OVERTHROWING THE
SAME BY FORCE. IT IS NOT NECESSARY THAT THE
REBELS SUCCEED IN OVERTHROWING THE
GOVERNMENT.

AN ACTUAL CLASH OF ARMS WITH THE FORCES OF

GOVERNMENT IS NOT NECESSARY. THUS, THE MERE
FACT THAT A PERSON KNOWINGLY IDENTIFIES
HIMSELF WITH THE NPA THAT IS OPENLY FIGHTING TO
OVERTHROW THE GOVERNMENT IS ENOUGH TO
MAKE HIM GUILTY OF THE CRIME OF REBELLION.

THOSE MERELY ACTING AS COURIERS OR SPIES FOR

THE NPA ARE ALSO GUILTY OF REBELLION.

REBELLION IS A CONTINUING CRIME, HENCE REBELS

CAN BE ARRESTED ANYTIME WITHOUT A WARRANT.
(ART. 134, RPC)
 MAY THE OFFENDERS BE CHARGED FOR “COMMON
CRIMES” SUCH AS MURDER AND ILLEGAL POSSESSION
OF FIREARMS SEPARATELY FROM REBELLION?
IT DEPENDS.

ACTS COMMITTED IN FURTHERANCE OF REBELLION, THOUGH CRIMES IN

THEMSELVES, ARE DEEMED ABSORBED IN ONE SINGLE CRIME OF
REBELLION. BEING PART AND PARCEL OF THE CRIME OF REBELLION, THE
FORMER ACQUIRED THE POLITICAL CHARACTER OF THE LATTER.

IF THE KILLING AND COMMISSION OF OTHER CRIMES DURING THE

REBELLION WERE DONE FOR PRIVATE PURPOSES OR PROFIT, WITHOUT ANY
POLITICAL MOTIVATION, THE CRIMES WILL BE SEPARATELY PUNISHED.
HOW IS SEDITION COMMITTED?

SEDITION IS A CRIME OF DISSENT OR PROTEST BY

MEANS OUTSIDE OF LEGAL METHODS. THE
OFFENDERS RISE PUBLICLY AND TUMULTUOUSLY
TO ATTAIN THEIR PURPOSE BY FORCE,
INTIMIDATION, OR BY OTHER MEANS OUTSIDE OF
LEGAL METHODS. IT IS DONE IN EXCESS OF THE
LEGAL MEANS AUTHORIZED UNDER THE
FREEDOMS OF EXPRESSION AND ASSEMBLY
CLAUSES OF THE CONSTITUTION.

ITS PURPOSES ARE: TO PREVENT THE EXECUTION

OF A LAW OR HOLDING OF AN ELECTION; TO
PREVENT THE GOVERNMENT OR ANY PUBLIC
OFFICER FROM EXERCISING ITS OR HIS
FUNCTIONS; AND TO INFLICT ANY ACT OF HATE
OR REVENGE UPON THE PERSON OR PROPERTY
OF ANY PUBLIC OFFICER. (ART. 139, RPC)
 DISTINCTIONS BETWEEN REBELLION AND
SEDITION
REBELLION
THE PURPOSE IS POLITICAL.
THE USE OF FIREARM IS ESSENTIAL; IT
IS AN INGREDIENT OF REBELLION
BECAUSE THE LAW SPECIFIES “TAKING
ARMS AGAINST THE GOVERNMENT.”
GENERALLY, THE OFFENDER CANNOT BE
PROSECUTED FOR ILLEGAL POSSESSION
OF FIREARMS BECAUSE THIS IS
ABSORBED IN REBELLION.
SEDITION
THE PURPOSE MAY BE POLITICAL OR SOCIAL FOR
CARRYING OUT A PROTEST OR DISOBEDIENCE
FROM A GOVERNMENTAL ACTION AND NOT FOR
THE PURPOSE OF OVERTHROWING THE
GOVERNMENT.
THE USE OF FIREARM IS NOT AN ESSENTIAL
INGREDIENT OF SEDITION.
IF THE CRIME IS COMMITTED BY THE PERSON
WITHOUT USING THE UNLICENSED FIREARM, THE
VIOLATION OF THIS ACT SHALL BE CONSIDERED
AS A DISTINCT AND SEPARATE OFFENSE.
HOW IS COUP D‘ ETAT COMMITTED?

THERE IS A SWIFT ATTACK ACCOMPANIED BY

VIOLENCE, INTIMIDATION, THREAT, STRATEGY OR
STEALTH.

IT IS COMMITTED AGAINST THE DULY CONSTITUTED

AUTHORITIES OR ANY MILITARY CAMP, ETC.,
COMMUNICATIONS NETWORKS, OR OTHER FACILITIES
NEEDED FOR THE EXERCISE AND CONTINUED
POSSESSION OF POWER.

IT IS COMMITTED BY PERSONS BELONGING TO THE

POLICE OR MILITARY OR ANY PUBLIC OFFICER, WITH
OR WITHOUT CIVILIAN SUPPORT.

THE PURPOSE IS TO SEIZE OR DIMINISH STATE

POWER. (ART. 134-A, RPC)
 DISTINCTIONS BETWEEN REBELLION AND COUP
D'ÉTAT
REBELLION COUP D’ ETAT
ESSENCE IS RISING PUBLICLY AND THE ESSENCE IS SWIFT ATTACK.
TAKING UP ARMS AGAINST THE
GOVERNMENT.
MAYBE COMMITTED SINGLY OR
COLLECTIVELY.
INVOLVES A MULTITUDE OF PEOPLE.

REQUIRES AS A PRINCIPAL OFFENDER A

DOES NOT REQUIRE THAT THE MEMBER OF THE AFP, PNP OR PUBLIC
PRINCIPAL PARTICIPANTS BE MEMBERS OFFICER
OF THE AFP.

OBJECTIVE IS TO DESTABILIZE,
OBJECTIVE IS TO OVERTHROW THE IMMOBILIZE OR PARALYZE THE
GOVERNMENT GOVERNMENT BY TAKING OVER SUCH
FACILITIES.
HOW IS TERRORISM
COMMITTED?

ANY PERSON WHO COMMITS THE FOLLOWING

ACTS, THEREBY SOWING AND CREATING A
CONDITION OF WIDESPREAD AND
EXTRAORDINARY FEAR AND PANIC AMONG THE
POPULACE, IN ORDER TO COERCE THE
GOVERNMENT TO GIVE IN TO AN UNLAWFUL
DEMAND: PIRACY, REBELLION, COUP D‘ ETAT,
MURDER, KIDNAPPING AND SERIOUS ILLEGAL
DETENTION, ARSON, HIJACKING, AND ILLEGAL
POSSESSION OF FIREARMS. (SEC. 3, RA 9372)

THE PROSECUTION, HOWEVER, UNDER RA 9372

SHALL BE A BAR TO ANOTHER PROSECUTION
UNDER THE RPC OR ANY SPECIAL PENAL LAW
UNDER THE PRINCIPLE OF DOUBLE JEOPARDY.
PROSCRIPTION OF TERRORIST ORGANIZATIONS
ANY ORGANIZATION OR GROUP OF PERSONS ORGANIZED FOR
THE PURPOSE OF ENGAGING IN TERRORISM, OR ANY GROUP
WHICH EMPLOYS ACTS OF TERRORISM TO SOW AND CREATE A
CONDITION OF WIDESPREAD AND EXTRAORDINARY FEAR AND
PANIC AMONG THE POPULACE IN ORDER TO COERCE THE
GOVERNMENT TO GIVE IN TO AN UNLAWFUL DEMAND SHALL,
UPON APPLICATION OF THE DOJ BEFORE THE RTC, BE
DECLARED A TERRORIST ORGANIZATION BY THE SAID RTC.
(SEC. 17, RA 9372, HUMAN SECURITY ACT OF 2007)
 WARRANT OF ARREST
• WHAT IS A WARRANT OF ARREST? -LEGAL PROCESS ISSUED BY A
COMPETENT AUTHORITY, DIRECTING THE ARREST OF A PERSON
OR PERSONS UPON GROUNDS STATED THEREIN.

• WHEN IS A WARRANT OF ARREST NOT NECESSARY? -A WARRANT

OF ARREST IS NOT NECESSARY IN THE FOLLOWING INSTANCES:
WHEN THE ACCUSED WAS ARRESTED BY VIRTUE OF A
LAWFUL ARREST WITHOUT WARRANT; WHEN THE PENALTY IS OF A
FINE ONLY; AND THOSE COVERED BY SUMMARY PROCEDURE.
 WHEN MAY A WARRANT OF ARREST BE
ISSUED?
• WITHIN TEN (10) DAYS FROM THE FILING OF THE COMPLAINT OR
INFORMATION, THE JUDGE SHALL PERSONALLY EVALUATE THE RESOLUTION
OF THE PROSECUTOR AND ITS SUPPORTING EVIDENCE. HE MAY
IMMEDIATELY DISMISS THE CASE IF THE EVIDENCE ON RECORD
CLEARLY FAILS TO ESTABLISH PROBABLE CAUSE.
• IF HE FINDS PROBABLE CAUSE, HE SHALL ISSUE A WARRANT OF ARREST,
OR A COMMITMENT ORDER IF THE ACCUSED HAS ALREADY BEEN
ARRESTED PURSUANT TO A WARRANT ISSUED BY THE MTC JUDGE WHO
CONDUCTED THE PRELIMINARY INVESTIGATION OR WHEN THE
COMPLAINT OR INFORMATION WAS FILED PURSUANT TO SECTION 7
OF THIS RULE.
• IN CASE OF DOUBT ON THE EXISTENCE OF PROBABLE CAUSE, THE
JUDGE MAY ORDER THE PROSECUTOR TO PRESENT ADDITIONAL
EVIDENCE WITHIN FIVE (5) DAYS FROM NOTICE AND THE ISSUE MUST BE
RESOLVED BY THE COURT WITHIN THIRTY (30) DAYS FROM THE FILING OF
THE COMPLAINT OF INFORMATION.
 WARRANTLESS ARREST: WHEN CAN IT BE
LAWFUL?

1. WHEN IN THE PRESENCE OF THE ARRESTING OFFICER, THE PERSON

TO BE ARRESTED HAS COMMITTED, IS ACTUALLY COMMITTING, OR IS
ATTEMPTING TO COMMIT AN OFFENSE – IN FLAGRANTE DELICTO
(CAUGHT IN THE ACT)
2. WHEN AN OFFENSE HAS IN FACT JUST BEEN COMMITTED, AND THE
ARRESTING OFFICER HAS PROBABLE CAUSE TO BELIEVE, BASED ON
PERSONAL KNOWLEDGE OF FACTS AND CIRCUMSTANCES THAT THE
PERSON TO BE ARRESTED HAS COMMITTED IT – DOCTRINE OF “HOT”
PURSUIT
3. WHEN THE PERSON TO BE ARRESTED IS A PRISONER WHO HAS
ESCAPED FROM A PENAL ESTABLISHMENT, OR HAS ESCAPED WHILE
BEING TRANSFERRED FROM ONE CONFINEMENT TO ANOTHER –
ESCAPEE
THE RATIONALE FOR WARRANTLESS ARRESTS WAS
ENUNCIATED IN THE CASE OF VALMONTE VS.DE
VILLA WHERE THE SUPREME COURT HELD THAT:

TO HOLD THAT NO CRIMINAL CAN BE ARRESTED AND

SEARCHED WITHOUT A WARRANT WOULD BE TO LEAVE
SOCIETY AT THE MERCY OF THE SHREWDEST, THE MOST
EXPERT, AND THE MOST DEPRAVED OF CRIMINALS,
FACILITATING THEIR ESCAPE IN MANY INSTANCES.
 UMIL VS. RAMOS (187 SCRA 311)

AS FOR CASES OF REBELLION, SINCE REBELLION IS A

CONTINUING OFFENSE, A REBEL MAY BE ARRESTED
AT ANY TIME, WITH OR WITHOUT A WARRANT, AS HE
IS DEEMED TO BE IN THE ACT OF COMMITTING THE
OFFENSE AT ANY TIME OF THE DAY OR NIGHT.
 THE SEARCH WARRANT

• WHAT IS A SEARCH WARRANT? -A SEARCH WARRANT IS AN ORDER IN WRITING

ISSUED IN THE NAME OF THE PEOPLE OF THE PHILIPPINES, SIGNED BY A JUDGE
AND DIRECTED TO A PEACE OFFICER, COMMANDING HIM TO SEARCH FOR
PERSONAL PROPERTY DESCRIBED THEREIN AND BRING IT BEFORE THE COURT.

• WHERE SHOULD ONE FILE AN APPLICATION FOR SEARCH WARRANT? -AS A

GENERAL RULE, ANY COURT WITHIN WHOSE TERRITORIAL JURISDICTION A CRIME
WAS COMMITTED BUT FOR COMPELLING REASONS STATED IN THE
APPLICATION, ANY COURT WITHIN THE JUDICIAL REGION WHERE THE CRIME
WAS COMMITTED IF THE PLACE OF THE COMMISSION OF THE CRIME IS KNOWN, OR
ANY COURT WITHIN THE JUDICIAL REGION WHERE THE WARRANT SHALL BE
ENFORCED. HOWEVER, IF THE CRIMINAL ACTION HAS ALREADY BEEN FILED,
THE APPLICATION SHALL ONLY BE MADE IN THE COURT WHERE THE
CRIMINAL ACTION IS PENDING.
 CON’T
• WHAT MAY BE THE SUBJECT OF A SEARCH WARRANT? -SUBJECT
OF THE OFFENSE; STOLEN OR EMBEZZLED AND OTHER
PROCEEDS, OR FRUITS OF THE OFFENSE; OR USED OR
INTENDED TO BE USED AS THE MEANS OF COMMITTING AN
OFFENSE.

• IS IT NECESSARY THAT THE PERSON NAMED IN THE

SEARCH WARRANT BE THE OWNER OF THE THINGS TO BE
SEIZED? -NO, OWNERSHIP IS OF NO CONSEQUENCE. WHAT IS
RELEVANT IS THAT THE PROPERTY IS CONNECTED TO AN
OFFENSE.
WHAT ARE THE REQUISITES OF A VALID SEARCH WARRANT?
• THERE MUST BE PROBABLE CAUSE—FACTS AND CIRCUMSTANCES THAT WOULD ENGENDER A
WELL-FOUNDED BELIEF IN A REASONABLE PRUDENT AND DISCREET MAN THAT A CRIME HAS
BEEN COMMITTED AND THE THINGS AND OBJECTS TO BE SEIZED CAN BE FOUND IN THE PLACE TO
BE SEARCHED.
• WHICH MUST BE DETERMINED BY THE JUDGE PERSONALLY THROUGH SEARCHING AND
PROBING QUESTIONS—QUESTIONS NOT MERELY ANSWERABLE BY YES OR NO BUT COULD
BE ANSWERED BY THE APPLICANT AND THE WITNESSES ON FACTS PERSONALLY KNOWN TO THEM.
• (UPON WHOM?) THE COMPLAINANT AND THE WITNESSES HE MAY PRODUCE ARE
PERSONALLY EXAMINED BY THE JUDGE, IN WRITING AND UNDER OATH AND AFFIRMATION.
• (BASED ON WHAT?) THE APPLICANT AND THE WITNESSES TESTIFY ON FACTS PERSONALLY
KNOWN TO THEM.
• THE PROBABLE CAUSE MUST BE IN CONNECTION WITH THE SPECIFIC OFFENSE.
• THE WARRANT SPECIFIED DESCRIBES THE PERSON AND PLACE TO BE SEARCHED AND THE
THINGS TO BE SEIZED.
• THE SWORN STATEMENT TOGETHER WITH THE AFFIDAVITS OF THE WITNESSES MUST BE
ATTACHED TO THE RECORD.
 CON’T
• WHEN SHOULD THE SEARCH WARRANT BE EXECUTED? -IF POSSIBLE, IT
SHOULD BE EXECUTED DURING THE DAYTIME. BUT IN CERTAIN CASES, SUCH AS
WHEN THE THINGS SEIZED ARE MOBILE OR ARE IN THE PERSON OF THE
ACCUSED, IT CAN BE SERVED DURING NIGHTTIME.

• FOR HOW LONG IS THE SEARCH WARRANT VALID? IT IS VALID FOR 10 DAYS,
AFTER WHICH THE POLICE OFFICER SHOULD MAKE A RETURN TO THE JUDGE
WHO ISSUED IT. IF THE POLICE OFFICER DOESN’T MAKE A RETURN, THE
JUDGE SHOULD SUMMON HIM AND REQUIRE HIM TO EXPLAIN WHY NO RETURN
WAS MADE. IF THE RETURN WAS MADE, THE JUDGE SHOULD DETERMINE IF THE
PEACE OFFICER ISSUED THE RECEIPT TO THE OCCUPANT OF THE
PREMISES FROM WHICH THE THINGS WERE TAKEN. THE JUDGE SHALL ALSO
ORDER THE DELIVERY TO THE COURT OF THE THINGS SEIZED.
 WARRANTLESS SEARCH: WHEN CAN IT BE
LAWFUL?

1. WARRANTLESS SEARCH INCIDENTAL TO A LAWFUL ARREST

2. SEIZURE OF EVIDENCE IN “PLAIN VIEW”
3. SEARCH OF A MOVING VEHICLE
4. CONSENTED WARRANTLESS SEARCH
5. CUSTOMS SEARCH
6. STOP AND FRISK
7. INSPECTIONS OR BODY CHECKS IN SEAPORTS/AIRPORTS
8. IN TIMES OF WAR AND WITHIN MILITARY COMBAT OPERATIONS
 CHECKPOINTS

CHECKPOINTS ARE NOT ILLEGAL PER SE, AS LONG AS THE

VEHICLE IS NEITHER SEARCHED NOR ITS OCCUPANTS
SUBJECTED TO BODY SEARCH, AND THE INSPECTION OF THE
VEHICLE IS MERELY VISUAL. THE SEARCH WHICH IS LIMITED
TO ROUTINE CHECKS — VISUAL INSPECTION OR FLASHING A
LIGHT INSIDE THE CAR, WITHOUT THE OCCUPANTS BEING
SUBJECTED TO PHYSICAL OR BODY SEARCHES.
 CHECKPOINTS
IN OTHER WORDS, IN THE ABSENCE OF PROBABLE CAUSE, THE
AUTHORITIES:

• CANNOT COMPEL THE PASSENGERS TO STEP OUT OF THE

CAR;
• CANNOT CONDUCT BODILY SEARCHES; AND
• CANNOT COMPEL THE MOTORIST TO OPEN THE TRUNK OR
GLOVE COMPARTMENT OF THE CAR, OR ANY PACKAGE
CONTAINED THEREIN.
 CHECKPOINTS

A SEARCH OF THE LUGGAGE INSIDE THE VEHICLE WOULD

REQUIRE THE EXISTENCE OF PROBABLE CAUSE. ON THE OTHER
HAND, NO PROBABLE CAUSE IS REQUIRED IF THE ACCUSED
VOLUNTARILY OPENS THE TRUNK AND ALLOWS THE SEARCH, AS
WAIVER OF ONE’S RIGHT AGAINST UNREASONABLE SEARCH AND
SEIZURES IS ONE OF THE EXCEPTIONS NOTED ABOVE.
 CHECKPOINTS

IN THE WORDS OF THE SUPREME COURT:

“WHERE ABUSE MARKS THE OPERATION OF A CHECKPOINT, THE

CITIZEN IS NOT HELPLESS. FOR THE MILITARY IS NOT ABOVE BUT
SUBJECT TO THE LAW. AND THE COURTS EXIST TO SEE THAT THE
LAW IS SUPREME. SOLDIERS, INCLUDING THOSE WHO MAN
CHECKPOINTS, WHO ACT BEYOND THE SCOPE OF THEIR AUTHORITY
ARE LIABLE CRIMINALLY AND CIVILLY FOR THEIR ABUSIVE ACTS. THIS
TENET SHOULD BE INGRAINED IN THE SOLDIERY IN THE CLEAREST
OF TERMS BY HIGHER MILITARY AUTHORITIES.”
 WHAT IS AN INQUEST?

IT IS AN INFORMAL AND SUMMARY INVESTIGATION

CONDUCTED BY A PUBLIC PROSECUTOR IN CRIMINAL
CASES INVOLVING PERSONS ARRESTED WITHOUT
WARRANT FOR THE PURPOSE OF DETERMINING WHETHER
OR NOT SAID PERSONS SHOULD REMAIN UNDER
CUSTODY AND CORRESPONDINGLY CHARGED IN COURT.
WHAT ARE THE CRIMES SUBJECT TO INQUEST
PROCEEDINGS?
GENERAL RULE: GENERALLY, ALL OFFENSES UNDER THE REVISED PENAL CODE
AND SPECIAL LAWS ARE SUBJECT TO INQUEST PROCEEDINGS.

EXCEPTION: INQUEST IS NOT REQUIRED FOR THE FOLLOWING:

(1)VIOLATIONS OF TRAFFIC LAWS, RULES AND REGULATIONS;
(2)VIOLATIONS OF THE RENTAL LAW;
(3)VIOLATIONS OF MUNICIPAL OR CITY ORDINANCES;
(4)ALL OTHER CRIMINAL CASES WHERE THE PENALTY PRESCRIBED BY LAW FOR
THE OFFENSE CHARGED IS IMPRISONMENT NOT EXCEEDING SIX MONTHS
(E.G. SLIGHT PHYSICAL INJURIES, UNJUST VEXATION, GRAVE THREATS, SLIGHT
ORAL DEFAMATION).
 ARE REBELS WHO ARE MINORS (PERSONS BELOW 18)
SUBJECT TO INQUEST PROCEEDINGS?

• IF THE MINOR IS 15 YEARS OLD AND BELOW AT THE TIME OF THE

COMMISSION OF THE CRIME – NO CRIMINAL LIABILITY

• IF THE MINOR IS ABOVE 15 BUT BELOW 18 WHO DID NOT ACT

WITH DISCERNMENT – NO CRIMINAL LIABILITY

• IF THE MINOR IS ABOVE 15 BUT BELOW 18 WHO ACTED WITH

DISCERNMENT – THE LAW ENFORCEMENT OFFICER CONCERNED
SHALL BRING THE CHILD TO THE PROSECUTOR FOR INQUEST
PROCEEDINGS. THE LSWDO SHALL ACCOMPANY THE CHILD TO
PROVIDE THE NEEDED ASSISTANCE TO HIM/HER
DATE AND TIME OF THE CONDUCT OF INQUEST
PROCEEDINGS
INQUEST PROCEEDINGS MAY BE CONDUCTED AT
ANY TIME OF THE WEEK. HOWEVER, WHERE AN
INQUEST FALLS ON A NON-WORKING DAY,
SATURDAY, SUNDAY AND HOLIDAY, AND A
PROSECUTOR IS NOT AVAILABLE, THE INQUEST
PROCEEDINGS SHALL BE CONDUCTED ON THE
FIRST OFFICE DAY FOLLOWING THE ARREST.
DETERMINATION OF THE LEGALITY OF THE
ARREST
THE INQUEST PROSECUTOR SHALL FIRST DETERMINE IF THE
WARRANTLESS ARREST WAS MADE IN ACCORDANCE WITH
SECTION 5, RULE 113 OF THE REVISED RULES ON CRIMINAL
PROCEDURE WHICH PROVIDES FOR THE INSTANCES OF A
VALID WARRANTLESS ARREST. (PLEASE REFER TO OUR EARLIER
DISCUSSION)
 WHAT HAPPENS IF THE ARREST OF THE
PERSON WAS NOT PROPERLY EFFECTED?
• THE INQUEST PROSECUTOR SHALL RECOMMEND THE RELEASE OF THE
PERSON ARRESTED SUBJECT TO THE APPROVAL OF THE PROVINCIAL/CITY
PROSECUTOR.

• WHERE THE RECOMMENDATION FOR THE RELEASE OF THE DETAINED

PERSON IS APPROVED BUT THE EVIDENCE ON HAND WARRANTS THE
CONDUCT OF A REGULAR PRELIMINARY INVESTIGATION, THE INQUEST
PROSECUTOR SHALL ORDER THE RELEASE OF THE ARRESTED PERSON
AND SERVE UPON HIM A SUBPOENA (TOGETHER WITH A COPY OF THE
COMPLAINT AND ITS SUPPORTING EVIDENCE) REQUIRING HIM TO ANSWER
THE CHARGE WITHIN 10 DAYS FROM RECEIPT THEREOF.
 WHAT IS ARTICLE 125 OF THE REVISED PENAL
CODE?
ART. 125. DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE
PROPER JUDICIAL AUTHORITIES. — THE PENALTIES PROVIDED IN THE
NEXT PRECEDING ARTICLE SHALL BE IMPOSED UPON THE PUBLIC
OFFICER OR EMPLOYEE WHO SHALL DETAIN ANY PERSON FOR SOME
LEGAL GROUND AND SHALL FAIL TO DELIVER SUCH PERSON TO THE
PROPER JUDICIAL AUTHORITIES WITHIN THE PERIOD OF; TWELVE (12)
HOURS, FOR CRIMES OR OFFENSES PUNISHABLE BY LIGHT PENALTIES,
OR THEIR EQUIVALENT; EIGHTEEN (18) HOURS, FOR CRIMES OR
OFFENSES PUNISHABLE BY CORRECTIONAL PENALTIES, OR THEIR
EQUIVALENT AND THIRTY-SIX (36) HOURS, FOR CRIMES, OR OFFENSES
PUNISHABLE BY AFFLICTIVE OR CAPITAL PENALTIES, OR THEIR
EQUIVALENT.
 WHAT IS THE SIGNIFICANCE OF ARTICLE 125
OF THE REVISED PENAL CODE?

IF THE ARRESTED PERSON DOES NOT SIGN A WAIVER OF THE

PROVISIONS OF ARTICLE 125, THE INQUEST PROCEEDINGS
INCLUDING THE FILING OF THE INFORMATION IN COURT MUST
BE COMPLETED WITHIN THE REGLEMENTARY PERIOD OF 12-
18-36 HOURS, AS THE CASE MAY BE. IF NOT COMPLETED
WITHIN SAID REGLEMENTARY PERIOD, THE ARRESTING
OFFICER MUST RELEASE THE PERSON ARRESTED,
OTHERWISE HE WILL BE LIABLE FOR ARBITRARY DETENTION.
 WHAT IF THE ARRESTED PERSON DOES NOT OPT FOR A
PRELIMINARY INVESTIGATION OR REFUSES TO EXECUTE THE
SAID WAIVER?
• THE INQUEST PROSECUTOR SHALL PROCEED WITH THE
CONDUCT OF THE INQUEST PROCEEDING,
NOTWITHSTANDING THE ABSENCE OF A COUNSEL, BY
EXAMINING THE SWORN STATEMENTS OF THE
COMPLAINANT AND THE WITNESSES AND OTHER
SUPPORTING EVIDENCE SUBMITTED.
• IF THE INQUEST PROSECUTOR FINDS THAT PROBABLE
CAUSE EXISTS, HE SHALL FORTHWITH PREPARE THE
RESOLUTION AND INFORMATION FOR FILING IN COURT.
 FACTORS TO BE TAKEN INTO CONSIDERATION IN
DETERMINING WHETHER OR NOT ARTICLE 125 HAS BEEN
VIOLATED
• THE MEANS OF COMMUNICATION

• THE HOUR OF THE ARREST

• OTHER CIRCUMSTANCES SUCH AS THE MATERIAL POSSIBILITY FOR THE

PROSECUTION TO MAKE THE INVESTIGATION AND FILE IN TIME THE
CORRESPONDING INFORMATION BECAUSE OF THE FOLLOWING REASONS:
AVAILABILITY OF THE CLERK OF COURT TO OPEN THE COURTHOUSE,
AVAILABILITY OF THE JUDGE TO ACT ON THE CASE, OR THE FACT THAT
GOVERNMENT OFFICES OPEN FOR BUSINESS TRANSACTIONS AT 8:00 A.M.
AND CLOSE AT 5:00 P.M.
 UNDER DOJ CIRCULAR NO. 50
THE COUNTING OF THE PRESCRIBED “12-18-36” PERIODS SHALL
BE DONE BY THE HOUR STARTING FROM THE TIME OF ARREST.
HOWEVER, THERE ARE CIRCUMSTANCES THAT MAY BE
CONSIDERED IN DETERMINING WHETHER THE PUBLIC OFFICER
CAN BE HELD LIABLE FOR VIOLATING ART. 125 SUCH AS: (A)
OBSERVANCE OF NON-WORKING HOLIDAYS, DURING WHICH IT
BECOMES LEGALLY AND PHYSICALLY IMPOSSIBLE TO PROPERLY
FILE CHARGES IN COURT; (B) EXTRANEOUS FACTORS LIKE MEANS
OF COMMUNICATION AND TRANSPORTATION, AND THE HOUR OF
THE ARREST. IT MUST BE NOTED, HOWEVER, THAT THE TWO
EXCEPTIONS SHOULD NOT BE USED AS GROUNDS FOR ABUSE. IN
NO CASE THE EXCEPTIONS ABSOLVED PUBLIC OFFICERS FROM
LIABILITY UNDER ART. 125 IF IT CAN BE SHOWN THE DELAY IS
ATTENDED BY MALICE, BAD FAITH OR GROSS NEGLIGENCE.
 WHAT IS A PRELIMINARY INVESTIGATION?

IT IS AN INQUIRY OR PROCEEDING TO DETERMINE

WHETHER THERE IS SUFFICIENT GROUND TO ENGENDER
A WELL-FOUNDED BELIEF THAT A CRIME HAS BEEN
COMMITTED AND THE RESPONDENT IS PROBABLY GUILTY
THEREOF, AND SHOULD BE HELD FOR TRIAL.
 WHAT IS THE NATURE AND EFFECTS OF A
PRELIMINARY INVESTIGATION?
• IT IS MERELY INQUISITORIAL
• ONLY MEANS OF DISCOVERING WHETHER THE OFFENSE HAS
BEEN COMMITTED AND THE PERSONS RESPONSIBLE FOR IT
• TO ENABLE THE FISCAL TO PREPARE HIS COMPLAINT AND INFORMATION
• NOT A TRIAL ON THE MERITS
• DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE
THAT AN OFFENSE HAS BEEN COMMITTED AND THE ACCUSED IS
PROBABLY GUILTY OF IT
• DOESN'T PLACE THE ACCUSED IN JEOPARDY
 WHO CONDUCTS PRELIMINARY
INVESTIGATION?

• THE PROSECUTOR HAVING TERRITORIAL JURISDICTION OVER

THE PLACE WHERE THE CRIME IS COMMITTED.

• IF IN ORMOC CITY – ORMOC CITY PROSECUTION OFFICE

• IF IN ISABEL, MERIDA, KANANGA, MATAG-OB – SUB-PROVINCIAL

PROSECUTION OFFICE STATIONED IN ORMOC CITY
• BEFORE A WHEN IS IT REQUIRED?
COMPLAINT OR INFORMATION IS FILED,
PRELIMINARY INVESTIGATION IS REQUIRED FOR ALL OFFENSES
PUNISHABLE BY IMPRISONMENT OF AT LEAST 4 YEARS, 2 MONTHS AND
1 DAY, REGARDLESS OF THE FINE, EXCEPT IF THE ACCUSED WAS
ARRESTED BY VIRTUE OF A LAWFUL ARREST WITHOUT WARRANT.

• IN CASE OF LAWFUL ARREST WITHOUT WARRANT: THE COMPLAINT

OR INFORMATION MAY BE FILED WITHOUT A PRELIMINARY INVESTIGATION
UNLESS THE ACCUSED ASKS FOR A PRELIMINARY INVESTIGATION
AND WAIVES HIS RIGHTS UNDER ARTICLE 125 OF THE RPC.

• WHETHER OR NOT THERE IS A NEED FOR PI DEPENDS UPON THE

IMPOSABLE PENALTY FOR THE CRIME CHARGED IN THE COMPLAINT FILED
WITH THE CITY OR PROVINCIAL PROSECUTOR’S OFFICE AND NOT
UPON THE IMPOSABLE PENALTY FOR THE CRIME FOUND TO HAVE
BEEN COMMITTED BY THE RESPONDENT AFTER A PRELIMINARY
INVESTIGATION.
 WHAT IS THE PROCEDURE IN CONDUCTING A
PRELIMINARY INVESTIGATION?
THE PRELIMINARY INVESTIGATION SHALL BE CONDUCTED IN THE
FOLLOWING MANNER:
• THE COMPLAINT SHALL STATE: THE ADDRESS OF THE RESPONDENT
AND SHALL BE ACCOMPANIED BY THE AFFIDAVITS OF THE
COMPLAINANT AND HIS WITNESSES, AS WELL AS OTHER SUPPORTING
DOCUMENTS TO ESTABLISH PROBABLE CAUSE.
• THE AFFIDAVITS MUST BE SUBSCRIBED AND SWORN BEFORE THE
PROSECUTOR OR GOVERNMENT OFFICIAL AUTHORIZED TO
ADMINISTER SUCH OR NOTARY PUBLIC.
• WITHIN TEN (10) DAYS AFTER THE FILING OF THE COMPLAINT, THE
INVESTIGATING OFFICER SHALL EITHER: DISMISS IT IF HE FINDS NO
GROUND TO CONTINUE WITH THE INVESTIGATION, OR ISSUE A
SUBPOENA TO THE RESPONDENT ATTACHING TO IT A COPY OF THE
COMPLAINT AND ITS SUPPORTING AFFIDAVITS AND DOCUMENTS.
 CON’T
• WITHIN TEN (10) DAYS FROM RECEIPT OF THE SUBPOENA WITH THE COMPLAINT
AND SUPPORTING AFFIDAVITS AND DOCUMENTS, THE RESPONDENT SHALL SUBMIT
HIS COUNTER-AFFIDAVIT AND THAT OF HIS WITNESSES AND OTHER SUPPORTING
DOCUMENTS RELIED UPON FOR HIS DEFENSE. THE COUNTER-AFFIDAVITS SHALL
BE SUBSCRIBED AND SWORN TO AND CERTIFIED. THE RESPONDENT SHALL NOT
BE ALLOWED TO FILE A MOTION TO DISMISS IN LIEU OF A COUNTER-AFFIDAVIT.
• IF THE RESPONDENT CANNOT BE SUBPOENAED, OR IF SUBPOENAED, DOES
NOT SUBMIT COUNTER-AFFIDAVITS WITHIN THE TEN (10) DAY PERIOD, THE
INVESTIGATING OFFICE SHALL RESOLVE THE COMPLAINT BASED ON THE
EVIDENCE PRESENTED BY THE COMPLAINANT.
• THE INVESTIGATING OFFICER MAY SET A HEARING IF THERE ARE FACTS AND
ISSUES TO BE CLARIFIED FROM A PARTY OR A WITNESS. THE PARTIES CAN BE PRESENT
AT THE HEARING BUT WITHOUT THE RIGHT TO EXAMINE OR CROSS-EXAMINE. THE
HEARING SHALL BE HELD WITHIN TEN (10) DAYS FROM SUBMISSION OF THE COUNTER-
AFFIDAVITS AND OTHER DOCUMENTS OR FROM THE EXPIRATION OF THE PERIOD FOR
THEIR SUBMISSION. IT SHALL BE TERMINATED WITHIN FIVE (5) DAYS.
• WITHIN 2 MONTHS FROM THE FILING OF THE COMPLAINT, THE INVESTIGATING
OFFICER SHALL DETERMINE WHETHER OR NOT THERE IS SUFFICIENT GROUND TO
HOLD THE RESPONDENT FOR TRIAL.
 HOW TO APPEAL DECISIONS OF THE
PROSECUTOR
• FILE A VERIFIED PETITION FOR REVIEW SHALL BE BROUGHT TO THE SECRETARY
OF JUSTICE WITHIN 15 DAYS AFTER RECEIPT OF THE RESOLUTION OR WITHIN THE
SAME PERIOD AFTER RECEIPT OF THE DENIAL OF THE MOTION FOR
RECONSIDERATION IF ONE HAS BEEN FILED.
• THE INVESTIGATING/REVIEWING/APPROVING PROSECUTOR SHALL NOT BE
IMPLEADED AS PARTY RESPONDENT IN THE PETITION. THE AFP UNIT TAKING THE
APPEAL SHALL BE REFERRED TO IN THE PETITION AS "COMPLAINANT-APPELLANT".
• THE PETITION SHALL CONTAIN OR STATE: (A) THE NAMES AND ADDRESSES OF
THE PARTIES; (B) THE INVESTIGATION SLIP NUMBER (I.S. NO.) AND CRIMINAL CASE
NUMBER, IF ANY, AND TITLE OF THE CASE, INCLUDING THE OFFENSE CHARGED IN
THE COMPLAINT; (C) THE VENUE OF THE PRELIMINARY INVESTIGATION; (D) THE
SPECIFIC MATERIAL DATES SHOWING THAT IT WAS FILED ON TIME; (E) A CLEAR
AND CONCISE STATEMENT OF THE FACTS, THE ASSIGNMENT OF ERRORS, AND
THE REASONS OR ARGUMENTS RELIED UPON FOR THE ALLOWANCE OF THE
APPEAL; AND (F) PROOF OF SERVICE OF A COPY OF THE PETITION TO THE
ADVERSE PARTY AND THE PROSECUTION OFFICE CONCER.
 CON’T
• THE PETITION SHALL BE ACCOMPANIED BY LEGIBLE DUPLICATE
ORIGINAL OR CERTIFIED TRUE COPY OF THE RESOLUTION
APPEALED FROM TOGETHER WITH LEGIBLE TRUE COPIES OF
THE COMPLAINT, AFFIDAVITS/SWORN STATEMENTS AND OTHER
EVIDENCE SUBMITTED BY THE PARTIES DURING THE
PRELIMINARY INVESTIGATION/REINVESTIGATION.

• FAILURE TO COMPLY WITH THE ABOVE REQUIREMENTS SHALL

CONSTITUTE SUFFICIENT GROUND FOR THE DISMISSAL OF THE
PETITION.
 “THE SOLDIER IS THE ARMY. NO ARMY IS
BETTER THAN ITS SOLDIERS. THE SOLDIER IS
ALSO A CITIZEN. IN FACT, THE HIGHEST
OBLIGATION AND PRIVILEGE OF CITIZENSHIP
IS THAT OF BEARING ARMS FOR ONE’S
COUNTRY.”

― GEN. GEORGE S. PATTON JR.