FOREWORD

!It was in 1996 that the first Manual for Prosecutors of the
Department of Justice was issued as a unified guide for
prosecutors in their day-to-day services to the public. In the
ensuing years, the Rules on Criminal Procedure had
undergone revisions, several special laws were enacted, and
various jurisprudence emerged, thus, affecting the work of the
prosecutors. Yet, the Manual remained as it was in 1996. The
need to revisit the Manual to keep it attuned to recent
developments in law and procedure is the prime consideration
for those involved in this project.
!The Manual will provide for the procedural guidelines that will
standardize investigative and prosecutorial work in the National
Prosecution Service in a unified and simplified manner.
!I Thank all those who have labored and partnered ith the
Department for the development and production of this Manual.
May you continue with such noble work for the Filipino people,
and may more join you in efforts to strengthen the Department
as an institution and the justice system as whole.
!To all DOJ prosecutors and prosecution attorneys, this is your
Manual. A lot of hard work, time and resources went into it to
make sure that it is comprehensive enough to cover the
peculiarities of your work, while being a user-friendly reference
to you.
!It is my hope that this would help you in the discharge of your
sworn duty to the people and ultimately improve the
administration of justice in our country.

! RAUL M. GONZALES
Secretary of Justice

!!

!1
!PART I. PROSECUTION OF OFFENSES
!!
I.GENERAL PRINCIPLES
!1. The prosecution of cases shall be under the direct control and
supervision of the prosecutor. While he may turnover the
actual prosecution of the criminal case to a private
prosecutor, it is necessary that he be present at the trial until
the final termination of the cases; otherwise, if he is absent,
it cannot be gainsaid that the trial is under his supervision
and control (Pinote v. Ayco, 477 SCRA 409 [2005] ).
!2. The trial prosecutor may, at any time, in the exercise of his
discretion, take over from the private prosecutor the actual
conduct of the trial.
! 1.A prosecutor, by the very nature of his office, is under no
compulsion to file a particular criminal Information where
he is not convinced that he has evidence to support the
allegations thereof or he is not convinced of the merits of
the case (Torres v. Aguinaldo, 461 SCRA 599 [2005]).
!2.The prosecution office has no more control over cases filed in
court; thus, a motion for reinvestigation should be
addressed to the trial judge (Baltazar v. Pantig, G.R. No.
149111, August 9, 2005).
!3.Once a case has already been filled in court, a trial
prosecutor may be compelled to prosecute the case
notwithstanding his personal convictions or opinions. He
should present the case to the best of his ability and let
the court decide the merits of the case on the basis of the
evidence adduced by both parties.
!3.DEFINITION OF TERMS
!1.Arraignment – is the formal mode and manner of
implementing the constitutional right of the accused to be
informed of the nature and cause of the accusation against
him (Sec 13[2], 1987 Constitution of the Philippines). An
arraignment is necessary in order to fix the identity of the
accused, to inform him of the charge and to give him an

!2
 opportunity to plead (14 Am. Jur., p.939, G.V. Jacinto,
Criminal Procedure).
!2.Arrest – the taking of a person into custody in order that he
may be found to answer for the commission of an offense
(Sec. 1, Rule 113, Revised Rules on Criminal Procedure).
!3.Bail – is the security given for the release of a person in
custody of the law, furnished by him or a bondsman, to
guarantee his appearance before any court as required
under the conditions hereinafter specified. Bail may be
given in the form of corporate surety, property bond, cash
deposit or recognizance (Sec 1, Rule 114, Revised Rules
on Criminal Procedure).
!4.Bail Bond – is an obligation given by the accused with one or
more sureties, with the condition to be void upon the
performance by the accused of such acts as he may legally
be required to perform (Villasenor v, Abano, 21 SCRA 312).
!5.Complaint – a sworn written statement charging a person with
an offense, subscribed by the offender party, any peace
officer, or other public officer charged with the enforcement
of the law violated (Sec. 3, Rule 110, Revised Rules on
Criminal Procedure).
!6.Continued/Continous/ Continuing Crime – is a single crime,
consisting of a series of acts but all arising from one
criminal resolution (The Revised Penal Code – Criminal
Law , Book One, 15th Ed., Luis B. Reyes, p.676).
!7.Criminal Action – A Criminal action is one by which the State
prosecutes a person for an act of omission punishable by
law (Sec. 3(b), Rule 1,1997 Rules of Civil Procedure).
!8.Information – is an accusation in writing charging a person
with an offence subscribed by the prosecutor and filed with
the court (Sec 4, Rule 110, supra.).
!9.Inquest – an informal and summary investigation conducted by
a public presecutor in criminal cases involving persons
arrested and detained witout the benefit of a warrant of
arrest issued by the court for the purpose of determining
whether or not said persons should should remain under
custody and correspondingly be charged in court.
!3
!10.Offended Party – is the person against whom or against
whose property the crime was committed (Sec. 3, Rule 110,
supra) and to whom the offender is civilly liable in light of
article 100 of Revised Penal Code that “every person
criminally liable is also civilly liable (Garcia v. CA,266
SCRA 678 [1997]); the person actually injured whose
feeling is offended.
!11.Personal Knowledge of Facts (in arrests without warrant)
– must be based upon probable cause which means an
actual belief or reasonable grounds of suspicion.
!The grounds of suspicion are reasonable when, in the absence of
actual belief of the arresting officers, the suspicion that the
person to be arrested is probably guilty in committing the
offence based on actual facts, i.e. supported by
circumstances sufficiently strong in themselves to create
the probable cause of guilt of the person to be arrested. A
reasonable suspicion that therefore must be founded on
probable cause, “couple with good faith on the part of the
peace officers making the arrest.” (Umil, et. Al. vs. Ramos,
202 SCRA 251 [1991]).
!12.Plea – is the reply of the accused to the charge. In criminal
prosecution, the accused has to plead to the indictment,
which he may do (1) by pleading to the jurisdiction, that is,
alleging the court has no jurisdiction to try him; (2) by a
demurrer; or (3) by some plea bar, either a general plea,
“guilt” or “not guilty” (Osborn’s Concise Law Dictionary, 15th
Ed. John Burke, p.254)
!13.Plea Bargaining – The process where the accused usually
pleads guilty to a lesser offense, or to only one or some of
the counts of a multi- count indictment in return for a lighter
sentence than that for the graver charge (Black’s Law
Dictionary, 5th Ed., p. 1037).
!14.Preliminary investigation – is an inquiry or proceeding to
determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed and
the respondent is probably guilty thereof, and should be
held for trial (Sec. 1, Rule 112, Revised Rules on Criminal
Procedure).
!
!4
15.Probable Cause (for the purpose of filing an Information)
– has been defined as a reasonable ground of presumption
that a matter is or may be well-founded; such a state of
facts in the mind of the prosecutor as would lead a person
of ordinary caution and prudence to believe, or entertain an
honest or strong suspicion, that a thing is so.
!16.Probable Cause (as a ground for warrantless arrest) – an
actual belief or reasonable ground of suspicion (People vs.
Tudtud, GR No. 144037, Sept. 26, 2003) that the person to
be arrested is about to commit or is attempting to commit a
crime, or is in the act of committing a crime, or has
committed a crime, either in the presence or without the
presence of the arresting officer.
!17.Recognizance – is an obligation of record, entered into
before some court or magistrate duly authorized to take it,
with the condition to do some particular act, the most usual
condition in criminal cases being the appearance of the
accused for trial (People vs. Abner; 87 Phil. 566).
!18.Release on Recognizance – the pre-trial release of an
arrested person who promises, usually in writing but without
a surety or posting bond, to appear for trial at a later date
(Black’s Law Dictionary, p. 1316).
!19.Summary Investigation – refers to the investigation
conducted by the prosecutor to determined the existence or
non-existence of probable cause in cases that do not
require preliminary investigation (Sec. 8, Rule 122, as
amended, Revised Rules on Criminal Procedure), namely
those involving offenses in which the prescribed penalty of
imprisonment does not exceed four (4) years and two (2)
months, regardless of the fine.
!20.Summary Procedure (as distinguish from Summary
Investigation) – refers to the court procedure in criminal
cases covered by Rule 123 of the Revised Rules on
Criminal Procedure, involving offenses in which the penalty
of imprisonment prescribed by law does not exceed six (6)
months, or fine not exceeding one thousand pesos (Php
1,000.00).
!21.Trial - is a judicial examination of the claims at issue in a case
which is presented by the prosecution and defense to
!5
 enable the court to arrive at a judgment pronouncing either
the guilt or innocence of the accused (US v. Raymundo, 14
Phil. 416 [1909]).
!4.General Rules
!A.Complaint
!1.Form of the Complaint Filed Before the Prosecutor’s Office
!
A written complaint filed with the Office of the Prosecutor may

!a. acome in different forms, to wit:

!b. anreferral letter from the law enforcement agency;

affidavit of the offended party or any other person

authorized by law to file a criminal complaint;
!c. a letter (sworn or not) from the offended party, or other
!d. a persons authorized by law to file the complaint;

referral letter from a committee of the Senate or House of

Representatives or any other government agency or
institution; and
!e. a formal complaint similar in form to that filed in court.
!2.Policy on forms of Complaint Filed with the Prosecutor’s
! a.AsOffice
general rule, a complaint filed with the prosecutor must be
sworn to by the complaint, to discourage harassment
charges. In which case, he prosecutor shall warn
thecomplaint that any false statement in the complaint may
give rise to a finding of a prima facie case for perjury
before the same office.
!b.However, referral letter-complaints from the law enforcement
agencies or government institutions need not be sworn to by
the complaints.
!c.A mere letter suffices to start an investigation, except if the
offense charged is one which cannot be prosecuted de
oficio, or is private in nature, i.e., where the law requires that
it be started by a complaint sworn to by the offended party
!6
 (People v, Sangil, 4 SCRA 722 ). However, upon the start of
the investigation, the investigating officer should administer
the oath to the complaint.
!• This liberal policy is premised upon the fact that the complaint
is unschooled in law, (Grenen v. Consolacion, 4 SCRA 722
[1962]) and it is the inherent power of the prosecutor to even
initiate motu proprio a criminal investigation without waiting a
formal complaint to be filed by the police agency or the
aggrieved party. (Sec. 3, Rule 110, supra.).
!3.Persons Authorized to File Complaints
! The following persons are authorized to a file complaint:
!a.the offended party;
!• even if the names of the offended parties are not alleged, if the
offense belongs to the class of harmful ones (illegal practice
of medicine), the victims should be considered offended
parties (Diel v. Martinez, 76 Phil. 273).
!b.any other person or persons authorized by law to file a
!c.anycomplaint;
law enforcement officer charged with the enforcement of
the law violated.
!• A “complaint” filed with the prosecutor prior to judicial action
may be filed by any person (Salazar v. People, G.R. No.
149472, October 15, 2002)
• Private persons may denounce a violation of banking laws
(Perez v. Monetary Board, 20 SCRA 592).
!
In offenses which cannot be prosecuted de oficio, only the
following persons may file the complaint:
!1.In crimes of adultery and concubinage, only the offended spouse
has the right to file the complaint (Sec. 5, par. 3, Rule 110,
supra);
!2.In crimes of seduction, abduction and acts of lasciviousness, the
offended party, even if a minor, may file the complaint
independently of her parents, grandparents or guardian
(Sec. 5, par. 3, Rule 110, supra);
!7
!3.In case the offended party is incompetent or incapacitated, only
the following persons have the right to file the complaint,
exclusive of all other persons, and may only exercise such
right successively in the following order of priority: parents,
grandparents, and guardians. (Sec. 5, par. 4, Rule 110,
supra);
!4.If the offended party dies or incapacitated before she could file
the complaint, but has no known parents, grandparents or
guardian, the State shall initiate the criminal action in her
behalf. (Sec. 5, par. 3, Rule 110, supra);
!5.In cases of violations of the Child Abuse Law, any one of the
following may file the complaint (Sec. 27, R.A No.7610, as
amended by R.A. No 9231 [Child Labor law]):
! • the offended party
!• the parents or guardian
!• ascendant or collateral relative within the third civil degree of
consanguinity;
!• officer, social worker or representative of a licensed child-care
institution;
!• officer or social worker of the Department of Social Welfare
and Development;
!• Barangay Chairman of the place where the offense was
committed; or of the place where the offended party actually
resides, or where he/she works;
!• At least three (3) responsible citizens where the violation
!d.Foroccurred.
violations of RA 9262 (Anti-Violence Against Women and
their Children Act of 2004), any citizen having knowledge of
the circumstances involving the commission of the crime
may file the complaint.
!e.In case of violatin of RA 9208 (Anti-Trafficking in Persons Act),
! any one of the following may file the complaint:
!8
 1.trafficked person;
2.parents;
3.spouse;
4.siblings;
5.children;
6.legal guardian;
7.any person who has personal knowledge of the commission of
the offense.
!4.Law Enforcement Officers/Public Officers Authorized to File
Criminal Complaints
! Except in offenses which cannot be prosecuted de oficio, or
where the law specifies only certain persons as authorized to
file the criminal complaint, the following law enforcement
officers or public officers or agencies may initiate the criminal
action or complaint:
! a.police officers;
!b.NBI agents
!c.officials of the Philippine Drug Enforcement Agency (PDEA) for
violations of RA 9165 (Comprehensive Dangerous Drugs Act
of 2002);
!d.officials of the Bureau of Internal Revenue (BIR) for violations
of the National Internal Revenue Code (NIRC);
!e.officials of the Bureau of Customs (BOC) for violations of the
Tariff and Customs Code;
!f. officials of the Bureau of Forestry Development (BFD) or other
officials of the Department of Environment and Natural
Resources for violations of the Forestry Law;
!g.officials of the Social Security System (SSS) for violations of
RA 1161, as amended by RA 8282 (SSS Law);
!h.officials of the Philippine Overseas Employment Administration
(POEA) for violations of RA 8042 (Migrant Workers and
Overseas Filipinos Act of 1995);
!i. officials of the PAG-IBIG for violations of the PAG-IBIG Fund
Law (PD 1752); and
!9
 !j. Other agencies specially tasked with the enforcement of
certain special laws.
!k.Institution of Criminal Action; How and Where

!a.For Commenced
offenses that require preliminary investigation pursuant to
Sec. 1, Rule 112 of the Revised Rules on Criminal
Procedure –
A criminal action may be commenced or instituted by the filing of
the complaint with the proper officer for the purpose of
conducting the requisite preliminary investigation (Sec. 1 (a),
Rule 110, supra.).
!• Criminal actions for violations of the civil and political rights of
persons suspected of or detained for the crime of terrorism
or conspiracy to commit terrorism may also be commenced
by the filing of the complaint with the Commission on Human
Rights (Sec. 55, RA 9372).
!b. For offenses that do not require preliminary investigation –
!A criminal action may be commenced:
!1.By filing the Complaint or Information directly with the
Metropolitant Trial Courts, Municipal Trial Court and
Municipal Circuit Trial Courts; or,
!
2.by filing the complaint with the Office of the Prosecutor.
!l. Place where Criminal Action is to be Instituted
!A criminal action should be instituted and tried in the province, city
or municipality where the offense was committed or any of its
essential elements took place.
!• The purpose of the aforementioned principle being that a
defendant should not be compelled to move to, and appear
in a different court from that of the province where the crime
was committed, as it would cause him great inconvenience
in looking for his witnesses and other evidences in another
place (Beltran v. Ramos, et al., 96 Phil. 149 [1954]).
!
!10
a.Where the offense is committed on railroad train, in an aircraft,
or in any other public or private vehicle while in the course of
trip –
!The criminal action shall be instituted in the court of any
municipality or territory where such train, aircraft or other
vehicle passed during such trip, including the place of
departure and arrival (Sec. 15 (b), Rule 110, supra.).
!b.Where the offense is committed on board a vessel in the course
of its voyage – The criminal action shall be instituted in the
proper court of its first port of entry or of any municipality or
territory through which the vessel passed during such
voyage subject to the generally accepted principles of
international law (Sec. 15 (c) Rule 110, supra). ]
!• The place where the action is to be instituted is subject to
existing laws such as offenses which fall under the exclusive
jurisdiction of the Sandiganbayan which is located at Quezon
City.
!c.Where the crimes are committed outside the Philippines but
punishable under Article 2 of the Revised Penal Code –
!The commission of such crimes shall be cognizable by the court
where the criminal action is first filed (Sec. 15 (d), Rule 110,
supra.).
!m.Who Prosecutes Criminal Actions
!i. All criminal actions commenced by a Complaint or Information
shall be prosecuted under the direction and control of the
prosecutor (Sec. 5, par. 1, Rule 110, supra.).
!• A case dismissed before arraignment may be refilled. (Marcelo v.
Court of Appeals, 227 SCRA 827).
!ii. In Municipal Trial Courts or Municipal Circuit Trial Courts, when
the prosecutor assigned thereto or to the case is not
available the following may prosecute the case (Sec. 5, par.
1, Rule 110, supra.):
!1.the offended party;
!2.any peace officer; or
!11
!3.public officer charged with the enforcement of the law violated.
!This authority shall cease upon actual intervention of the
prosecutor or upon elevation of the case to the Regional
Trial Court.
!B. INFORMATION
!1.The Information Need Not Be Under Oath; Matter Which a
Prosecutor Must Certify Under Oath in the Information.
!The information need not be placed under oath by the prosecutor
signi_____

The same. He must, however, certify under oath that:

!a. he has examined the complainant and his witnesses;
b. there is reasonable ground to believe that a crime has been
committed _____ that the accused is probably guilty thereof;
c. the accused was informed of the complaint and of the evidence
submitted against him; and
d. the accused was given an opportunity to submit controverting
evidence_______ (Sec. 4, Rule 112, supra.)
!2. Contents of the Caption of an Information
!The caption of an Information shall, in addition to the name of the
!a. theprosecutor tiff, indicate the following:

complete names, i.e., given name, alias/es, maternal name,

surname___ and addresses, of all the accused. In the case
of accused minors, the____ shall be indicated in the caption;
!b. the case number;
and
c. the offense charged. (The denominational of the offense and
the specific law and provision violated shall be specified.)
!C. RULES COMMON TO BOTH A COMPLAINT AND
INFORMATION
!
1. Sufficiency of a Complaint or an Information
!A Complaint or Information is sufficient if it states the following:
!12
!a.the name of the accused
!
the Complaint or Information must state the name and surname
of the accused or any appellation or nickname by which he
has been or is known his name cannot be ascertained, he
must be described under a fictitious with a statement that his
true name is known (Sec. 7, par. 1, Rule 110 supra.)
!If the true name of the accused is thereafter disclosed by him or
appears in some other manner to the court, such true name
shall be inserted in the Complaint or Information and record
(Sec. 7, par. 2, Rule 110, supra.).
!• Where the accused has been sued as “John Doe” in an
information filed in due form, and after investigation by the
prosecutor, his identity became known, his true name may
be inserted without further need or preliminary investigation
where one had already been properly conducted and the
nature of the crime is not changed (San Diego v. Hernandez,
24 SCRA 110 [1968]).
!• In crimes against property, the designation of the name of the
offended party is not absolutely indispensable for as long as
the criminal act charged in the Complaint or Information can
be properly identified (Sayson v. People, 166 SCRA 693).
!b.the designation of the offense committed
!To properly inform the accused of the nature and cause of the
accusation against him, the Complaint or Information
shall state, whenever possible -
!1.the designation given to the offense by this statute;
!2.the statement of the act or omission constituting the same, and if
there is no such designation, reference shall be made to the
section or subsection of the law punishing it (Sec. 8, Rule
110, supra) (People v. Gutierrez, 403 SCRA 178).
!• The Information or Complaint must avoid using conclusions of
law, but must allege ultimate facts – that is, specific
averment of every fact or element that constitutes the crime.
Otherwise, the information is void for being violative of the

!13
 constitutional right of the accused to know the nature of the
offense charged against him.
!Examples of Conclusions of Law
!• The terms “sexual abuse”, “rape” or “acts of lasciviousness” are
conclusions of law, and not the ultimate facts constituting the
acts punishable under Sec. 5, RA 7610. Thus, the allegation
that the accused committed “sexual abuse on his daughter,
either by “raping” her or committing “acts of lasciviousness
on her ” is not sufficient to convict the accused as it does not
state the acts or omissions constituting the offense of child
abuse (People v. De la Cruz, 383 SCRA 410 [2002]).
!• The allegation that the accused “sexually abused” the complaint
is not sufficient to support a conviction for rape. The term
“sexual abuse” cannot be equated with the allegation of
carnal knowledge or sexual intercourse with the offended
party (People v. Flores, G.R. No. 12882324, December 27,
2002).
!• Neither is the term “sexual abuse” sufficient to convict the
accused of child abuse under RA 7610 because under Sec.
2 (g) of the Rules and Regulations of the Reporting and
Investigation of Child Abuse cases, issued pursuant to Sec.
32 of RA 7610, “sexual abuse” is defined therein by inclusion
as follows:
!“Sexual abuse includes:
!1.employment, use, persuasion, enticement, or coercion of a child
to engage in, or assist another person to engage in sexual
intercourse or lascivious conduct, or
!2.the molestation, or
!3.prostitution, or
!4.incest with children.”
!From the foregoing broad, non-exclusive definition, the phrase
“sexually abused” does not comply with the requirement that
the complaint must contain a specific averment of every fact
necessary to constitute the crime.
!
!14
Examples of Averments of Ultimate Facts
!The body of the information states that the accused “embraced”
the complainant, “held her breasts and kissed her lips”. Such
allegations constitute specific averment of ultimate facts
constituting the offense of child abuse under Sec. 5 of RA
7610. This, despite the fact that the caption and the
preamble of the Information designated the offense charged
as “Violation of RA 7610. The omission to cite the specific
section or subjection. of RA 7610 violated is not sufficient to
invalidate the information since there is no doubt that the
allegation of the ultimate facts of “embracing” the victim
“holding her breast” and “kissing her lips” clearly refer to the
“ultimate facts” of the generic term “acts of lasciviousness”
which is penalized under Sec. 5, of RA 7610. Hence, the
Information was valid (Olivarez v. CA G.R No. 163866, July
29, 2005).
!• In order for the court to impose the penalties under R.A. No.
9346 in rape cases, the following attendant circumstances
must be stated in the Information:
!1.When the victim is under eighteen (18) years of age and the
offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common law spouse of the parent of the
victim;
!2.When the victim is under the custody of the police or military
!3.Whenauthorities;
the rape is committed in full view of the husband, parent,
any of the children or other relatives within the third degree
of consanguinity;
!4.When the victim is a religious or a child below seven (7) years of
!5.Whenold;the offender knows that he is afflicted with Acquired
!6.WhenImmune Deficiency Syndrome (AIDS) disease;

the rape is committed by any member of the Armed

Forces of the Philippines or the Philippine National Police or
any law enforcement agency;
!
!15
7.When, by reason or on the occasion of the rape, the victim has
suffered permanent physical mutilation. (Sec. 11, RA 7659
[The Death Penalty Law).
!3.the cause of the accusation
!The acts or omissions complained of as constituting the offenses
and the qualifying and aggravating circumstances must stated
in ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable a
person of common understanding to know what offense is
being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment (Sec 9,
Rule 110, supra.).
!4.place where the offense was committed
! The Complaint or Information is sufficient if it can be
understood from its allegations that the offense was
committed or some of its essential ingredients occurred at
some place within the jurisdiction of the court, unless the
particular place where it was committed constitutes an
essential element of the offense charged or is
necessary for its identification (Sec. 10, Rule 110, supra.).

A general allegation in the Complaint that the felony was

committed within the jurisdiction of the court is sufficient. The
remedy is a motion for a bill of particulars under Rule 116,
Sec 6 (People v. Pinuela, 91 Phil. 53).
! There are however, certain crimes where place is essential:
!1.violation of domicle (Art. 128, RPC);
!2.penalty on keeper, watchman and visitor of an opium den (Art.
199, RPC);
!3.trespass
!4.violation ofto the
dwelling (Art. 280, RPC);

election law, e.g., 30-meter radius carrying of a

deadly weapon prohibited (Election Code)
!5.date of the commission of the offense
!
!16
 The complaint must alleged the specific time and place when
and where the offense was committed, but when the time so
alleged is not of the essence of the offense, it need not be
proved as alleged, and the complaint will e sufficient if the
evidence shows that the offense was committed at anytime
within the period of the statute of limitation and before the
commencement of the action (US v. Smith, 3 Phil 20 [1903]).
!6.name of the offended party
! The Complaint or Information must state the name and
surname of the person against whom or against whose
property the offense was committed, or ant appellation or
nickname by which such person has been or is known. If
there is no better way of identifying him, he must be
described under a fictitious name (Sec 12, Rule 110, supra.).
!2. Other Essential Matters to be Alleged in the Complaint or
Information

The following matters shall also be alleged in the Complaint or

Information:
!a.every essential element of the offense;
!b.the criminal intent of the accused and its relation to the act or
omission companied of;
!c.all qualifying and generic aggravating circumstances which are
integral parts of the offense;
!d.all matters that are essential to the constitution of the offense,
such as the ownership and/or value of the property robbed
or destroyed; the particular knowledge to establish culpable
intent; or the particular intention that characterizes the
offense;
!e.age of the minor accused, and whenever applicable, the fact
!f.age that he/she acted with discernment; and,

of the minor complaint.

!7.Number of Offenses Charged
!
!17
 A Complaint or Information must charged only one offense,
EXCEPT when the law prescribes a single punishment for
various offenses (Sec. 13, Rule 110, supra.).
!• The charge is not defective for duplicity when one singular
crime is set forth in the different modes prescribed by law for
its commission, or the felony is set forth under different
counts specifying the way of its perpetuation, or the acts
resulted from a single criminal impulse. Neither is there
duplicity when the other offence described is but an
ingredient or an essential element of the real offense
charged nor when several acts are related in describing the
offense (People v. Montilla, 285 SCRA 703).
! EXCEPTION: The rule in duplicity of offense does not apply
where the law prescribes a single penalty for various
offenses such as a complex crime under Article 48 of the
Revised Penal Code or special complex crime such as
robbery with homicide or with rape or rape with homicide.
!8.Title of the Complaint or Information
!The title of the Complaint or Information shall be in the name of
the “People of the Philippines” as plaintiff against all persons
who appear to be responsible for the offense involved.
!9.Qualifying and Generic Aggravating Circumstances; To be
!a.TheAlleged and Proved

prosecutor must always consider and allege the applicable

qualifying and/or generic aggravating circumstances in any
Complaint or Information that he prepares.
!b.Any qualifying or generic aggravating circumstances not alleged
in the Complaint or Information may not be consider by the
court even if proved during trial, except as a ground for the
grant of exemplary e damages in the civil aspect of the
criminal action where applicable, pursuant to Article 2230 of
the New Civil Code.
!10.List of Prosecution Witnesses
!The information shall contain the complete names and
addresses of all identified witnesses for the prosecution. In
cases violation of B.P. Blg. 22 and estafa cases, the list of
!18
 the witnesses shall include the complainant, the bank
representative with specific reference to the check and
account numbers involved and, in proper cases, he company
auditor.
!In physical injuries cases, the information shall indicate the name
of the attending physician with specific reference to the
medical report and date of the incident.
!11.Amendment of the Complaint or Information
!A Complaint or Information may be amended, in form or in
substance:
!a.before
!This maythebeaccused pleads

done without leave of court; however, any amended

before plea, which downgrades the nature of the offense
charged or excludes any accused from the Complaint or
Information, can be made only upon motion by the
prosecutor, with notice to the offended party and with leave
of court (Sec. 14, par. 2, Rule 110, supra.).
!b.after the accused has plead
!The amendment may be made only with leave of court and only
as to matters of the form wherein the same can be done
without prejudice to the rights of the accused (Sec. 14, par.
1, Rule 110, supra.).
!c.during the trial
!An amendment may also be made but only with leave of court
and also only as to matters of form wherein the same can be
done without prejudice to the rights of the accused (Sec. 14,
par. 1, Rule 110, supra.).
!12.Amendment by substitution
!At any time before judgment, if there has been a mistake in
charging the proper offense, the court shall dismiss the
original Complaint or Information upon the filing of a new one
charging the proper offense in accordance with Rule 119,
Sec. 11, provided the accused would not be placed thereby
in double jeopardy. The court may also require the witnesses
!19
 to give bail for their appearance at the trial (Sec. 14, par. 3,
Rule 110, supra.).
!a.Requisites for the substitution of a defective information
with the correct one:
!1.It involves a substantial change from the original charge;
!2.the substitution of Information must be with leave of court as the
original Information has to be dismissed;
!3.another preliminary investigation must be conducted and the
accused has to plead anew to the new Information; and,
!4.substitution presupposes that the new Information involves a
different offense which does not include or is not necessarily
included in the original charged.
!NOTE: Where the second Information involves the same offense,
or an offense which necessarily includes or is necessarily
included in the first Information, an amendment of the
Information is sufficient; otherwise, where the new
Information charges an offense which is distinct and different
from that initially charged, substitutions is in order (Galvez v.
Court of Appeals, 237 SCRA 659).
!NOTE: When it becomes manifest at anytime before judgment
that a mistake has been made in charging the proper offense
and the accused cannot be convicted of the offense charged
or any other offense necessarily included therein, the
accused shall not be discharged if there appears good cause
to detain him. In such case, the court shall commit the
accused to answer for the proper offense and dismiss the
original case upon the filing of the proper Information (Sec.
19, Rule 119, Revised Rules on Criminal Procedure).
!13. Prescriptive Period; How Computed and Interrupted
!a.For an offense penalized under the Revised Penal Code –
!The period of prescription commences to run from the day on
which the crime was discovered by the offended party, the
authorities, or their agents, and shall be interrupted:
!
!20
1.by filing of the complaint with the Office of the Provincial/City
Prosecutor (Sec. 1 (b), par. 2, Rule 110, supra.); or with the
Office of the Ombudsman (Llenes v. Dicdican, 260 SCRA
207 [1996] or
!
2.by the filling of the Complaint/Information with the court even if
the court cannot try the case on its merit because of lack of
jurisdiction (People v. Enrile, 160 SCRA 700).
!3.For an offense covered by the Revised Rules on Summary
Procedure (which is not violation of a municipal ordinance or
special law such as reckless imprudence resulting in slight
physical injuries), the period of prescription is interrupted
only by the filing of the Complaint or Information in the
prosecutor’s office(People v. Cuaresma,172 SCRA 415
[1989).
!4.The prescription of an offense filed before the Prosecutor or
Ombudsman shall commence to run again when
proceedings terminate; while the prescription of an offense
filed in court starts to run again when proceedings terminate
without the accused being convicted or acquitted or are
unjustifiably stopped for any reason not imputable to the
accused (Art. 91, Revised Penal Code).
!b.For violation of a special law of ordinance –
!The period of prescription shall commence to run from the day of
the commission of the violation, and if the same is not known
at the time, from the discovery and the institution of judicial
proceedings for its investigation and punishment. The
prescription shall be interrupted only by the filing of the
Complaint or Information in court and shall begin to run
again if the proceedings are dismissed for reasons not
constituting double jeopardy (Sec. 2, Act. No. 3326, as
amended).
!Prescription shall not run when the offender is absent from the
! • Incountry (Art. 91, par. 2, Act. No. 3326, as amended).

case where the imposable penalty is imprisonment and/or

a fine, the greater penalty shall be the basis for the
computation of prescription.
!
!21
c.For cases falling within the jurisdiction of the Katarungan
Pambarangay –
!The period of prescription is likewise interrupted by the filing of
the complaint with the punong barangay, but shall not
resume to run again upon receipt by the complainant of the
certificate of repudiation or of the certification to file action
issued by the lupon or pangkat secretary; Provided,
however, That such interruption shall not exceed sixty (60)
days from the filing of the complaint with the punong
barangay.
!Prescription shall not run when the offender is absent from the
country.
!5.RELEVANT
!1.A petition forJURISPRUDENCE
a change of venue of the preliminary investigation
should be addressed to the Secretary of Justice who has
control and supervision over the conduct of a preliminary
investigation which is a function of the Executive Department
and not the Judiciary (Larranaga v. C.A., 287 SCRA 581).
!2.Where the crime for violation of PD 532 (Anti-Piracy and Anti-
Highway Robbery Law of 1974) was committed aboard a
jeepney, the criminal action may be instituted in the court of
any municipality or territory where the vehicle passed during
the trip including the place of departure and arrival (People v.
Panlilio, 255 SCRA 503).
!3.Where the transport of cigarettes commenced out of Clark
Airbase and continued when the goods pushed through
Valenzuela, Bulacan until they were seized in Quezon City,
the courts in any of these places had jurisdiction over the
offenses (Co Kiat v. C.A., 187 SCRA 5 [1990]).
!4.The Supreme Court ruled in the case of People v. Esperanza,
G.R. Nos. 139217-24, June 27, 2003, the allegation that
“Irma is Nelson’s niece” is not specific enough to satisfy the
special qualifying circumstances of relationship. If the
offender is merely relation – not a parent, ascendant, step-
parent, guardian or common-law spouse of the mother of the
victim – the specific relationship must be alleged in the
Information, i.e., that he is a “relative by consanguinity or
affinity [as the case may be] within the third civil degree.”
!22
!5.In the preparation of the Information in case of qualified rape,
the attendant circumstances provided for under Sec. 11 of
RA 7659 must be stated with particularity. Not only the
qualifying but and the aggravating circumstances must not
only be proved but it must also be alleged; otherwise, it
should not be considered. (Catiis v. C.A., GR No. 153979,
February 09, 2006.).
!6.The exact age of the victim at the time of the commission of the
offense must be stated in the Information. (People v. Arillas,
GR No. 130593, June 19, 2000.).
!7.Where the Informations state that the offense wad committed
with the aggravating circumstances of insult or in disregard
of the respect due the offending party on account of the fact
that the accused is the father of the complainant, said
Informations properly pleaded the special circumstances of
relationship of father and daughter that would enable a
“person of sufficient understanding” to know what offense is
intended to be charged (People v. Alarcon, 310 SCRA 729).
!8.An aggravating circumstances, whether ordinary or qualifying,
should entitle the offended party to an award of exemplary
damages within the context of Article 2230 of the New Civil
Code even if the Information or criminal Complaint had not
alleged said circumstances as required by the Rule (People
v. Victor, G.R. No. 127904, December 05, 2002).
!9.The court gave fair warning to prosecutors that they must
prepare well crafted Informations that alleged the
circumstances qualifying and aggravating the crime charged;
otherwise, the same will not be considered by the court in
determining the proper penalty (People v. Rodolfo Oling
Madraga, January 20,2003).\
!10. The words “aggravating/qualifying”, “qualifying”, “qualified by”,
“aggravating” or “aggravated by” need not be expressedly
stated as long as the particular attendant circumstances are
specified in the Information. (People v. Aquino, 386 SCRA 39
[20002] as reiterated in People v. Paulino, 386 SCRA 391
[2002] and People v. Garin, 432 SCRA 394 [2004]).
!11. When conspiracy is charged as a mode in the commission of a
crime, the allegation in the Information should allege, thus:
!23
 a) by the use of the word “conpiracy” or its derivatives or
synonyms, such as confederate, connive, collude, etc. or b)
the allegations of basic facts constituting the conspiracy in a
manner that a person of common understanding would know
what is intended, and with such precision would enable the
accused to competently enter a plea to a subsequent
indictment based on the same facts (Estrada v.
Sandiganbayan, GR No. 148965, February 26, 2002).
!12. Allegations prevail over designation of the offense in the
Information for con___tion of the accused who may therefore
be convicted of a crime more serious in that named in the
title or preliminary part if such crime is covered by the
alleged in the body of the Information and its commission is
established by the evidence (Buhat v. C.A., 265 SCRA 701
[1996]).
!13.An Information for bigamy must state the time and place of the
!14.Timesecond wedding (People v. Bustamante, 105 Phil. 64).

!15.Whereismurder
irrelevant in rape (People v. Requiz, 318 SCRA 635).

or homicide results from the use of an

unlicensed firearm, the crime is no longer qualified illegal
possession, but murder or homicide, as the case may be.
The use of the unlicensed firearm is not considered as a
separate crime but shall be appreciated as a mere
aggravating circumstance (People v. Lazaro, 317 SCRA
435).
!16.An amendment after plea which changes the nature of the
offense is prohibited (Ricers v. C.A., GR No. 16041,
February 09, 2007). The factor that characterizes the charge
is the actual recital of facts. The real nature of the criminal
charge is determined not from the caption or preamble of the
Information nor from the specification of the provision of law
alleged to have been violated they being conclusions of law
but by the actual recital of facts in the Complaint or
Information (Lacson v. Executive Secretary, 301 SCRA 298
[1999]; People vs. Gutierrez, 403 SCRA 178).
!PART II. INQUEST
!I.GENERAL RULES
!
!24
A.CONCEPT
!Inquest is an informal and summary investigation conducted by a
public prosecutor in criminal cases involving persons
arrested and detained without the benefit of a warrant of
arrest issued by the court for the purpose of determining
whether or not said persons should remain under the
custody and correspondingly be charged in court.
!B.COVERAGE
!The conducted of inquest proceedings covers the following:
!1.All offenses covered under the Revised Penal Code ad special
laws, rules and regulations;
!2.Where the respondent is a minor (below eighteen [18] years
old), the inquest investigation shall cover only offenses
punishable by imprisonment of not less than six (6) years
and one (1) day, provided that no inquest investigation shall
be conducted unless the child-respondent shall have first
undergone the requisite proceedings before the Local Social
Welfare Development Officer pursuant to the Rules on
Inquest With Respect to Children in Conflict With the Law
(CICL) (please refer to Department Circular No. 39, s. 2007
on the “Rules on Inquest With Respect to Children in Conflict
with the Law as Defined Under Republic Act No. 9344,
Otherwise Known as the “Juvenile Justice and Welfare Act of
2006” found in Appendix “A” on p. 300 of this Manual).
!C.DESIGNATION OF AN INQUEST PROSECUTOR
!
The Chief State Prosecutor or the Provincial/City Prosecutor
shall designate the prosecutors assigned to inquest duties
and shall furnish the Philippine National Police (PNP) a list of
their names and their schedule of assignments. If, however,
there is only one prosecutor in the area, all inquest cases
shall be referred to him for appropriate action.
!D.VENUE OF INQUEST CASES
!Unless otherwise directed by the Chief State Prosecutor or the
Provincial/City Prosecutor, those assigned to inquest duties
shall discharged their functions during the hours of their
designated assignments and only at the police stations
!25
 headquarters of the PNP or at the office of the inquest
prosecutor in order to expedite and facilitate the disposition
of inquest cases.
!E.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 (Medina vs. Orozco, Jr.,
18 SCRA 1168).
!II.PROCEDURE
!A.COMMENCEMENT OF THE INQUEST PROCEEDINGS
!1.When Commenced
!The inquest proceedings shall be considered commenced upon
receipt by the inquest prosecutor of the following
documents:
!a.the affidavit of arrest duly subscribed and sworn to before him by
the arresting officer;
!
b.the investigation ;
!c.5the sworn statements of the complaint/s and witness/es; and
!d.other supporting pieces of evidence gathered by the police in
the course of the latter’s investigation of the criminal incident
involving the arrested or detained person.
!NOTE: The sworn complaint shall be accompanied by an
accomplished Preliminary Investigation Data Form (please
refer to NPS Investigation Form No. 01, s. 2008 on p. 60 of
this Manual.) and other supporting documents.
!!
2.Documents Required in Specific Cases
!
!26
 The inquest prosecutor shall, as far as practicable, require the
submission/presentation of the documents listed below to
wit:
!a.Murder, Homicide and Parricide
! • certified true/machine copy of the certificate of death of the
victim;
!
• autopsy report and the certificate of post-mortem examination,
if readily available; and
! • marriage
!b.Frustrated orcertificate in parricide cases.

Attempted Homicide, Murder, Parricide and

Physical Injuries
! • medical certificate of the complaining witness showing the
nature or extent of the injury and duration of healing;
!
• certification or statement as to duration of the treatment or
medical attendance;
! • certificate or statement as to duration of incapacity for work;
and
! • marriage certificate in frustrated or attempted parricide cases.
!c.Violation of the Dangerous Drugs Law/Comprehensive
Dangerous Drugs Act of 2002 (RA 9165)
! • chemistry report or certificate of laboratory examination duly
signed by the forensic chemist or other duly authorized
officer, or if unavailable, the field test results on the seized
drug, as attested to by a PNP Narcotics Command operative
or other competent person, in which case, the inquest
prosecutor shall direct the arresting officer to immediately
forward the seized drug to the crime laboratory for expert
testing and to submit the final forensic chemistry report to
the prosecutor’s office within five (5) days from the date of
the inquest;
!
• machine copy or photograph of the buy-bust money, if
available; and
!
!27
 • affidavit of the poseur-buyer, if any.
!d.Theft and Robbery, Violation of the Anti-Piracy and Anti-Highway
Robbery Law (PD 532) and Violation of the Anti-Fencing Law
(PD 1612)
! • a list/inventory of the articles and items subject of the offense;
and
!
• statement of their respective values.
!e.Rape, Seduction and Forcible Abduction with Rape
!• Ethe medico-legal report (living case report), if the victim
submitted herself for medical or physical examination.
!f.Violation
! • machineof copy the Anti-Carnapping Law (RA 6539)

of the certificate of motor vehicle registration;

!
• machine copy of the current official receipt of payment of the
registration fees of the subject motor vehicle;
! • photograph of the vehicle, if readily available;
! • certification from the Traffic Management Group / Land
Transportation Office; and
! • other evidence of ownership.
!
g.Violation of the Anti-Cattle Rustling Law (PD 533)
! • machine copy of the cattle certificate of registration; and
!• photograph of the cattle, if readily available.
!h.Violation of Illegal Gambling Law (PD 1602)
!• Gambling paraphernalia;
!
• Photograph of the gambling paraphernalia, if any; and
! • Cash money, if any.
!
!28
i. Illegal Possession of Firearms, Ammunitions and Explosives
(P.D. 1866 as amended by RA 8294)
!• Chemistry report duly signed by he forensic chemist; and
!
• Photograph of the explosives, if readily available.
!• Ballistics report, if readily available.
!j. Violation of the Fisheries Law (PD 704)
! • Photograph of the confiscated fish, if readily available;
!• Photograph of fishing paraphernalia, if any; and
! • Certification of the Bureau of Fisheries and Aquatic
Resources.
!k.Violation
! • marriageof contract/
RA 9262 (VAWC)

certificate; or
!
! • affidavit/evidence of “dating relationship”, if applicable; and
•

!In barangay protection order (BPO), if any.

case where the victim/offender is a minor, the inquest

!• birthprosecutor shall require the submission of the following:

certificate; or
!
!• dental chart accompanied by a certification from the dentist; or
•

!• affidavits of any of the parents/disinterested parties;

certificate of discernment from the LSWD in case covered by

!OtherRApieces9344 (the Juvenile Justice and Welfare Act).

of the evidence may also be submitted to establish

the commission of the foregoing offenses/crimes.
!3.Incomplete Documents
!When the documents presented are not complete to establish
probable cause the inquest prosecutor shall direct the law
!29
 enforcement authorities to submit in the proper form, the
required evidence within the period prescribed under the
provisions of Article 125 of the Revised Penal Code, as
amended (please refer to NPS INQ Form No. 01, s. 2008 on
p. 62 of this Manual). Failure to submit the required evidence
within the periods prescribed shall constrain the inquest
prosecutor to order the release of the detained person
(please refer to NPS INQ Form No. 02, s. 2008 on p. 64 of
this Manual).
!4.Instances Where the Presence of the Detained Person is
!The Dispensed With

presence of the detained person who is under custody shall

be ensured during the proceedings. His presence may,
however, be dispensed with in the following cases:
! • If he is confined in a hospital; or
!• If he is detained in a place under maximum security;
!The absence of the detained person for any of the foregoing
reasons shall be noted by the inquest prosecutor and
reflected in the record of the case.
!5.Charges and Counter-Charges
!All charges and counter-charges arising from the same incident
shall, as far as practicable, be consolidated, and the conduct
of the inquest proceedings shall be held jointly to avoid
contradictory or inconsistent dispositions.
!6.Determination of the Arrest by the Inquest Prosecutor
!The inquest prosecutor shall first determine if the arrest of the
detained person was made in accordance with paragraphs
(a), (b) and (c) of Sec. 5, Rule 113 of the Revised Rules on
Criminal Procedure which provide that arrests without a
warrant may be effected: (Go vs. Court of Appeals, 206
SCRA 138 [1992]; Umil,etal. vs. Ramos, 202 SCRA 251
[1991] and companion cases People vs. Malmstedst 198
SCRA 401 and People vs. Aminnudin, 163 SCRA 402
[1998]).
!
!30
a.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; or
!
b.When an offense has in fact just been committed, and the
arresting officer has probable cause to believe, based on
personal knowledge of facts or circumstances, that the
person to be arrested has committed it; and
!c.When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or is temporarily confined while his case is
pending, or has escaped while being transferred from one
confinement to another.
!For this purpose, the inquest prosecutor may summarily examine
the arresting officers on the circumstances surrounding the
arrest or apprehension of the detained person.
!Meaning of Probable Cause in Inquest Cases
!Probable cause means an actual belief or reasonable grounds of
suspicion (People vs. Tudtud, GR No. 144037, Sept. 26,
2003) that the person to be arrested is about to commit or is
attempting to commit a crime, or is in the act of committing a
crime, or has committed a crime, either in the presence or
without the presence of the arresting officer.
!7.Where Arrest of the Detained Person was Not Property
Effected
!Should the inquest prosecutor find that the arrest was not made
in accordance with the aforesaid provisions of the Revised
Rules on Criminal Procedure, he shall:
! • recommend the release of the person arrested or detained;
!
• prepare a resolution indicating the reasons for the action
taken; and
! • forward the same, together with the record of the case, to the
Chief State or Provincial/City Prosecutor for appropriate
action.
!
!31
 Where the recommendation for the release of the detained
person is approved by the Chief State Prosecutor or by the
Provincial/City Prosecutor but the evidence on hand
warrants the conduct of a regular preliminary investigation,
the inquest prosecutor shall:
! • serve the order of release on the law enforcement officer
having custody of said detainee and (please see NPS INQ
Form No. 02, s. 2008 on p. 64 of this Manual);
!
• direct the said officer to serve upon the detainee the subpoena
or notice of preliminary investigation, together with the
copies of the charge sheet or complaint, affidavits or sworn
statements of the complainant and his witnesses and other
supporting evidence (please refer to NPS INQ Form No. 03,
s. 2008 on p. 66 of this Manual).
!8.Where the Arrest of the Detained Person was Properly
Effected
!Should the inquest prosecutor find that the arrest was properly
effected, the detained person shall be asked if he desires to
avail himself of a preliminary investigation and, if he does,
the consequences thereof must be explained to him
adequately.
!The detained person, with the assistance of a lawyer of his own
choice, shall then be made to execute a waiver of the
provisions of Article125 of the Revised Penal Code, as
amended. (please refer to NPS INQ Form No. 04, s. 2008 on
p. 67 of this Manual).
!The preliminary investigation may be conducted by the inquest
prosecutor himself or by any other prosecutor to whom the
case may be assigned by the Chief State Prosecutor or the
Provincial/City Prosecutor, which investigation shall be
terminated within fifteen (15) days from its inception.
!B.INQUEST PROPER
!Where the detained person does not opt for a preliminary
investigation or otherwise refuses to execute the required
waiver, the inquest prosecutor shall proceed with the
conduct of the inquest proceeding, notwithstanding the
absence of a counsel, by examining the sworn statement/
!32
 affidavits of the complainant and the witnesses and other
supporting evidence submitted.
!If necessary, the request prosecutor shall require the presence of
the complaining witnesses and subject them to an informal
and summary investigation or examination for purposes of
determining the existence of probable cause.
!If the inquest prosecutor finds that probable cause exists, he
shall forthwith prepare the resolution with the corresponding
Complaint/Information with the recommendation that the
same be filed in court. The Complaint/Information shall
indicate the offense/s committed and the amount of bail
recommended, if applicable. However, in inquest cases for
crimes covered by the Rules on Summary Procedure and
RA 6036 where no bail is required, the inquest prosecutor
shall recommend the release of the arrested person and
prepare the Information for filing with the court.
!Thereafter, the record of the case, together with the resolution
and the Complaint/Information, shall be forwarded to the
Chief State Prosecutor or the Provincial/City Prosecutor for
approval and subsequent filing before the proper Court.
!1.Content of the Information
!The Complaint/Information shall, among others, contain:
!a.a certification by the filing prosecutor that he is filing the same in
accordance with the provisions of Sec. 6, Rule 112, Revised
Rules on Criminal Procedure in cases cognizable by the
Regional Trial Court (please refer to NPS INQ Form No. 05,
s. 2008 on p. 68 of this Manual);
!b.the full name and aliases, if any, of the accused;
!c.unidentified accused person/s designated as “John/Jane Does”,
!d.the ifaddress
he/she is in conspiracy with the identified accused;

of the accused;
!e.the place where
!f.the full names andaccused is actually detained;

addresses of the complainant and witnesses;

!
!33
g.description of the items subject matter of the complaint, if there
are any;
!h.the full name and address of the evidence custodian;
!i. the age of the complainant or the accused, if below eighteen (18)
years of age;
!j. the full names and addresses of the parents, custodian or
guardians of the minor complaint or accused, as the case
may be;
!k.attendance of aggravating and/or qualifying circumstances, if
any.
!2.Action to be Taken When There is an Absence of Probable
Cause
!
If the inquest prosecutor finds no probable cause to indict the
arrested/detained person, he shall:
!a.recommend the release of the arrested or detained person;
(please refer to NPS INQ Form No. 02, s. 2008 on release
found on p. 64 of this Manual);
!b.prepare a resolution of dismissal indicating therein the reasons
for the action taken; and
!c.forthwith forward the record of the case to the Chief State
Prosecutor or the Provincial/City Prosecutor for appropriate
action.
!When the Chief State Prosecutor or the Provincial/City
Prosecutor sustains the recommendation of the inquest
prosecutor for the dismissal of the complaint, the record of
the case shall forthwith be forwarded to the Secretary or the
Office of the Regional State Prosecutor as the case may be,
for automatic review. (please refer to DOJ Circular No. 46, s.
2003 on “Automatic Review of Dismissed Cases Involving
RA 9165 [Comprehensive Dangerous Drugs Act of 2002]”
found in Appendix “B” on p. 303 of this Manual)
!Meanwhile, the arrested or detained person shall be released.
!
!34
3.Action to be Taken When the Arrested Person Executes a
Waiver of Article 125 of the Revised Penal Code
!Should the arrested person execute a waiver, the inquest
prosecutor shall set the case for preliminary investigation
which shall be terminated within fifteen (15) days before the
execution of the waiver.
!4.Posting of Bail by the Arrested/Detained Person
!a.If offense is bailable
!A person lawfully arrested/detained under Sec. 6, Rule 112 of the
Revised Rules on Criminal Procedure may post bail before
the filling of the Information without being deemed to have
waived his right to a preliminary investigation. For this
purpose, the inquest prosecutor shall simply prepare a
certification that the person arrested is being charged for an
offense in an inquest proceeding and specifying the
recommended bail therefor. Applying for and and posting bail
does not result in the waiver of the validity of an unjustified
warrantless arrest (People vs. Barros,231 SCRA 557.)
!b.If offense is non-bailable
!The inquest prosecutor must move for the suspension of the bail
hearing until the fifteen (15)-day preliminary investigation of
the inquest proceeding is terminated and the resolution is
promulgated.
!5.Termination of Inquest Proceedings
!The inquest proceedings must be terminated within the period
prescribed under the provision of Article 125 of thev Revised
Penal Code, as amended (12 hours for light offenses; 18
hours for less graveoffenses; 36 hours for grave offenses
counted from the time of arrest).
!However, the following factors are taken into consideration in
determining whether or not Article 125 of the Revised Penal
Code has been violated:
!1.the means of communication
!
2.the hour of the arrest
!35
 !
3.other circumstances such as:
!
a.the time of surrender; and
!
b.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, docket
the case and have the order of commitment prepared; or
!
• availability of the judge to act on the case; or
! • the fact that government offices open for business transactions
at 8:00 o’clock in the morning and close at 5:00 o’clock in the
afternoon
!• the period prescribed in Article 125 of the Revised Penal Code
shall not be applicable when the persons arrested/ detained
without the benefit of a warrant of arrest issued by the court
are children defined under Republic Act No. 9344, otherwise
known as the “Juvenile Justice and Welfare Act of
2006.” (please refer to Department Circular No. 39 s. 2007
on the “Rules on Inquest With Respect to Children in Conflict
with the Law as defined Under Republic Act No. 9344,
Otherwise Known as the “Juvenile Justice and Welfare Act of
2006” found in Appendix “A” on p. 300 of this Manual ”)
!!
III.OTHER MATTERS

A.PRESENCE OF THE INQUEST PROSECUTOR AT THE

CRIME SCENE
!Whenever a dead body is found by the law enforcement
authorities and there is reason to believe that the death of
the person resulted in foul play, or from the unlawful acts or
omissions of other persons and such fact has been brought
to his attention, the inquest prosecutor shall:
!1.forthwith proceed to the crime scene or pace of discovery of the
dead person;
!
!36
2.cause the immediate autopsy of the dead person to be
conducted by the appropriate medico-legal officer in the
locality or the PNP medico legal division or the NBI medico-
legal office, as the case may be;
!
3.direct the police investigator to cause the taking of photographs
of the crime scene or place of discovery of the dead body;
!4.supervise the crime scene investigation to be conducted by the
police authorities as well as the recovery of all articles and
pieces of evidence found them to see to it that the same are
safeguarded; and that the chain of the custody thereof be
properly recorded; and
!5.submit a written report of his/her finding to the Chief State
Prosecutor or Provincial/City Prosecutor as the case may be
for appropriate action.
!B.SANDIGANBAYAN CASES
!Should any complaint cognizable by the Sandiganbayan be
referred inquest prosecutor for the conduct of inquest
proceedings, the latter shall re___ from accepting the same
and shall advise the law enforcer to file the complaint before
the Office of the Ombudsmand or the Office of the Special
Prosecutor through any of the branch clerk of court in the
locality.
!C.ABSENCE OR UNAVAILABILITY OF THE INQUEST
! ThePROSECUTOR
inquest prosecutor shall take appropriate remedial
measures to ___ any defect in complaint when the same
has been filed directly before the ___ by the police officer or
the offended party because of the unavailability inquest
prosecutor.
!D.RECOVERED ARTICLES
!1.Responsibility of the Inquest Prosecutor:
!The inquest prosecutor shall:
!
!37
a.See to it that all the articles recovered by the law enforcement
authorities at the time of the arrest or apprehension of the
arrested/detained are physical inventoried, checked and
accounted for;
!b.Make sure that the corresponding photographs of the recovered
articles/properties are taken and which photographs should
be attached to the record of the case; and
!c.Ensure that the items recovered are duly safeguard by the law
enforcement and the chain of custody is properly recorded.
!2.Deposit of Recovered Articles/Properties:
!The said articles shall be properly deposited by the police
investigator with the police evidence custodian.
!E.RELEASE OF RECOVERED ARTICLES
The inquest prosecutor shall, with the prior approval of the
Chief State Prosecutor or the Provincial/City Prosecutor or
his duly authorized representative, order the release (please
refer to NPS INQ Form No. 06, s. 2008 on p. 69 of this
Manual) of recovered articles to their lawful owner or
possessor, subject to the conditions that:
!1.there is a written request for their release (please refer to NPS
!2.the INQ Form No. 07, s. 2008 on p. 71 of this Manual);

person requesting the release of said articles is shown to be

the lawful owner or possessor thereof;
!3.the requesting party undertakes under oath to produce said
!4.the articles before the court when so required;

requesting party, if he is a material witness to the case,

affirms or reaffirms his statement concerning the case and
undertakes under oath to appear and testify before the court
when so required;
!5.the said articles are not the instruments, or tools in the
commission of the offense charged nor the proceeds thereof;
and
!
!38
6.photographs of said articles are first taken and duly certified to
by the police evidence custodian as accurately representing
the evidence in his custody.
!IV.RELEVANT JURISPRUDENCE
!1.The permissible warrantless arrests are:
!(1)arrests in flagrante delicto;
!
(2) arrests effected in hot pursuit;
!(3) arrest of escaped prisoners (People vs. Macalaba, 395
SCRA 461).
!
2.After the filing of the Information in court without a preliminary
investigation, the accused may, within five (5) days from the
time he learns of its filing, ask for a preliminary investigation
with the same right to adduce evidence in his defense as
provided under Sec. 6, Rule 112 of the Rule 112 of the Rules
on Criminal Procedure. This five-day rule is mandatory
(People vs. Figueroa, 27 SCRA 1239 [1969]).
!3.Reliable information alone, absent any overt act indicative of a
felonious enterprise in the presence of and within the view of
the arresting officers, are not sufficient to constitute probable
cause that would justify an in flagrante delicto arrest (People
vs. Molina, GR No. 133917, February 19, 2001, en banc;
See also People vs. Chua, 396 SCRA 657; People vs.
Nuevas, G.R. No. 170233, February 22, 2007).
!4.A warrantless arrest is not justified by the mere fact that a crime
is being committed in one’s presence. The arresting officer
must have personal knowledge of such commission. The
knowledge must precede the arrest. The arrest cannot be
justified by discovery thereafter that the person was
committing a crime (People vs. Judge Laguio, GR No.
128587, March 16, 2007).
!5.Buy-bust operations are considered arrests in flagrante delicto.
!6.“Just(People vs. Lacap, 368 SCRA 64.).

been committed ” connotes immediacy in point of time (the

time interval between the actual commission of the crime

!39
 and the arrival of the arresting officer must be breif). (People
vs. Del Rosario, 305 SCRA 740 [1999])
!7.A warrantless arrest made three (3) days after the commission
of the crime (People vs. Monda, November 22, 1993, 48
SCAD 478, 228 SCRA 115) or 19 hours thereafter (People
vs. Manlulu, April 22, 1994, 50 SCAD 71, 231 SCRA 701)
were held to be unlawful.
!8.When a police officer sees the offense, although at a distance,
or hears the disturbances created thereby, and proceeds at
once to the scene thereof, he may effect an arrest without a
warrant since the offense is deemed committed in his
presence or within his view (People vs. Sucro, 195 SCRA
388).
!9.The “personal knowledge” of the fact of rape which was supplied
by the rape victim herself to the arresting officer falls within
the purview of a warrantless arrest (People vs. Alvario, 275
SCRA 529 [1997]).
!10.A letter invitation is equivalent to arrest. Where the inivation
comes from a powerful group composed predominantly of
ranking military officers and the designated interrogation site
as a military camp, this is obviously a command or an order
of arrest (Sanchez, vs. Demetriou, 46 SCAD 152, 227 SCRA
627).
!V.HELPFUL HINTS
!1.The conduct of an inquest proceeding should never be initiated
!2.Theinaffidavits
the absence of an affidavit of arrest.

of arrest and statements/affidavits of the complaint

and his witnesses may be subscribed before another
prosecutor or a notary public but the same should be re-
affirmed before the inquest prosecutor.
!3.Inquest proceedings should always be conducted by
prosecutors in proper attire.
!4.Inquest proceedings should never be conducted in the
prosecutor’s residence.
!
!40
5.During the conduct of inquest proceedings, the inquest
prosecutor must keep calm and observe proper decorum.
!!
!

!41
 !! TEMPLATES OF INQUEST FORMS
If yes, indicate details below.

!! I.S No. ____________________

NPS Investigation Form No. 01, s. 2008
!!
Republic of the Philippines
!!
Department of Justice
National Prosecution Service
!
!!
_________________________
_________________________
!!
!! INVESTIGATION DATA FORM

!!
To be accomplished by the Office

DATE RECEIVED :________ NPS DOCKET NO. :_________

!!
(stamped and initialed):___________ Assigned to: _________
Time Received:___________ Date Assigned: ____________

!!
Receiving Staff:_____________________

!
!!
To be accomplished by complaint/ counsel/law enforcer
(Use back portion if not sufficient)
!!
!!
COMPLAINT/S: Name, Sex Age & RESPONDENT/S: Name, Sex,
Age &
Address
!! Address
_________________________ ________________________

!!
_________________________ ________________________

LAW/S VIOLATED: WITNESS/ES: Name & Address

!!
_________________________ _______________________
_________________________ _______________________

!!
_________________________ _______________________

!!
DATE & TIME of COMMISSION: PLACE of COMMISSION:
_________________________ ________________________
!!
_________________________ ________________________
Has a similar complaint been filed before any other office?
*YES?___ NO___
!!
1. Is this complaint been filed before any other office? *YES___ NO____
2. Is this complaint related to another case before this office?

!!!
3. * YES____ NO___

!! Handling Prosecutor:_____________

!42
 !!
!! !!
!! !!
!! !!
!!
!I CERTIFY, under oath,CERTIFICATION*
!! true and correct to thethatbest all information on this sheet are
of my knowledge and belief,
!! that I have not commenced any action 0r filed any claimed
involving the same issues in any court, tribunal, or quasi-
!! judicial agency, and that if I should thereafter learn thatv a
seminar action has been filed and/or is pending, I shall
!! report that the fact to his Honorable Office within five (5)
days from knowledge thereof.
!
!! _____________________________
(Signature over printed name)
!SUBSCRIBED AND
!! of ______________,20 SWORN TO before me this________ day
____, in
!! ___________________________.
!! ______________________________
Prosecutor Administering Oath
!*1,2,3 and Certification
!! cases need not be accomplished for inquest

!!
!!
!!
!!
!!
!!
!
!43
!! !!
NPS INQ Form No. 01, s. 2008
!! Republic of the Philippines
Department of Justice

!!NATIONAL PROSECUTION SERVICE

______________________________
!!!
______________________________

!!
______________________,
Complainant/s,
I.S. No. ____________________
!!
-versus-
______________________,
For: ______________________

!! Respondent/s.
x------------------------------------x

!!
ORDER
(To submit additional evidence/documents)
!!
________________________________
________________________________

!!
________________________________
In connection with the investigation being conducted in the above-captioned,
case you are hereby directed to submit the following evidence/
!!
documents, to wit:
1. _______________________________________________
!!
2. _______________________________________________
3. _______________________________________________

!!
4. _______________________________________________
5. _______________________________________________

!!
within______ hours from receipt hereof (the period shall not exceed twelve
[12] hours, eighteen [18] hours or thirty-six [36] hours, as the case may

!!
be, from arrest); otherwise, the undersigned shall order the release of
the above-named respondent, and this case shall be set for preliminary
investigation.
!!
_______________________________________, Philippines

!!!
______________________20 _____ ,

_________________________

!! Inquest Prosecutor
(Signature over printed name)

!!!
Received copy, this ____ day of _________________, 20 _____.

!!
Copy received by:
_________________________
Investigating/Police Officer
!!
(Signature over printed name)

!!
!44
!!
NPS INQ Form No. 02, s. 2008
Republic of the Philippines
!!
Department of Justice
NATIONAL PROSECUTION SERVICE

!!
___________________________
___________________________,
Complainant,

!!
I.S.No.__________________

-versus-
!! I.S. No. ____________________
For:__________________

!!
___________________________,
Respondent.

!!
x--------------------------------------x

RELEASE ORDER
!!
(Of Detained/Arrested Person)
__________________________________________________

!!
Unless otherwise detained for some other legal cause, you are hereby directed to
re_x_ the person of ________________________________ who is presently under

!!
your custo_x_ connection with the above-captioned case, it appearing that:*
□ respondent was not lawfully arrested pursuant to the provisions of
Section 5, Rule 113 of the Revised Rules on Criminal Procedure.
!!□ the documents required by the undersigned have not been
submitted by the police investigating officer.

!!
□ there exists no probable cause on the basis of the evidence
presented.
!
!!
*Check appropriate box/boxes and affix your initial. In this connection, you are hereby
directed to serve upon the above-named respondent the attached subpoena together
with the copies of the charge sheet/complaint, affidavit and supporting documents/
!!
evidence._______________________________,
Philippines._____________________20 ________ .

!
!!
__________________________
Inquest Prosecutor

! (Signature over printed name) APPROVED:

!!
_______________________________
Chief State/Provincial/City Prosecutor

!
(Signature over printed name)

!!
Received copy, this ____ day of ____________, 20_______.

!!
_______________________
!!
!! Investigating/Police Officer
(Signature over printed name)

!!
!45
!!!
NPS INQ Form No. 03, s. 2008
!! Republic of the Philippines
Department of Justice
!! NATIONAL PROSECUTION
________________________
!! ________________________
_________________________,
!! Complainant/s,
-versus- I.S. No. ____________________
!!________________________,
For_______________________

!! Respondent/s.
x-------------------------------------x
SUBPOENA TO RESPONDENT/S
!!
TO:_____________________________________________________
___________________________________________________
!!! ________________________________________________

!!!
GREETINGS:

!! Under and by virtue of the authority vested in me by the law, you

are hereby directed to submit your counter affidavit and other
!! supporting documents or affidavits of your witness/es, if any, to
be sworn to before me on _____________________, 200
_____at _______a.m/p.m. attached is a copy of the complaint
!!! and other evidence submitted by the complaint.

!! You are hereby WARNED that failure on your part to comply with
the subpoena shall be considered as a waiver of your right to
!! present your defense and the case shall be considered
submitted for resolution based on the evidence on record.
!!! WITNESS MY HAND this___________ day of
!! _________________________, 200 _____ a
_________________,Philippines.

!!! _______________________________
INVESTIGATING PROSECUTOR
!!
!!
!!
!
!46
!!!
!!NPS INQ Form No. 04, s. 2008

!!
Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
!!
_______________________________
_______________________________
!!
______________________________,
Complainant,
!! -versus- I.S. No. ________________
For:_______________________
!!
_______________________________,
Respondent

!2008
x-----------------------------------------------x

REQUEST FOR PRELIMINARY INVESTIGATION

!
AND WAIVER OF ARTICLE 125, REVISED PENAL CODE
(Where Arrest was Properly Effected)
!
With the assistance of counsel of my choice, I wish to avail of my
right to a preliminary investigation, and for this purpose, I hereby
voluntary waive my rights under the provisions of Article 125 of
the Revised Penal Code. Pending the completion of the
preliminary investigation proceedings, I agree to remain under
police custody.

________________________, Philippines
(Place)
________________________
(Date)

_________________________
Respondent
(Signature over printed name)
! Assisted By:
!
________________________________
Counsel
(Signature over printed name)

!47
!
NPS INQ Form No. 05, s. 2008

!!!
CERTIFICATION
(For Information in Inquest Cases)

I hereby certify that the foregoing Information is filed pursuant to Sec. 6, Rule 112 of
1985 Rules on Criminal Procedures, as amended, the accused not having opted
to avail of right to preliminary investigation and not having executed a waiver
pursuant to Article 125 of Revised Penal Code. I further certify that this
Information is being filed with the prior authority the Chief State Prosecutor/
Provincial/City Prosecutor.
_________________________
Inquest Prosecutor (Signature over printed name)

!
_____________________________________________________________________

NPS INQ Form No. 06, s. 2008

Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
_______________________________

!
_______________________________

_________________________,
Complaint,
I.S. No. __________________
-versus- For: ______________________
__________________________,
Respondent.
x--------------------------------------x
RELEASE ORDER
(Of Recovered Articles)
THE EVIDENCE CUSTODIAN
________________________

!
________________________

On the basis of the request made by __________________________for the release

! to his custody of the articles/properties particularly described as follows:

you are hereby directed to release to said ________________________, the above-

described articles/properties which are presently under your custody, unless the
same are being held for some other lawful cause.
_____________________, Philippines, ____________20 _____.

! _________________________
Inquest Prosecutor
(Signature over printed name)
APPROVED:
________________________________
Chief State / Provincial / City Prosecutor

! (Signature over printed name)

! Received copy, this_____ day of __________________, 20 ________.

_______________________________
Evidence Custodian

! (Signature over printed name)

!48
!
NPS INQ Form No. 06, s. 2008
!Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
_______________________________
_______________________________
!
_________________________,
Complaint,
I.S. No. __________________
-versus- For: ___________________,’
!
________________________,
Respondent.
x--------------------------------------x
RELEASE ORDER
(Of Recovered Articles)
THE EVIDENCE CUSTODIAN
________________________
________________________
________________________
! On the basis of the request made by
__________________________for the release to his custody of
the articles/properties particularly described as follows:
!
you are hereby directed to release to said
________________________, the above-described articles/
properties which are presently under your custody, unless the
same are being held for some other lawful cause.
_____________________, Philippines, ____________20 _____.

_________________________
Inquest Prosecutor
(Signature over printed name)
APPROVED:
________________________________
Chief State / Provincial / City Prosecutor
(Signature over printed name)
! Received copy, this_____ day of __________________, 20
________.
! _______________________________
Evidence Custodian
(Signature over printed name)

!49
! NPS INQ Form No. 07, s. 2008
Republic of the Philippines

 Department of Justice
NATIONAL PROSECUTION SERVICE
_________________________

! _________________________

_________________________
Complaint,
-versus- I.S. No. ___________________
For:__________________
_________________________
Respondent.

!
x----------------------------------x

REQUEST FOR RELEASE

With UNDERTAKING
(Of Recovered Articles by Requesting Party)

!
_______________________________________________________

I am respectfully requesting the release to my custody of certain articles/ properties,

! more particularly described as follows:

which were recovered by the police authorities and presently in the custody of
________________________, and in connection therewith, I declare under
oath:
1. That I am the lawful owner/possessor thereof, as evidenced by
________________, copies of which are hereto attached;
2. That said articles/properties are not instruments or tools in the commission of any
offense nor the proceeds thereof;
3. That I undertake to procedure the same before your Office or the court when so
required;
4. That I have caused the said articles/properties to be photographed/ photocopied
and certified by the police custodian as accurately representing the same;
5. That I am affirmed the affidavit/statement executed by me on _______________
before ____________and hereby bind myself under penalty of law to appear and

! testify thereon in court when so required.

!
__________________, Philippines, _______________20 ________.

__________________________
Requesting Party

! (Signature over printed name)

SUBSCRIBED AND SWORN TO before me this ____________day of

! _______________, 20_________, Philippines.

__________________________
Administering Officer
(Signature over printed name)
RECOMMENDING APPROVAL:
_________________________
Investigating Prosecutor

!
(Signature over printed name)

APPROVED:
___________________________
Chief State/Provincial Prosecutor

!50
 INQUEST PROCEDURE

!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!! (12 hours for light; 18 hours for less grave offense ; 36 hours for grave offenses )
!
FILING OF
INFO IN
SUSTAIN COURT
WITH RECOMMENDED
ACTION BY
PROBABLE FILING OF INFO
CP/PP/CSP
CAUSE IN COURT

REVERSE
DISMISSAL OF COMPLAINT
NO & RELEASE OF
RESPONDENT
RECOMMEND
RELEASE OF ACTION BY SUSTAIN
W/O PROBABLE RESPONDENT CP/PP/CSP
ARREST CAUSE
PROPERLY
EFFECTED
REVERSE FILING INFO IN
COURT

!51
SEE PROCEDURE
AFFIDAVIT OF PRELIMINARY
ARREST + IR+SS+ INVESTIGATION OF P.I. BUT
OTHER DOC WITH PROPER
WITHIN 15 DAYS

REGULAR P.I. + YES

FLOWCHART ON THE INQUEST PROCEEDINGS

RELEASE PRELIMINARY INVSTIGATION

ARREST NOT
PROPERLY
EFFECTED
ACTION BY
RECOMMENDS CP/PP/CSP
DISMISSAL OF CONTINUE WITH
COMPLAINT +
RELEASE OF
RESPONDENT
NO
DISMISSAL OF COMPLAINT +
RELEASE OF RESPONDENT
PART III. SUMMARY INVESTIGATION
!I.GENERAL RULES
!A.CONCEPTS AND PRINCIPLES
!1.Summary Investigation – refers to the investigation conducted
by the prosecutor to determine the existence or non-
existence of probable cause in cases that do not require
preliminary investigation, (Sec. 8, Rule 112, as amended,
Revised Rules on Criminal procedure) namely those
involving offenses in which the prescribed penalty of
imprisonment does not exceed four (4) years and two (2)
months, regardless of the fine.
!
2.Summary Procedure – (as distinguished from summary
investigation) – refers to the court procedure in criminal
cases covered by Supreme Court Resolution of 1991, as
amended, involving offenses in which the penalty prescribed
by the law does not exceed six (6) months of imprisonment,
or fine not exceeding one thousand pesos (Php 1,000.00).
!B.COVERAGE
!All offenses punishable by imprisonment of less than four (4)
years two (2) months and one (1) day, viz;
!1.Violations of Traffic Laws, Rules and Regulations;
!
2.Violations of the Renal 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, or a fine not exceeding (P1,000.00), or both,
irrespective of other imposable penalties, accessory or
otherwise, or of the civil liability arising therefrom: provided,
however, that in the offenses involving damage to property
through criminal negligence, this rule shall govern where the
imposable fine does not exceed ten thousand pesos
(P10,000.00)
!Offense with six (6) months imprisonment or fine of P1000.00:
!52
1.Art. 130 – Searching Domicile Without Witnesses
!
2.Art. 144 – Disturbance of Proceedings
!3.Art. 151 – Resistance and Disobedience to a Person in Authority
or the Agents of Such
!4.Art.153
!5.Art.154 –– Tumults and Other Disturbances of Public Order

Unlawful Use of Means of Publication and Unlawful

Utterances.
!6.Art. 155 – Alarms and Scandals
!7.Art. 175 – Using False Certificates
!8.Art. 178 – Using Fictitious Name and Concealing True Name
!9.Art. 179 – Illegal Use of Uniforms and Insignia
!10.Art. 200 – Grave Scandal
!11.Art. 202 – Vargants and Prostitues (1 Offender)
st

!12.Art 217 – Abandonment of Minor by Person Entrusted With His

!13.Art.Custody
!14.Art. 265 – Less Serious Physical Injuries

!15.Art. 266 – Slight Physical Injuries

!16.Art. 239 – Unlawful Arrest

!17.Art. 275 - Abandonment of Helpless Person

!18.Art. 276 - Abandoning a Minor (Paragraph 1)

!19.Art. 281 – Other Forms of Trespass

!20.Art. 282 – Grave Threats (Par. 2 [Without Condition])

!21.Art. 283 – Light Threats

! 285 – Other Light Threats

!53
22.Art. 286 – Grave Coercion
!23.Art. 287 – Light Coercion
!24.Art. 288 – Other Similar Coercion
!25.Art. 289 – Formation, Maintenance and Prohibition of
!26.Art.Combination or Capital or Labor thru Violence or Threats

290 – Discovery of Secrets thru Seizure of

Correspondence (Par. 2)
27.Art. 291 – Revealing Secrets with Abuse if Office
!
28.Art. 308 – Theft if the amount involved does not exceed P50.00
!29.Art. 312 – Occupation of Real Property or Real Rights in
!30.Art.Property
!31.Art. 315 – Estafa involving P200.00

!32.Art. 317 – Swindling of Minor

!33.Art. 318 – Other Deceits

!34.Art. 329 – Other Mischief (Malicious Mischief)

!35.Art. 338 – Simple Seduction

339 – Acts of Lasciviousness with the Content of the

Offended Party
!36.Art. 358 – Light Oral Defamation (2 Par.)
nd

!37.Art. 363 – Incriminating Innocent Person

!38.Art. 364 – Intriguing against Honor
!39.Art. 389 – Light Slander by Deed (2 Par.)
nd

!40.PD 1227 – Unlawful Entry to U.S. Naval Facilities

!41.PD603 – Non-Support
!II.PROCEDURE
!
!54
Within ten (10) days from assignment of the complaint, the
investigating prosecutor shall initiate the following actions:
!1.Act on the complaint based on the affidavits and other
supporting documents submitted by the complainant;
!
2.Prepare a brief resolution recommending the dismissal of the
complaint for the approval of the Chief State Prosecutor/
Regional State Prosecutor, Provincial/City Prosecutor if he
finds no probable cause;
!3.Prepare a resolution and the corresponding Information for the
approval of the Chief State P:rosecutor/ Regional State
Prosecutor, Provincial/ City Prosecutor if he find sufficient
ground to endanger a well-found belief that a crime has been
committed and the respondent is probably guilty thereof and
should be held for trial; and,
!4.File the Information in court if the resolution is approved. The
information shall not contain a certification that a preliminary
investigation has been conducted. Where the prosecutor
opts to conduct preliminary investigation, he/she shall follow
the procedure under Part IV of this Manual.
!PART IV. PRELIMINARY INVESTIGATION
!I.GNERAL RULES
!A.CONCEPTS AND PRINCIPLES
!A preliminary investigation is an inquiry or proceeding to
determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed and
the respondent is probably guilty thereof and should be held
for trial (Sec. 1, Rule 112, Revised Rules on Criminal
Procedure).
!B.NATURE OF A PRELIMINARY INVESTIGATION
!1. It is an Executive Function
! A preliminary investigation is a non-judicial function. It
essentially executive in nature (A.M. No. MTJ-00-1256,
December 15, 2000). It is a function of the Office of the
National Prosecution Service which is under the control and
!55
 supervision of the Department of Justice within the executive
branch of the government.
!2.It is a Preliminary in Nature.
The investigation is advisedly called preliminary, as it is yet to
be followed by the trial proper. The investigating officer acts
upon probable cause and reasonable belief, not proof
beyond reasonable doubt. The occasion is for the
presentation of such evidence only as may engender a well
founded belief that an offense has been committed and that
the accused is probably guilty thereof (Mayuga v. Maravilla,
18 SCRA 1115).
!3.It is a Summary and inquisitorial Proceeding.
! A preliminary investigation is not a judicial trial or is any part
thereof, it being merely a more or less summary proceeding
intended to discover the person/s who may reasonably be
charged with a crime so as to enable the prosecutor to
prepare his Complaint or Information (U.S. v. Yu Tuico, 34
Phil. 2009; U.S. v. Marfori, 35 Phil. 606).
! While it is a summary proceeding, it is done in a scrupulous
manner to prevent material damage to a potential accused’s
constitutional right to liberty and the guarantees of freedom
and fair play (Drillon v. C.A., 258 SCRA 280 [1996]).
! It is merely inquisitorial and it is often the only means of
discovering the persons who may be reasonably charged
with a crime, to enable the prosecutor to prepare his
Complaint or Information (Tandoc v. Resultan, 175 SCRA 37
[1989]).
!4.It is a Judicial Inquiry or Proceeding.
! The conduct of a preliminary investigation, which is defined
as “an inquiry or proceeding for the purpose of determining
whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and that the
respondent is probably guilty thereof, and should be held for
trial” is, like court proceedings, subject to the requirements of
both substantive and procedural due process. This is
because a preliminary investigation is considered a judicial
proceeding wherein the prosecutor or investigating officer, by
!56
 the nature of his functions, acts as a quasi-judicial body.
(Cruz, v. People, 237 SCRA 439, reiterating Cojuangco v.
PCGG 190 SCRA 226 [1990]).
! Hence, in a preliminary investigation, the prosecutor or
investigating officer acts as a quasi-judicial officer (A.M. No.
MTJ-00-1256, December 15, 2000) although the Department
of Justice in itself is not considered a quasi-judicial body.
(Cruz, Jr. v. People, 223 SCRA 439 [1994])
!C.RIGHT TO A PRELIMINARY INVESTIGATION
!1.It is not a Constitutional Right.
! The right to a preliminary investigation is not a constitutional
right, meaning, it is not expressly provided for in the
Constitution. It is not therefore guaranteed by the
Constitution unlike for instance, the right to counsel or to
remain silent which is expressly embodied under Sec. 12 of
Article III of the Constitution.
!2.It is Merely a Statutory Grant.
! Rather, the right to a preliminary investigation is a statutory
grant (Salonga vs. Pano, 134 SCRA 277). Hence, a law
denying the right to a preliminary investigation is not
unconstitutional (Lazoda vs. Hernandez, 92 Phil. 1051). For
instance, Sec. 6 [formerly Sec. 7] of Rule 112 of the Revised
Rules on Criminal Procedure provides for the filing of the
Information inquest cases, even without the conduct of a
preliminary investigation.
!3.It is a Personal Right.
! The right to a preliminary investigation is also a personal
right, which can be waived expressly or impliedly. There is
an implied waiver when an accused refuses to submit his
counter-affidavit, or when he fails to invoke such right or to
question the irregularity of the preliminary investigation that
was conducted, but instead submits himself for arraignment
and go to trial (People v. Valencia, 214 SCRA 88; People v.
de Asis, 228 SCRA 267).
! In inquest cases, the accused impliedly waives his right to a
preliminary investigation, if he fails to invoke the same within
!57
 five (5) days from the time he learns of the filing Information.
This five-day period for the filing of a motion for preliminary
investigation after an information has been filed in court
against an accused who was arrested without a warrant, has
been characterized as mandatory (Sec. 6, Rule 112, supra.).
!4.It is a Substantive Right.
! While the right to a preliminary investigation is merely statutory,
nevertheless, it is a substantive right and to withhold it would
be to transgress constitutional due process (Salonga v.
Pano, 134 SCRA 438).
!D.COVERAGE
! All offenses where the penalty prescribed by law is at least four
(4) years, two (2) months and one (1) day, without regard to
the fine (Sec. 1, par 2, Rule 112, supra.).
! All offenses punishable by imprisonment of less than four (4)
years two (2) months and one (1) day where the prosecutor
believes that a preliminary investigation should be
conducted.
! All offenses committed by public officials or employees in
connection with the performance of their official duties and
functions.
!E.QUANTUM OF EVIDENCE REQUIRED
! In preliminary investigations, the evidence required for
purposes of filing a Complaint or Information in court is
merely such evidence as would engender a well-founded
belief that a crime has been committed and the respondent
is probably guilty thereof, and should be held for trial (Sec.
1, par. 1, Rule 112, supra.).
!1.“Probable Cause ” Defined.
!a.“Probable cause” has been defined as a reasonable ground of
presumption that a matter is or may be well-founded; such a
state of facts in the mind of the prosecutor as would lead a
person of ordinary caution and prudence to believe, or
entertain an honest or strong suspicion, that a thing is so.
!
!58
 the term does not mean “actual and positive cause” nor does it
import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does
not required an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is
believed that an act or omission complained or constitutes
the offense charged. Precisely, there is a trial for the
reception of evidence of the prosecution in support of the
charge (Paredes, Jr., v. Sandiganbayan, G.R. No. 108251,
January 31, 1996).
!b.A finding of probable cause needs only to rest on evidence
showing that more likely than not a crime has been
committed and was committed by the suspects. Probable
cause need not be based on clear and convincing evidence
of guilt, neither on evidence establishing guilt beyond
reasonable doubt and definitely, not on evidence
establishing absolute certainty of guilt. As well put in
Brineger vs. U.S., while probable cause demands more than
“bare suspicion” it requires “less than evidence which would
justify” conviction. A finding of probable cause merely binds
over the suspect to stand trial. It is not a pronouncement of
guilt. (Webb v. De Leon, 247 SCRA 652 [1995]).
!c. A probable cause has been defined as the existence of such
facts and circumstances as would excite the belief, in a
reasonable mind, acting on the acts within the knowledge of
the prosecution, that the person charged was guilty of the
crime for which he was prosecuted (Cruz, Jr. v. People, 233
SCRA 439 [1994]).
!2.No Fixed Formula for Determining Probable Cause.
! There is no general formula or fixed rule for the determination
of probable cause, since the same must be decided in light
of conditions obtaining in given situations and its existence
depends to a large degree upon the finding or opinion of the
investigating prosecutor conducting the investigation.
However, such a finding should not disregard the facts
before the investigating prosecutor nor run counter to the
clear dictates of reason (Fernando v. Sandiganbayan, G.R.
No. 96182, Aug. 19, 1992).
!3.Sound Discretion of the Prosecutor.
!
!59
 The institution of a criminal action depends upon the sound
discretion of the prosecutor. He may or may not file the
complaint or information, follow or not follow that presented
by the offended party, according to whether the evidence, in
his opinion, is sufficient or not to establish the guilt of the
accused beyond reasonable doubt.
!!
The approach of the courts to the quashing of criminal
charges necessarily differs from the way a prosecutor would
handle exactly the same question – a court faced with a fifty-
fifty proposition of guilt or innocence always decides in favor
of innocence, while a prosecutor, conscious that he
represents the offended party, may decide to leave the
problem to the discretion of the court (Venus vs. Desierto,
198 SCRA 196 [1998]).
!F.PURPOSE OF THE CONDUCT OF A PRILIMINARY
INVESTIGATION
!A preliminary
!1.to secure theinvestigation instead:

innocent against hasty, malicious and oppressive

prosecution and tp protect him from an open and public
accusation of a crime and from the trouble, expense and
anxiety of a public trial; (People v. Poculan, 167 SCRA 176
[1988]); Rodis v. Sandiganbayan,166 SCRA 618 [1998];
Salonga v. Pano,134 SCRA 438 [1985]; Trocio v. Manta 118
SCRA 241 [1982]; Sausi v. Querubin, 62 SCRA 155 [1975];
and
!2. to protect the State from having to conduct useless and
expensive trials (Tandoc v. Resultan, 175 SCRA 37 [1989]).
!G.OFFICERS AUTHORIZED TO CONDUCT PRELIMINARY
INVESTIGATIONS
!The following may conduct preliminary investigations (Sec. 2,
par. 1, Rule 112, supra):
!1.Provincial or City Prosecutors and their assistants;
!The prosecutor’s authority to conduct preliminary investigation
shall include all crimes cognizable by the proper court in

!60
 their respective territorial jurisdiction, including those
committed by government officials in relation to their office.
!2.National and Regional State Prosecutors and their assistans;
!3.Other Officers as may be authorized by law:
!a.The COMELEC is mandated under the 1987 Constitution, not
only to investigate but also to prosecute cases of violation of
election offenses (People v. Inting, 187 SCRA 788).
!If the prosecutor files an information charging an election offense
or prosecutes a violation of the election law, it is because he
has been deputized by the COMELEC. He does not do so
under the sole authorized of his office (People v. Basilla, 179
SCRA 87).
!b.The Ombudsman is clothed with authority to conduct preliminary
investigations and to prosecutes all criminal cases involving
public officers and employees, not only those within the
jurisdiction of the Sandiganbayan, (Sec. 15 (1) and Sec. 11
(4) of R.A. No. 6770 [An Act Providing for the Functional and
Structural Organization of the Office of the Ombudsman, and
for Other Purposes]) but also those within the jurisdiction of
the regular courts (Uy v. Sandiganbayan, 354 SCRA 651,
657-659 [2001]; Reiterated in Decin v. Tayco, GR No. 14996,
February 04, 2007 and Chavez v. G.R. No. 125813,
February 06, 2007).
!
The power to investigate and prosecute cases granted by law to
the Ombudsman pertains to any act or omission of any
public officer or employee when such act or omission
appears to be illegal, unjust, improper or inefficient.
!NOTE: A prosecutor has a shared authority to investigate and
prosecute Ombudsman cases not cognizable by the
Sandiganbayan. With respect to cases cognizable by the
Sandiganbayan, the Ombudsman has primarily authority to
investigate and exclusive authority to file and prosecute
Sandiganbayan cases (Uy v. Sandiganbayan, supra.).
!Under DOJ Circular No. 26 dated July 3, 2008, a prosecutor has
legal authority to take cognizance of, and conduct
preliminary investigation/inquest proceedings on complaints
filed before him/her involving violations of penal laws,
!61
 regardless of whether or not the respondents, therein are
public officials and/or employees; PROVIDED That, for
cases cognizable by the Sandiganbayan in the exercise of
its original jurisdiction under Sec. 4(a), (b), and (c) of RA
7975, as amended, the Ombudsman may take over at any
stage of the investigation, in line with its primary jurisdiction
under the last sentence of Sec. 15(1) of RA 6770,
conformarbly with the ruling in Hosana II vs. The panel of
Investigating Prosecutors of the DOJ (GR No. 159747, April
13, 2004, 427 SCRA 46).
!In other words, resolutions in cases involving government
officials falling within the jurisdiction of the Regional Trial
Courts (RTCs), Municipal Trial Courts (MTCs) or
Metropolitant Trial Courts (MeTCs) need not be forwarded to
the Office of the Ombudsman for review or approval.
!However, resolutions cases falling within the jurisdiction of the
Sandiganbayan shall be forwarded by the Chief State/
Provincial/City Prosecutor to the Office of the Ombudsman
for review pursuant to its primary jurisdiction.
!c.The Presidential Commission on Good Government with the
assistance of the Office of the Solicitor General and other
government agencies was empowered under Executive
Order No. 14, series of 1986, to file and prosecute before the
Sandiganbayan, all cases investigated by it under Executive
Order No. 1, dated February 28, 1986 and Executive Order
No. 2 Dated March 12, 1986, as may be warranted by its
findings. The cases referred to under E.O. No.1 and E.O.
No. 2 were the ill-gotten cases of former President
Ferdinand Marcos.
!NOTE: The authority to investigate includes the authority to
conduct a preliminary investigation (Zaldivar v.
Sandiganbayan, 160 SCRA 843 [1988]; Conjuangco v.
PCGG, 190 SCRA 226 [1990]; Virata v. Sandiganbayan, 202
SCRA 680 [1991]).
!NOTE: For other violations of the Anti-Graft and Corrupt Practices
Act not otherwise falling under E.O. No. 1 and E.O. No. 2 as
aforementioned, the jurisdiction is vested in the Ombudsman
and other duly authorized agencies such as the National
Prosecution Service of the Department of jusdice, unless
authorized by the President in accordance with Sec. 2(b) of
!62
 E.O. No. 1 (Republic of the Philippines v. Mirgrinio, 187
SCRA 289 [1990]).
!II.PROCEDURE
!A.COMMENCEMENT OF THE PRELIMINARY INVESTIGATION
!A preliminary investigation proceeding is commenced:
!1.by the filing of a complaint by the offended party or any
competent person (Ebarle v. Sucaldito, 156 SCRA 803
[1987]) directly with the office of the investigating prosecutor;
!NOTE: the sworn complaint shall be accompanied by an
accomplished Preliminary Investigation Data Form (please
refer to NPS Investigation Form No. 01, s. 2008 on p. 108 of
this Manual) and other supporting documents.
!2.By referral from or upon request of the law enforcement agency
!NOTE:thatWhen
investigated a criminal incident;

the referral came from or is upon the request of a

law enforcement agency that investigated the complaint, the
latter shall submit the original or duplicate original or certified
machine copies of the affidavits/s of the complaints/s and
his/their witness/es.
!3.upon request of a person arrested or detained pursuant to an
arrest without warrant who executes a waiver in accordance
with the provisions of Article 125 of the Revised Penal Code,
as amended;
!4.by an Order or upon the directive of the court or other competent
!5.uponauthority; or

the initiative of the Commission on Elections, or upon a

written complaint by any citizen, a candidate, a registered
political party, a coalition of registered parties or an
organization under the party-list system or any accredited
citizen arm of the Commission on Elections in cases of
election offense;(Secs. 3 and 5, Rule 34 of the COMELEC
Rules of Procedure).
!a.Contents of the Complaint
!
!63
 The complaint filed by the complainant with the prosecutor’s
office shall state, among others:
!1.the full and complete names and exact home, office or postal
addresses of the complaint/s and his/their witness/es;
2.the full and complete name and exact home, office or postal
address of the respondent/s;
!
3.the offense/s charged and the place and exact date and time of
its/their commission; and,
!4.whether or not there exists a related case and, if so, the docket
number of said case and the name of the investigating
prosecutor thereof.
!b.Number of Copies of Affidavits; Other Requirements
!
The complaint and supporting affidavits shall be in such
number of copies as there are respondents, plus five (5)
copies for the court/office file.
!Where a complaint charges multiple offenses which cannot be
the subject of one incident or information, the complainant
may be required to submit such additional copies of the
complaint and supporting affidavits as there are offenses
charged in the complaint.
!If the offense charged is punishable by imprisonment not
exceeding one (1) year or a fine not exceeding Five
Thousand pesos (Php5,000.00) and the parties to the case
are all residents of the same city or municipality, the
complaint shall be accompanied by the certification
requiredunder Sec. 412 (a) of RA 7160, “The Local
Government Code of 1991.” Otherwise, the prosecutor shall
not take cogn izance of the case.
!The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer
oath, or, in their absence or unavailability, before a notary
public, each of whom must certify that he personally
examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits (Sec. 3,
par. (a), Rule 112, supra.).
!
!64
B.INITIAL ACTION BY THE INVESTIGATING PROSECUTOR
ON THE COMPLAINT FILED

Within ten (10) days from receipt of the complaint by the

prosecutor, he/she shall:
!1.Inhibit himself from conducting a preliminary investigation in a
!a.He orcasehiswherein –

wife or child is interested as heir, legatee, creditor or

otherwise; or
! th
b.He is related to their party within the 6 degree of consanguinity
th
or affinity or to counsel within the 4 degree; or
!
c.He has been named executor, administrator, guardian, trustee or
counsel.
!
NOTE: In this particular instance, the conduct of the preliminary
investigation shall be re-assigned to another investigating
prosecutor.
!2.Dismiss the same if he finds no ground to continue with the
inquiry (please refer to NPS INV Form No. 02, s. 2008 on p.
110 0f this Manual.):
!a.That the offense charged in the complaint was committed
outside the territorial jurisdiction of the office of the
investigating prosecutor;
!
b.That at the time of the filing of the complaint, the offense/s
charged therein had already prescribed;
!c.That the complaint is not authorized under the provisions of
!d.Thatpertinent laws to file the complaint; and

the complainant failed to submit a barangay certification for

offenses covered by the Katarungang Pambarangay Law.
!e.That no clearance from the Department of Labor and
Employment or from any regional office thereof is attached to
the complaint where the complainant is an employer and the
respondent is his/her employee. (Ministry Circulars Nos. 8
and 15 dated 1982 and 1985 respectively)
!
!65
3.Where the respondent is a child and he is above fifteen (15)
years of age but below eighteen (18), the prosecutor shall
determine whether or not the child acted with discernment.
!If he/she acted with discernment, the prosecutor shall:
!a.Refer the case to the concerned Lupong Tagapamayapa for the
diversion proceedings, if the case falls within the jurisdiction
of the Lupon; or
!
b.Conduct the requisite diversion proceedings if the penalty for the
offense charged is beyond the jurisdiction of the Lupon but
does not exceed six (6) years of imprisonment; or
!c.Proceed with the preliminary investigation if the penalty for the
offense charged is imprisonment of more than six (6) years,
applying the rules and procedure on the conduct of the
preliminary investigation as herein provided.
!4.Issue a subpoena to the respondent, attaching thereto a copy of
the complaint together with the affidavits of witneses and
other supporting documents (Sec. 3 [b], Rule 112, supra.).
(please refer to NPS INV Forms Nos. 03, 04, and 05, s. 2008
on pp. 112, 113 and 114 of this Manual)
!C.SERVICE OF THE SUBPOENA TOGETHER WITH THE
COMPLAINT AND SUPPORTING AFFIDAVITS AND
OTHER DOCUMENTS TO THE RESPONDENT/S
!1.To Prevent Loss of Documents:
!Whenever circumstances warrant and to prevent the loss of
documents in the course of the service of a subpoena
through ordinary modes, the investigating prosecutor may
require the respondent or other parties to appear before him
on a designated date, time and place and then and there
personally furnish them with copies of the complaint,
supporting affidavits and other documents.
!At the said or any other setting, the respondent shall have the
right to examine all other evidence submitted by the
complainant and to obtain copies thereof at his expense. If
such records are voluminous, the complainant may be
required to specify and identify those which he intends to
present against the respondent to support the charge
!66
 against the latter and these shall be made available for
examination, copying or photographing by respondent at his
expense (Sec. 3 (b), par. 2., Rule 112, supra.; Commissioner
of Internal Revenue v. Court of Appeals, 257 SCRA 200).
!Failure on the part of the respondent or his counsel/
representative to appear before the investigating prosecutor
to obtain copies of the complaint, supporting affidavits and
other documents despite receipt of notice or subpoena shall
be considered a waiver of respondent’s right to be furnished
copies of the complaint, supporting affidavits and other
documents, as well as to examine all other pieces of
evidence submitted by the complaint.
!2.Service to a Respondent Residing in a Distant Place
The investigating prosecutor shall issue and send the subpoena,
together with copies of the complaint, supporting affidavit/s
and other documents, by registered/special delivery mail
with return card to a respondent who resides in a distant
place.
!3.Where Respondent Cannot be Subpoenaed Does Not
Submit Counter-Affidavit
!If a respondent cannot be subpoenaed, as, for instance, he
transferred residence without leaving any forwarding
address, or if subpoenaed, does not submit his/her counter
affidavit, the investigating prosecutor shall resolve the
complaint based on the evidence presented by the
complainant (Sec. 3, par. (d), Rule 112, supra.).
!4.Objects as Evidence
!Object as evidence need not be furnished either party but shall
be made accessible for examination, copying or
photographing at the expense of the requesting party (Sec.
3, par. (b), Rule 112, supra.).
!5.Guidelines to be Observed on the Service of Subpoenas
!To expedite the conduct of a preliminary investigation, the
following guidelines shall be observed in the service of
subpoenas:

!67
a.Service of subpoena and all papers/ documents required to be
attached thereto, shall e by personal service to be performed
by the regular process servers. In their absence, the
cooperation of the Provincial/City/Municipal Station
Commanders of the Philippine National Police (PNP) may be
requested for the purpose.
!b.Under other circumstances, where personal service cannot be
effected but the respondent cannot be considered as
incapable of being subpoenaed, as when he continues to
reside at his known address but the return states that he
“has left his residence and his return is uncertain” or words
of similar import, service of subpoena and its attachment
shall be effected by registered mail with return card at
respondent’s known home/office address. On the face of the
enveloped shall be indicated:
!1.The name and return address of the sender, and the typewritten/
printed phrase “First Notice Made on______”, thus
instructing the postmaster/postal employee of the necessity
of informing the sender of the date that the first notice was
made on the addressee; and
!
2. The type written/printed request: “If not claimed within five (5)
days from the first notice, please return to sender.”
!c.Within ten (10) days from receipt of the unclaimed/return
envelope, the investigating prosecutor may proceed to
resolve the complaint on the basis of the evidence presented
by the complainant (Sec. 3(d), Rule 112, supra; DOJ
Memorandum Circular No. 25 dated 02 October 1989).
!d.If the enveloped remained unclaimed or is not returned within 20
days from mailing, the investigating prosecutor may proceed
to resolve the complaint on the basis of the evidence
presented by the complaint.
!D.SUBMISSION OF THE COUNTER-AFFIDAVIT/S BY THE
!WithinRESPONDENT/S
ten (10) days from receipt of the subpoena together with
the complaint and supporting affidavit/s and document/s, the
respondent shall submit his counter-affidavit and that of his
witness/es and other supporting documents which shall be
subscribed and sworn to and certified based on the NPS
!68
 Sample Format “A” s. 2008 0n p. 131 of this Manual. Copies
of the counter-affidavit/s by the respondents.
!1.Extension of Time within which to Submit Respondent’s
Counter Affidavit
!No motion or request for extension of time to submit counter-
affidavits shall be allowed or granted by the investigating
prosecutor except when the interest of justice demands that
the respondent be given a reasonable time or sufficient
opportunity to:
!a.Engage the services of counsel in order to assist him during the
preliminary investigation proceedings;
!
b.Examine or verify the existence, authenticity or accuracy of
voluminous records, files, accounts or other papers or
documents presented or submitted in support of the
complaint; or
!c.Under take studies or research on novel, complicated or
technical questions or issues of law and of facts attendant to
the case under investigation.
!Extensions of time to submit a counter-affidavit for any of the
reasons stated above shall not exceed ten (10) days.
Additional extensions may be authorized by the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor concerned.
!2.Filing of a Motion to Dismiss, Memorandum or Motion in
Lieu of a Counter-Affidavit
!a.General Rule
! A memorandum, manifestation or motion to dismiss signed by
counsel of the respondent and filed before the prosecution
office is a prohibitive pleading (Commissioner of Internal
Revenue v. Court of Appeals, supra) and cannot take the
place of a counter-affidavit. It should be ignored. Only a
counter-affidavit subscribed and sworn to by the respondent
before the public prosecutor can dispute or put at issue the
allegations in the complaint.
!
!69
 Thus, a respondent relying on the manifestation, memorandum
or motion to dismiss filed by his counsel is deemed to have
not converted complaint’s evidence. (DOJ Resolution No.
109, Series of 1990, I.S. No. 89-243 re the case of “Bulacan
Garden Corporations v. Filomena“, OPP, Bulacan.)

However, if such memorandum, manifestation or motion to

dismiss is verified by the respondent himself, the same may
be considered as his counter affidavit.
!All the grounds for the dismissal of the complaint, as well as
objections to the sufficiency thereof, shall be alleged or
incorporated in the counter-affidavit and shall be resolved by
the investigating prosecutor jointly on the merits of the case.
!b.Exceptions
!The investigating prosecutor mat, however, grant a motion to
dismiss filed by a respondent who is yet to file or has not
filed his counter-affidavit if the said motion is verified and
satisfactorily establishes, among others.
!1.The circumstances specified in II B (2) of this Part;
!2.The fact that the complaint, or one similar thereto or identical
therewith, has previously been filed with the Office and has
been fully adjudicated upon on the merits after due
preliminary investigation proceedings; or
!3.The extinction of respondent’s criminal liability by reason of
death, pardon, amnesty, repeal of the law under which
prosecution is sought, or any other legal causes.
!3.Effect of the Filing of a Motion to Dismiss or a Motion for a
Bill of Particulars and Other Similar Pleadings
!The filing of a motion for the dismissal of the complaint r for the
submission of a bill of particulars shall suspend or interrupt
the running of the period for the submission of the counter-
affidavit/s and other supporting documents.
!4.Action on Motions to Dismiss on the basis of an Affidavit of
! Desistance
!70
An affidavit of desistance is viewed with suspicion and reservation
and regarded as exceedingly unreliable. It is merely an
additional ground to buttress the defense of the respondent.
The investigating prosecutor must be able to discern other
circumstances which, when coupled with the desistance,
creates doubt as to respondent’s criminal liability. If there is
none, then the complaint may be dismissed for lack or
sufficient evidence and not on the basis of an affidavit of
desistance.
!5.Suspension of Proceedings Due to the Existence of a
Prejudicial Question
! Upon motion of a party or when raised in a counter-affidavit,
the investigating prosecutor shall suspend preliminary
investigation proceedings if the existence of a prejudicial
question is satisfactorily established.
!a.Concept of a Prejudicial Question
!A prejudicial is one, the resolution of which is a logical
antecedent of the issue involved in a case and the
cognizance of which pertains to another tribunal (Ras v.
Rasul, 100 SCRA 125 [1980];Quiambao v. Osorio, G.R. No.
48157 , March 16, 1988.).
!It is based on a fact distinct and separate from the crime charged
but so intimately connected with it that it determines the guilt
or innocence of the accused. To suspend the criminal action,
it must not only appear that said case involves facts
intimately related to those upon which the criminal
prosecution would be based but also that in the resolution of
the issue or issues raised in the civil case, the guilt or
innocence of the accused would necessarily be determined.
(Donato v. Luna, G.R. No. 53642, April 15, 1988; Prado v.
People,133 SCRA 303 [1982])
!b.Elements of a Prejudicial Question.
! The essential elements of a prejudicial question are:
!1.The civil action involves an issue similar or ultimately related to
! the issue raised in the criminal action;
!71
2.The resolution of such issue determines whether or not the
criminal action may proceed; (Sec. 5, Rule 111, supra) and
!3.The cognizance of the said issue pertains to another tribunal
(Cf. Ras v. Rasul, supra; Quiambao v. Osorio, supra).
!c.Issuance of an Order Suspending the Proceedings Due to
the Existence of a Prejudicial Question; Written
Approval of the Head of Office Required
!All orders suspending the preliminary investigation based on the
existence of a prejudicial question issued by the
investigating prosecutor shall have the written approval of
the Chief State Prosecutor/ Regional State Prosecutor/
Provincial/ City Prosecutor concerned or his duly designated
assistant. (Please refer to NPS INV Form No.06, 2008 s. on
p. 115 of this Manual)
!Upon approval and issuance of the order, the complaint is
considered archived.
!E.WHEN TO SET CASE FOR CLARRIFICATORY
QUESTIONING
!The investigating prosecutor may set a hearing for clarificatory
questions within ten (10) days from the submission of the
counter-affidavit/s and ____ documents or from the
expiration of the period of their submission, to proper
clarificatory questions to the parties or their witnesses if he
believes that there matters which need to be inquired into
personally by him. (please refer to INV Form No. 07, s. 2008
on p. 116 of this Manual)
!1.No Right to Examine or Cross-Examine
!In said hearing, the parties shall be afforded the opportunity to
be p___ but without the right to examine or cross-examine. If
they so desire, they submit written questions to the
Investigating Prosecutor who may pro___ such questions to
the parties or witnesses concerned (Sec. 3(e), Rule____
supra).
!2.Record/Notes During the Clarificatory Hearing
!
!72
 The investigating prosecutor may record the facts and issues
clarification or the questions asked and answer/s given
during the clarificatory questioning which shall be signed by
the parties concerned and/or their res__ counsels. Said
notes shall form part of the official record of the case.
!Parties who desire to file an appeal or petition for review of the
investigating prosecutor’s resolution may, at their option, cite
specific portion for oral testimony of any of the parties/
witnesses by referring to the note __ by the investigating
prosecutor.
!3.No Right to Counsel
!It has been held that there is nothing in the rules which render a
preliminary investigation invalid without the assistance of
counsel. (People v. ___ 275 SCRA 696)
!NOTE: A confession obtained however, during the preliminary
investigation without the assistance of counsel is
inadmissible (People v. __ 145 SCRA 555; People v. Ayson,
175 SCRA 216; People v. Esco___ R. Nos., 138934-35,
January 06,2002).
!The clarificatory questioning shall be terminated within five (5)
days inception.
!F.REPLY-AFFIDAVITS, REJOINDERS AND MEMORANDA;
WHEN TO ALLOW THE FILLING THEREOF
!The investigating prosecutor shall not require or allow the filling
!1.whereor submission of reply-affidavits and/or rejoinders except:

new issues of fact or questions of law which are material

and substantial in nature are raised or invoked in the
counter-affidavit or subsequent pleadings; and,
!2.when there exist a need for said issues or questions to be
controverted or rebutted, clarified or explained to enable the
investigating prosecutor to arrive at a fair and judicious
resolution of the case.
!In such a case, the period for the submission of reply affidavits or
rejoinders shall in no case exceed five (5) days unless a
longer period is authorized by the Chief State Prosecutor/
!73
 Regional State Prosecutor/Provincial or City Prosecutor
concerned.
!Neither shall the investigating prosecutor require nor allow the
filing or submission by the parties of memoranda unless the
case involves difficult or complicated questions of law or fact.
in any event, the filing of memoranda by the parties shall be
done simultaneously and the period thereof shall not exceed
ten (10) days, unless a longer period is authorized by the
Chief State Prosecutor/ Regional State Prosecutor/Provincial
or City Prosecutor concerned (please refer to NPS Sample
Format “A”, s. 2008 on p. 131 of this Manual).
!G.WHEN COMPLAINTS MAY BE CONSOLIDATED
!The following complaints shall, as far as practicable, be
consolidated for preliminary investigation purposes, (please
refer to NPS INV Form No. 08, s. 2008 on p. 117 of this
Manual) and shall be assigned to the prosecutor handling
the complaint with the lowest docket number or to another
prosecutor at the discretion of the head of office and the
consolidated complaints shall be jointly heard by said
investigating prosecutor:
!1.when there are charges and counter-charges;
!2.when the complaints arose from one and the same incident or
!3.casestransaction or series of incidents or transaction; and

involving common parties and founded on factual and/or

legal issues of the same or similar character.
!H.ACTIONS ON MOTION TO DISQUALIFY/INHIBIT
!1.if a motion to disqualify/inhibit the investigating prosecutor is
filed by of the parties at any stage of the preliminary
investigation, the same shall be forwarded to the head of
office who may designate another investigating prosecutor to
handle the said preliminary investigation.
!2.The secretary of Justice, the Chief State Prosecutor or the
Regional State Prosecutor shall designate a prosecutor from
another province or city within the region or a state
prosecutor in the Regional State Prosecution Office and
Acting City or Provincial Prosecutor, to investigate and
!74
 prosecute a case for instances where parties question the
partiality or bias of prosecutors particular provincial or city
prosecution office (par. 11, DOJ Order No. ___ dated 28
August 1991 [founded in Appendix “C” on p. 304 of this
Manual, as amended by DOJ Order No. 54 dated 20
February 1992 [Appendix “D” p. 308”]). (please refer to NPS
INV Form No. 09, s. 2008 on p. 118 of this Manual).
!I.SUBMISSION OF THE CASE FOR RESOLUTION
!the investigating prosecutor shall consider the case submitted for
!1.whenresolution:
the respondent cannot be subpoenaed or, if subpoenaed,
does not submit his counter-affidavit within the reglementary
period. In such a case the investigating prosecutor shall
base his resolution on the evidence presented by the
complainant (Sec. 3 (d), Rule 112, supra); or
!
2.upon submission by the parties of their respective affidavits and
support proof or documents, in which event, he shall, upon
the evidence thus add to determine whether or not there is
sufficient ground to hold the respondent in trial (Sec. 3 (f),
Rule 112,supra).
!J.PREPARATION OF THE RESOLUTION
!1.When There is Lack of Probable Cause
!If the investigating prosecutor does not find sufficient basis, for
the prosecution of the respondent, he shall prepare the
resolution recommending for dismissal of the complaint.
!2.When There is a Finding of Probable Cause
If the investigating prosecutor finds that probable cause exists,
he shall prepare the resolution and the corresponding
Information or Complaint the appropriate cases.
!Where the respondent is a public officer or employee or a
member of the Philippine national police (PNP), the
investigating prosecutor shall also determine whether or not
offense with which he is charged was committed in relation
to his offices and, if so committed, such fact should be
alleged in the information to be filed with the Sandiganbayan

!75
 through the office of the ombudsman.(Republic v. Maximiano
Asuncion, G. R. No. L-108208, March 1994)
!3.Forms of the Resolution and Number of copies
!
The resolution shall be written in the official language, personally
and directly by prepared and signed by the investigating
prosecutor (please refer to a sample Resolution on p. 119 of
this manual). it shall be prepared in as many copies as there
are parties, plus five (5) additional copies.
!a.Caption of resolution
!The caption of the resolution shall indicate the:
! 1.names of all the complainant and all of the respondent;
!2.Case number/s, otherwise known as the investigation slip
!3. thenumber/s (I.S. No);

offense/s charged;
!4.the date
!5.the date ofof the filing of the complaint with the office;

the assignment of the case to or receipt of the case

record by the investigating prosecutor; and
!6.the date that the case was submitted for resolution.
!b.Names of parties
The complete names of all the complainants and respondents in
the case shall be set out in the caption of the resolution. It is
not proper to use the phrase ”et. al.” to refer to other
complainants and respondents.
!The name/s of the victim/s or injured party/ies, not their
representative/s, shall appear in the caption. In cases
referred to the prosecution by the law enforcement agency
where there is no identified victim, as in prohibited drugs
cases, the complainant shall be the police station involved,
followed by the name and designation of the police officer
representing the police station. In the case of a corporation
or judicial entity, its corporate name or identity shall be

!76
 indicates and written as follows, ’X’ corporation, represented
by its(position title),(name of corporate officer)”.
!c.Case Number
!The number of a case shall be based on the following system of
sequential codes:
!• Sequential Codes:

o roman numeral – NPS region and OCSP number

!
o two(2)-digit number – city/provincial office
! o small letter – provincial substation
! o PI or INQ – “PI” for regular preliminary investigation or
! o twosummary investigation case ; “INQ” for –inquest case

! o capital(2) letter
– digit number – last two (2) digits of the year

– moth (“A” to “L” for January to December ,

respectively)
! o five (5)digit number – series number for an entire calendar
year
!• Illustrative examples:
! o I-01-INV-08A-00001
! - Region I
▪ I
▪ 01 - ORSP
▪ INV - regular PI or summary investigation case
▪ 08 - year 2008
▪ A - month of January
▪ 00001 - first regular PI/summary investigation case for year
2008
!o I-05a-INQ-08A0-00010
!
▪ I - Region I
▪ 05 - OPP La Union
▪a - Agoo Sub-Station
▪ INQ - inquest case
!77
 ▪ 08 - year 2008
▪A - month of January
▪ 00010 - 10th inquest case for year 2008
!o XV-01-INV-08L-01000
▪ XV - National Capital Region
▪ 01 - OCP Antipolo
▪ INV - regular PI summary of investigation case
▪ 08 - year 2008
▪ L - month of December
▪ 01000 - 1,000th PI/summary investigation case for year 2008
!o XVI-INV-08L-03000
!
▪ XVI - 0CSP
▪ INV - regular PI or summary investigation
▪ 08 - year 2008
▪ L - month of Decenber
▪ 03000 - 3000th PI/summary investigation case for year 2008
!d.Designation of the Offense/s Charged
!For the offenses that are punishable under the Revised Penal
Code, the caption shall set forth the denomination of the
offense and the specific article and paragraph of the statue
violated.
!Where there is another charge or countercharged in the same
case having one case number or in case of a consolidated
resolution involving two or more criminal cases with two or
more docket numbers, the caption shall also contain said
information.
!e.Contents of the Body of the Resolution
! In general, the body of resolution should contain:
!1.a brief summary of the facts of the case;
!
2.a concise statement of the issue involved;
! 3.applicable laws and jurisprudence; and
4.the findings, including an enumeration of all the documentary
evidence submitted by the parties and recommendations of
the investigating prosecutor.
!78
 !All material details that should be found in the information
prepared by the investigating Prosecutor shall be stated in
the resolution.
!f.Parts of a Resolution
! As a rule, the body of a resolution is made up of four parts,
!1.Partnamely:
1 shall state the nature of the case as disclosed in the
evidence presented by the complaint such as his affidavit-
complaint, the affidavit of witnesses and documentary and
physical evidence. The affidavit shall be numbered in the
order of the presentation of the prosecution witnesses as
disclosed in the list of witnesses appearing in the
information. As for the documentary evidence, they shall be
alphabetically marked as they would be marked during the
pre-trial and trial stages of the case.
!2.Part 2 shall contain the version of complainant of the incident.
The presentation of the complainant’s case should be
concise and shall not be cluttered with details that are not
necessary to show the elements of the offense.
!3.Part 3 shall allege the respondent’s version of the incident.
!4.PartThis4 shall
must also be concise.

contain the discussion, analysis and evaluation by

the prosecutor of the evidence presented by the complainant
and the respondent, without relying on the weakness of the
defense of the respondent. It shall also contain the
conclusion of the prosecutor. The complainant’s and
respondent’s versions of the incident need to be repeated in
this part except to point out the excerpts relating to the
existence or absence of the elements of the crime. Citations
of pertinent laws and jurisprudence should support the
conclusion reached. Where numerical values are important,
the number shall be written in words and figures.
!g.Parties Who Need to be Furnished with a Copy of the
!The Resolution
complete names and addresses of the complainant and the
respondent shall be set out at the end of the resolution after
!79
 the signature of the investigating prosecutor and the head of
the Prosecutor’s Office concerned under the phrase: “Copy
furnished:”.
!If the parties are represented by counsel and the latter’s
appearance is entered formally in the record, the counsel,
not the party, shall be given a copy of the resolution.(Sec. 4,
par. 1 Rule 112, supra)
!h.Signatures and initials of Investigating Prosecutor
! The investigating prosecutor shall sign the resolution and if the
resolution consist of two or more pages, the prosecutor shall
initial all of said pages, excluding the signature page.
!4.Period to Conduct the Preliminary Investigation
!The preliminary investigation of complaints shall be terminated
and resolved within a period of (60) days from the date of
assignment to the investigating prosecutor, with a maximum
of two (2) 15-day extensions in the following case:
!a.capital offense
!
b.complex issues
!c.with counter-charges
!d.consolidation of related complaints
!e.reassignment
!f.other urgent/valid reasons
!NOTE: Pursuant to Sec. 90 of RA 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2004, the
preliminary investigation of illegal drugs cases shall be
terminated within thirty (30) days from the date of filing.
!5.Written Approval Required in the Dismissal of a Complaint
or the Filing of an Information in Court
!No complaint/Information may be filed or dismissed by an
investigating prosecutor without the prior written authority or
approval of the Provincial, City or Chief State Prosecutor or
!80
 the Ombudsman or his Deputy (Sec. 4, par. 3, Rule 112,
supra.).
!K.TRANSMITTAL OF THE RECOMMENDATORY RESOLUTION
AND INFORMATION TOGETHER WITH THE COMPLETE
RECORD OF THE CASE
!The investigating prosecutor shall forward his recommendatory
(please refer to a Sample Resolution on p. 119 of this
Manual) and Information, together with the complete records
of the case, to the Chief State/Regional State/Provincial/City
Prosecutor concerned within five (5) days from the date of
his resolution. (Sec. 4, par. 2, Rule 112, supra.)
!1.Preparation of the Information and its Contents
!The Information shall be personally and directly prepared by the
investigating prosecutor or such other prosecutor designated
for the purpose and signed by him. It shall state and contain,
in addition to the requirements of the Rules of Court on the
sufficiency of the allegations in an information, the following:
!• the full name and aliases, if any, and address of the accused;
!
• the age and date of birth of the complainant or the accused, if
eighteen (18) years of age or below;
!• the full names and address of the parents, custodian or guardian
of the minor complainant or accused, as the case may be;
!• the place where the accused is actually detained;
!• the full names and address of the complainant and witnesses;
!• a detailed description of the recovered items, if any;
!• the full name and address of the evidence custodian;
!• specify aggravating and qualifying circumstances, if any (please
refer to Department Circular No. 50, s. 2000 found in
Appendix “E” on p. 309 of this Manual); and
!• the bail recommended, if the charge is bailable.
!
!81
 The investigating prosecutor shall certify under oath that he or
she, as shown by the record, as an authorized officer, had
personally examined the complainant and his witnesses; that
there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof;
that the accused was informed of the complaint and of the
evidence submitted against him and that he was given an
opportunity to submit controverting evidence; and that he is
filling the Information with the prior authority and approval of
the Chief State/Provincial/City Prosecutor concerned (Sec.
4, par. 1, Rule 112, supra.). (please refer to Sample
Information Format on pp. 123-129 of this Manual)
!a.Lack of a Certification
!If the preliminary investigation was actually conducted by the
prosecutor, the absence of a certification (please refer to
NPS Sample Format “B”, s. 2008 on p. 133 of this Manual)
does not vitiate the information, as a preliminary
investigation is not an essential part of the information.
!b.Designation of Offense Not Binding Upon the Court
!The designation of the offense is not binding upon the Court
(Cinco v. Sandiganbayan, 96 SCRA 86).
!2.Recommended Bail; How Written
!The bail recommended in the resolution shall be stated in the
information, written in words and figures, ad initialed by the
investigating prosecutor.
!3.Documents to be Attached to the Information
!An Information that is filed in court shall, as far as practicable, be
accompanied by a copy of the resolution of the investigating
prosecutor, the complainant’s affidavit, the sworn statements
of the prosecution’s witnesses, the respondent’s counter
affidavit and the sworn statements of his witnesses and such
other evidence as may have been taken into account in
arriving at a determination of the existence of probable
cause (Lim v. Felix, G.R. No. 94054-57; Fernandez v. Felix,
194 SCRA 292 [1991]; Allado v. Diokno, 232 SCRA 192
[1994]).
!
!82
4.Confidentiality of Resolutions
!All resolution prepared by an investigating prosecutor after a
preliminary investigation, whether his recommendation be for
the filing or dismissal of the case, shall be held in strict
confidence and shall not be made known to the parties, their
counsel and/or to any unauthorized person until the same
shall have been finally acted upon by the Chief State/
Regional State/Provincial/City Prosecutor or his duly
authorized assistant and approved for promulgation and
release of the parties.
!Any violation of the foregoing shall subject the investigating
prosecutor or the employee of the office concerned to severe
disciplinary action.
!L.ACTION OF THE CHIEF STATE/REGIONAL STATE/
PROVINCIAL OR CITY PROSECUTOR ON THE
RECOMMENDATORY RESOLUTION
!The Chief State/Regional/ Provincial or City Prosecutor
concerned shall act on all resolutions within a period of thirty
(30) days from receipt thereof, extendible for another thirty
(30) days in cases involving complex issues and/or heavy
workload of the head of office, by either:
!1.approving the resolution and directing the transmittal of a copy
thereof to the parties; or,
!
2.disapproving the resolution and returning the same to the
investigating prosecutor for further appropriate action; or
!3.reversing the recommendation of the investigating prosecutor, in
which case, the Chief State/Regional State/Provincial or City
Prosecutor
!a.may file the corresponding Information in court (except the
Regional State Prosecutor); or
b.direct any other state prosecutor or assistant prosecutor, as the
case may be, to do so.
!In both instances, there is no more need for the head of office
concerned to conduct another preliminary investigation (Sec.
4, par. 3, Rule 112, supra.).
!
!83
M.REOPENING OF THE PRELIMINARY INVESTIGATION
!After a case under preliminary investigation has been submitted
for resolution under the provision of the preceding section
but before the approval and promulgation of said resolution,
the preliminary investigation may, upon motion of a party, be
reopened for the purpose of receiving newly discovered
evidence and/or in case where respondent has not been
notified of the complaint. The reopening should be with the
prior authorization of the Chief State/Regional State/
Provincial or City Prosecutor concerned. The preliminary
investigation shall be reopened subject to the following
conditions:
!1.the motion is verified and a copy thereof furnished the opposing
!2.the party;
motion accompanied with the newly discovered evidence
and/or respondent’s counter-affidavit; and,
!3.the motion sufficiently and satisfactorily shows valid and
justifiable reason for the failure of the movant to submit the
newly discovered evidence or the counter-affidavit during the
preliminary investigation.
!N.PROMULGATION OF THE RESOLUTION; MODES OF
!The SERVICE
resolution shall be promulgated by furnishing the parties or
their counsel a copy thereof by:
!1.personal service by process servers, law enforcement or
barangay personnel; or
!2.registered
!O.FILING OFmailTHEwithINFORMATION
return card to the parties

IN COURT; RULES TO
FOLLOW
!1.An Information filed in court shall be supported by the affidavits
and counter-affidavits of the parties and their witnesses,
together with other supporting evidence and the resolution
on the case (Sec. 7(a), Rule 112, supra.).
!
!84
2.The record of the preliminary investigation conducted by a
prosecutor shall not form part of the record of the case (Sec.
7(b), Rule 112, supra.).
!P.ACTION ON A MOTION FOR RECONSIDERATION
!A motion for reconsideration filed within fifteen (15) days from
receipt of the resolution shall be acted upon within thirty (30)
days from receipt of the motion by the assigned prosecutor.
The motion must be verified and accompanied by proof of
service to the opposing party. It must state clearly and
distinctly the grounds relied upon in support of the motion.
!Where the information has already been filed in court, the Chief
State/Provincial/City Prosecutor mat not give due course to
the motion for reconsideration until there is a showing that
the movant has filed a motion with the court for the
suspension of the proceedings, and the court has granted
such motion to suspend proceedings.
!The Office of the Chief State/Provincial/City Prosecutor shall
resolve the motion for reconsideration within the period fixed
by the court.
!Once the motion for reconsideration has been resolved, a motion
should be filed in court by the Chief State/Provincial/ City
Prosecutor or his/her authorized assistant, attaching thereto
the resolution on the motion for reconsideration, informing
the court of the action taken thereon and asking it either to
proceed with the case, or withdraw the information or cause
such other measures to be done as may be warranted.
!Q.ACTION ON A REINVESTIGATION
!Before the filing of an information in court, a motion for
reinvestigation of the case may be filled with the Chief State/
Regional State/City/Provincial Prosecutor, provided that
when the case has been appealed to the Secretary of
Justice or the Regional State Prosecutor, such motion may
be filed with the said offices.
!After the trial court has acquired jurisdiction over the case, any
motion for reinvestigation shall be addressed to the court
and not to the public prosecutor or Secretary of Justice. It is
the trial judge who has sole authority to grant or deny the
!85
 motion for reinvestigation (Crespo v. Mogul, 151 SCRA 469;
Velasquez v. Tuquero, 182 SCRA 388).
!A reinvestigation is proper only if the accused’s substantial rights
would be impaired (Antiporda, Jr. v. Garchitorena, 321 SCRA
551).
!1.Instances Where a Reinvestigation May be Conducted
!Based on newly discovered evidence, reinvestigation may be
conducted in the following instances:
!a.Pursuant
!Where the tocourta Court Order for Cases Already Filed in Court

orders the reinvestigation of a case, it cannot at

the same time choose the prosecutor who will conduct the
reinvestigation (Abugol v. Tiro, etc., et. Al, L-40552, August
30, 1975). The head of office shall have discretion to assign
the reinvestigation of the case to a specific prosecutor, and
not the judge issuing the court order.
!The reinvestigating prosecutor shall conduct the proceedings
within the period prescribed in the court order. The review
and approval of the resolution after reinvestigation shall also
be done within the period prescribed in the order. After
promulgating of the resolution, the office concerned shall
immediately take appropriate action to either amend or
withdraw the Information or proceed with the trial, as the
case may be.
!b.Pursuant to an Order or Directive from the Regional State
!The Prosecutor or the Secretary of Justice

Regional State Prosecutor or Secretary of Justice may order

the reinvestigation of a case upon motion filed by the
interested party or upon appeal or petition for review of the
resolution of the Chief State/City Provincial Prosecutor.
!The head of office shall assign the reinvestigation of the case to
a prosecutor, who shall assist the movant in filing a motion to
suspend proceedings in court upon receipt of the order/
directive for reinvestigation. Thereafter, he/she shall
immediately conduct and resolvev the case within the period
prescribed in the order.
!
!86
III.RELEVANT JURISPRUDENCE
!1.The prosecutor is not bound by the qualification of the crime but
by the evidence presented during the preliminary
investigation (Orquinaza v. People, G.R. No. 165596,
November 17, 2005).
!2.If, after preliminary investigation, a case is filed in the Court of
First Instance (now the Regional Trial Court), the prosecutor
cannot file another Information charging a different offense
based on the same preliminary investigation. He must
conduct another preliminary investigation (Luciano v.
Mariano, et. al., 40 SCRA 187).
!3.A new preliminary investigation is not, however, necessary after
the amendment of the Information, where there has been no
change in the nature of the crime charged which is rebellion,
and moreover, petitioner, who was already in custody when
the amended Information was filed, should have asked, but
did not, for a re-investigation of said case within the period of
five (5) days from the time he learned of the amendment
Information (Lava v. Gonzales, 11 SCRA 650 [1968]).
!4.A new preliminary investigation is not called for when the court
orders the filing of the correct Information involving a
cognate offense, such as unfair competition to infringement
of trademarks (Sy Lim v. CA,113 SCRA 334).
!5.Where only a formal amendment was involved – such as
frustrated murder to consummated murder where the death
of the victim supervened, a preliminary investigation is
unnecessary and cannot be demanded by the accused
( Teehankee, Jr. v. Madayag, 207 SCRA 134).
!6.It is a fundamental principle that when on its face, the
Information is null and void for lack of authority to file the
same, it cannot be cured nor resurrected by an amendment.
Another preliminary investigation must be undertaken and
thereafter, based on the evidence adduced, a new
Information should be filed (Cruz, Sr., v. Sandiganbayan, 194
SCRA 474).
!7.Substanial adherence to the requirements of the law governing
the conduct of preliminary investigations, including
substantial compliance with the time limitation prescribed by
!87
 the law for the resolution of the case by the prosecutor, is
part of the procedural due process constitutionally
guaranteed by the fundamental law. A delay of close to three
(3) years cannot be deemed reasonable or justifiable in the
light of circumstances obtaining in the case (Tatad V.
Sandiganbayan, 159 SCRA 70).
!8.The principle is not, however , applicable where the delay in the
termination of the preliminary investigation cannot be
imputed solely to the prosecution but because of incidents
which are attributable to the accused and his counsel
(Gonzales v. Sandiganbayan, 199 SCRA 298; Defensor-
Santiago v. Garchitorena, 228 SCRA 214).
!9.In Dee vs. Court of Appeals (November 21, 1994, 56 SCAD 684,
238 SCRA 254), the Supreme Court reiterated its
pronouncement in Crespo vs. Mogul (151 SCRA 462), that
the secretary of Justice, as far as practicable, should refrain
from entraining a petition for review or appeal from the action
of the prosecutor when the Complaint or Information has
been filed in court. The matter should be left entirely for the
determination of the Court.
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!
!88
!!
!
!! !
TEMPLATES & SAMPLE FORMS USED IN THE CONDUCT OF THE PRELIMINARY

!! INVESTIGATION

NPS Investigation Form No. 01, s. 2008

!!
Republic of the Philippines
Department of Justice
!!
National Prosecution Service
__________________________

!!
__________________________

INVESTIGATION DATA FORM

!!
To be accomplished by the Office

!!
DATA RECEIVE:
NPS DOCKET NO._______________________

!!
(stamped and initialed): ________________________
Assigned to:_____________________________
Time Received:_______________________________

!!
Date Assigned:__________________________
Receiving Staff:_______________________________

!!
To be accomplished by complained/counsel/law enforcer
(Use back portion if space is not sufficient)

!!
COMPLAINT/S: Name,Sex,Age&
RESPONDENT/S: Name,Sex,Ages
Address
!! Address
____________________
____________________
_________________________
_________________________
!!
____________________ _________________________

Address !!
LAW/S VIOLATED:
Address
____________________
WITNESS/ES: Name,Sex,Ages

_________________________

!!
____________________
____________________
_________________________
_________________________

!!
DATE& TIME of COMMISSION: PLACE of COMMISSION:
____________________ _________________________

!!!
____________________
____________________
_________________________
_________________________

!!
Has a similar complaint been filed before any other office? *YES___ NO____
1. Is this complaint in the nature of a counter-charge? *YES___NO___
If yes, indicate details below.
!!
2. Is this complaint related to another case before this office? *YES___ NO___
If yes, indicate details below.

!! I.S. No.:________________________________

! Handling Prosecutor:______________________

!89
!!
!! !!
!! !!
!! !
CERTIFICATION*
!!! I CERTIFY, under oath, that all the information on this sheet
!! are true and correct to the best of my knowledge and
belief, that I have not commenced any action or filed any
!! claim involving the same issues in any court, tribunal, or
quasi-judicial agency, and that if I should thereafter learn
!! that a similar action has been filed and/or is pending, I
shall report that fact to this Honorable Office within five (5)
!!! days from knowledge thereof.
!!! __________________________
!!! (Signature over printed name)
!!SUBSCRIBED AND SWORN TO before me this
__________day of ___________, 20 ____, in
!!! _____________________________.
!! ________________________________
!!! Prosecutor Administering Oath

!!!*1,2,3 and Certification need not be accomplished for

!! inquest cases
!!
!!
!!
!!
!!
!90
!!
!
NPS Investigation Form No. 02, s. 2008

Republic of the Philippines

Department of Justice
NATIONAL PROSECUTION SERVICE
________________________________

!
________________________________

__________________________ ,
Complainant,
I.S. No.____________________
For:_______________________

!
- versus –

___________________________,
Respondent.

!
x------------------------------------x

RESOLUTION

This refers to the above-entitled complaint for ___________ filed by __________

! against respondent __________________________.

Section 3(b), Rule 112 of the Revised Rules on Criminal Procedure, provides that the
investigating officer shall either dismiss the complaint if he finds no ground to

! continue with the investigation or issue a subpoena to the respondent.

In this connection, we are constrained to dismiss the complaint for the following

! reason(s);

[The investigating prosecutor may choose any of the reasons for dismissing the

! complaint]

(____) the offense charged in the complaint was committed outside the territorial

! jurisdiction of this Office; (Brief explanation)

(____) at the time of the filing of the complaint, the offense charged therein had already

! prescribed; (Brief explanation)

(____) the complaint is not authorized under the provisions of pertinent laws to file the

!! complaint; (Brief explanation)

WHEREFORE, the undersigned investigating prosecutor respectfully recommends that

!! ________________________________(place), __________________(date),

________________________________

! INVESTIGATING PROSECUTOR

!
APPROVED:

_____________________________________

!
(Head of Office)

Copy Furnished:
All Parties and/or their counsel
Address !91


NPS INV Form No. 03,s. 2008
!Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
________________________________
________________________________
!_________________________,
Complainant/s,
I.S. No.____________________
- versus- For:_______________________
_________________________,
Respondent/s.
x----------------------------------------x
!SUBPOENA TO COMPLAINANT
(optional but not necessary)
!TO: __________________________
__________________________
__________________________
!GREETINGS:
!Under and by virtue of the authority vested in me by law, you
are hereby required to appear before me at
______________________________________________
_, on ___________________________,
200___at____a.m/p.m. in the preliminary investigation of
the above entitled complaint to be held at the time and
place-above-specified.
!WITNESS MY HAND this ____________day of
_____________, 200____at _________________,
Philippines.
!!
________________________________
INVESTIGATING PROSECUTOR

!92


NPS INV Form No. 04, s. 2008
!
Republic of the Philippines
Department of Justice
NATIONAL PROSECUTIONSERVICE
______________________________
______________________________
!
_________________________,
Complainants/s
I.S. No._____________________
-versus- For:________________________
_________________________,
Respondent/s.
x----------------------------------------x
!
SUBPOENA TO RESPONDENT/S
!
TO: ________________________
________________________
________________________
!
GREETINGS:
! Under and by virtue of the authority vested in me by law, you are
hereby directed to submit your counter-affidavit and other
supporting documents or affidavits of your witness/es, if any, to be
sworn to before me on__________________,200___at____a.m/
p.m. Attached is a copy of the complaint and other evidence
submitted by the complainant.
!
You are hereby WARNED that failure on your part to comply with
the subpoena shall be considered as a waiver of your right to
present your defense and the case shall be considered submitted
for resolution based on the evidence on record.
!WITNESS NY HAND this _______________ day of ___________,
200_____ at
______________, Philippines.
!
________________________________
INVESTIGATING PROSECUTOR

!93


NPS INV Form No. 05, s. 2008
!
Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
_______________________________
_______________________________
!
_________________________,
Complainant/s,
I.S. No.____________________
-versus- For:_______________________
_________________________,
Respondent/s,
x-----------------------------------------x
!
SUBPOENA TO RESPONDENT
(To obtain copies of the complaint and other supporting evidence)
!
TO: ___________________________
___________________________
___________________________
!
GREETINGS:
! In connection with the above-entitled complaint, and by virtue of the
authority vested in me by law, you are hereby directed to obtain,
personally or through your representative, copies of complaint,
supporting affidavits and other evidence submitted by the complainant
at _______________________________, on ______________,
200____at ____a.m./p.m. You or your representative are/is likewise
entitled to examine all other evidence submitted by complainant on
the date and time herein specified.
!
You are hereby WARNED that failure on your part to comply with the
subpoena shall be considered as a waiver of your right to be furnished
copies of the complaint, supporting affidavits and other documents, as
well as to examine all other evidence submitted by the complainant.
!
WITNESS NY HAND this _______________ day of ___________,
200_____ at______________, Philippines.
!
________________________________
INVESTIGATING PROSECUTOR

!94

 !!
!!
NPS INV Form No. 06, s. 2008
!Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
______________________________
______________________________
!_________________________,
Complainants/s
I.S. No._____________________
-versus- For:________________________
_________________________,
Respondent/s.
x----------------------------------------x
!ORDER
! Considering the difficult and/or complicated questions of fact
and of law involved in the instant case, the parties are hereby
required to simultaneously submit their respective
memoranda within ten (10) days from receipt hereof. After the
lapse of the said period, this case shall be deemed submitted
for resolution.
!!
!SO ORDERED.
______________, Date.
!!
________________________________
INVESTIGATING PROSECUTOR

!95
!
!!
NPS INV Form No. 07, s. 2008

Republic of the Philippines

Department of Justice
NATIONAL PROSECUTION SERVICE
_______________________________

!
_______________________________

_________________________,
Complainant/s,
I.S. No.____________________
-versus- For:_______________________
_________________________,
Respondent/s,

!
x-----------------------------------------x

!
SUBPOENA FOR CLARIFICATORY HEARING

TO: (Complainant/s and Counsel)

_________________________

!
_________________________

TO: (Respondent/s and Counsel)

_________________________

!
_________________________

TO: (Witness)
_________________________

!
_________________________

!
GREETINGS:

Pursuant to Sec. 3(e), Rule 112 of the Revised Rules on Criminal Procedure,
and by virtue of the authority vested in me by law, you are hereby required to
appear before me at __________________________, on ______________,
200 _____at ___ a.m./p.m., for the conduct of clarificatory questioning
where only the undersigned can ask questions. You are hereby informed of
your right to be represented by counsel in the said hearing. If you so desire,
you may submit written questions to the undersigned that may be asked of

!!
the paty/ies and/ or witness/es.

WITNESS NY HAND this _______________ day of ___________, 200_____

at

!!
______________, Philippines

________________________________

! INVESTIGATING PROSECUTOR

!96
!

NPS INV Form No. 08, s. 2008
!
Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
_______________________________
_______________________________
!
_________________________,
Complainant/s,
I.S. No.____________________
-versus- For:_______________________
_________________________,
Respondent/s,
!
x-----------------------------------------x
!
ORDER OF CONSOLIDATION
!
It appearing that the above-entitled complaints –
!
(____) are charges and counter-charges
!
(____) arose from one and the same incident or transaction or series
of incidents or transactions;
!
(____) involve common parties and are found on factual and/or legal
issues of the same or similar character,
!
the same are hereby ordered consolidated and the joint preliminary
investigation thereof shall be handled by Asst. City Prosecutor/
Asst. Provincial Prosecutor/State Prosecutor
___________________ to whom the complaint with the lowest
docket number has been raffled/assigned or at the discretion of
the head of office. He/she shall terminate the proceedings within
the prescribed period of sixty (60) days from receipt of the
assignment.
!
SO ORDERED.
________(Place)____________, _________(Date) ___________.
! _________________________________________
CITY/PROVINCIAL/CHIEF STATE PROSECUTOR

!97
!
!!!
!!
!!NPS INV Form_____________________ No. 09, s. 2008

!! (Date)

!!REGIONAL ORDER NO. ________

!! RE : DESIGNATION OF PERSONNEL
!! Inrulestheand interest of the service, and pursuant to existing laws,
regulations, and by reason of the inhibition of the
!! approved, ASST.CITY PROSECUTOR/ASST. PROVINCIAL
Office of the ______________________, which is hereby

!! PROSECUTOR/STATE PROSECUTOR
__________________ of the Office of the City /Provincial
!! Prosecutor of _________________________is hereby
designated as Acting City/Provincial Prosecutor of
!! ____________________to conduct the preliminary
investigation in I.S. No. _____________, entitled
!! “________________”, for _______________, and, if
warranted by the evidence, to file the corresponding
!! Information/s in court.
!! This Order shall take effect immediately and shall remain in
!! full force until revoked or superseded.
!! _____________________________
REGIONAL STATE PROSECUTOR
!!
!!Copy furnished:
!! All concerned.
!!
!!
!
!98
! Sample
! Resolution
Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
_______________________________

!
_______________________________

_________________________,
Complainant/s,
I.S. No.____________________
-versus- For:_______________________
_________________________,
Respondent/s,

!
x-----------------------------------------x

! RESOLUTION

This resolves the above-entitled complaint for violation of Sec. 19(b), paragraphs (1)
and (2), of RA 8239, otherwise known as the “Philippine Passport Act of 1996”, filed by

!
the Department of Foreign Affairs against _____________ a.k.a. ______________.

Record shows that on April 4, 2007, respondent ________ went to the Inter-Agency
Committee Against Passport Irregularities (ICPI) Secretariat and voluntarily
surrendered Passport Nos. MM860451 and HH160901, both issued in Manila and in
the name of a.k.a on 19 April 2004 and 07 May 2001, respectively. The photograph
attached to both passports indubitably belongs to respondent _______. In her affidavit
of explanation submitted to the DFA, respondent admitted having bought the birth
certificate of one a.k.a. somewhere in Libertad, Pasay City for P8,000.00, sometime in
2001. She, then, went to DFA to apply for a passport using the said birth certificate,
pursuant to which she was issued a passport in the name of a.k.a.. She did so in order
for her to be able to again work in Taiwan after her employment contract in the said
country had expired in 1999. Using the said passport, she got employed in Taiwan in
2001 and finished the said contract in 2004. She was hired by another company in
Taiwan in 2004, which contract she finished in March this year. Meanwhile, she met a
Taiwanese boyfriend who knew about her change of name. As they decided to get
married, they applied for legal capacity from the Taipei Economic and Cultural Office
(TECO). In the course thereof, she was asked to get a clearance from the DFA

!
regarding her change of name.

Complainant, thus, accuses respondent for assumption of identity and use of passports
issued under an assumed name, under Sec. 19(b), pars. 1 & 2, of RA 8239. He claims
that respondent personally applied for Passport Nos. HH160901 and MM860451
under the name a.k.a., which pass port issuances were confirmed by the DFA
computer database. She also used the said passport in going to and from Taiwan as a
contract worker. The Department’s computer database also revealed the following
issuances in the name of ___________, born on December 2, 1972 in Cebu City, to

!
wit:

Passport No. : BB8446749

Date & Place of Issue : 25 January 1997/Manila

Passport No. : VV0166339

Date & Place of Issue : 30 April 2007/Manila
Page 1

!99
!! Sample ! Resolution
To substantiate his claim, complainant submitted the application record of
!!Passport Nos. MM860451 and VV0166339, as well as the photopage and
pertinent pages of Passport Nos. HH160901 and MM860451 showing the
!! !
visas and Bureau of Immigration departure and arrival stamps.

!!
Finally, complaint claims that based on the application records of Passport
Nos. MM860451 and VV0166339, it clearly appears that the photographs of
a.k.a. and ________ belong to one and the same person. Hence, this
!! !
complaint.

!!
In exculpation, respondent argues that she could not be held liable under
Sec. 19(b) of RA 8239 as she did not make any falsity in the procurement of
Passport Nos. MM860451 and HH160901. The fact that her photograph
!!
appears on both passports does not mean that she authored any kind of
falsity, the truth being that she merely paid an old woman “fixer” the amount
!!
of P8,000.00 who also assured her that she would be able to leave for and
work in Taiwan for the second time. The said old woman “fixer” who was only

!!
known to her as “Manay” might have confederated with some DFA
employees since after only five (5) days, she gave her the passport bearing

!! !
the name a.k.a.

She was compelled to use the subject passports in going to Taiwan out of

!!
sheer necessity as she was rendered jobless after her employment contract
in Taiwan had expired. Returning to work as a factory worker in Taiwan was
the only means for her to improve her family’s living conditions, she being the
!!
sole breadwinner. Then, she met a Taiwanese boyfriend who expressed
interest to marry her. Together they went to the TECO to secure legal
!!
capacity to marry, whereupon she was told to clear with the DFA the matter of
her having used the subject passports in the name of a.k.a. At the DFA, she

!!
voluntarily surrender the subject passports and prepared a written
explanation on how they were issued, as advised by complaint. She did so in
all honesty and good faith, hoping that it would solve her problem. She never
!!
expected that her having sought the help of the DFA would result in her being
charged criminally.

!!!
Finally, she denies any criminal intent, imploring the kind understanding of

!!
authorities, as she had been merely forced by circumstances beyond her
control, like the lack of job opportunities in the country. She argues that even
the Supreme Court in the case of People versus Librero, GR No. 132311,
!!
September 28, 2000, recognizes the difficult times we are in and realizes that

!!!
hopes for a better future for many Filipinos lie in overseas employment.

!
!! !!
!! Page 2

!
!100
!!Sample Resolution
!!
Evidence adduced likewise sufficiently shows that after securing Passport No.
MM860451 in violation of Sec. 19(b)(1) of RA 8239, respondent used the said
passport on three (3) separate instances, to wit: (1) on October 7, 2004 when she
!!
applied for a visa to Taipei at the TECO; (2) on October 13, 2004 when she left the
Philippines for Taipei; and (3) on March 27, 2007 when she arrived in and entered

!!
the Philippines from Taipei. All these acts fall under the second paragraph of Sec.
19(b), RA 8239, which penalizes any use or attempt to use a passport that has

!!
been secured and issued by means of any false statement. Again, inasmuch as RA
8239 is malum prohibitum, the offender is criminally liable for every single violation
of the law. In this case, respondent is liable for three (3) counts of violation of Sec.
!!
19(b)(2) of RA 8239.

!!
While we agree that the Filipino migrant workers have greatly contributed to our
economy, that a better future for Filipinos lie in overseas employment, we cannot
bargain away faithful observance of our laws and legal processes in the name of
!!
economic prosperity. Trite as it may sound, ours is a government of laws and not of
men. For government stability and good governance, our laws must be fully

!!
enforced, especially those relating to the issuance and use of Philippine passports
which carry the seal of our Republic and embody a request for other governments

!!
to allow the bearer to pass safely and freely. In that sense, a Philippine passport is
not only a public document but a representation of our government. To protect its

!
integrity, tinkering with the said document must be dealt with severely.

!!
WHEREFORE, premises considered, undersigned respectfully recommends that
upon approval of this resolution, the attached informations for violation of Sec.

!!
19(b) of RA 8239, one (1) count under paragraph 1 and three (3) counts under
paragraph 2, be filed against respondent _______________.

!!
City of Manila, December 7, 2007.

!! __________________________
Investigating Prosecutor

!!
RECOMMENDING APPROVAL:
___________________________
APPROVED:
!!
___________________________
Copy Furnished:
!!
DIRECTION ________________
Passport Division
!!
DEPARTMENT OF FOREIGN AFFAIRS
Roxas Blvd., Pasay City

!!
___________________________
Secretariat, Inter-Agency Committee
Against Passport Irregularities (ICPI)
!!
DEPARTMENT OF FOREIGN AFFAIRS
Roxas Blvd., Pasay City

!!
____________________________
Respondent
(Address)
Page 4

!101
!!Sample ! Resolution
!!!
We now resolve.

!!
Attached to the record are copies of the application records of Passport No.
MM860451 in the name of a.k.a. and Passport No. VV0166339 in the name of
respondent ___________, both bearing photographs belonging to one and the
!!
same person. It is not disputed that the photograph attached to both passport
applications belongs to respondent. By attaching her photograph to the

!!
passport application, thereby making it appear that she is a.k.a, the person
named in Passport No. MM860451, respondent has assumed the identity of
a.k.a. in the said passport application, in violation of Sec. 19(b)(1) of RA 8239.
!!
Sec. 19(b)(1) of RA 8239 penalizes any person who willfully and knowingly
“makes any false statement in any application for passport with the intent to
!!
induce or secure the issuance of a passport under the authority of the
Philippines Government, either for his own use or the use of another x x x”.

!!
Given the above factual backdrop, there is no gainsaying that respondent has
committed a false statement or misrepresentation in the application for
Passport No. MM860451 when she stated therein that she is a.k.a, born in
!!!
Marikina on February 21, 1978 when, in truth and in fact, she is not.

!!
Respondent’s claim of good faith and lack of criminal intent is unavailing in
the instant case. Firstly, RA 8239 is a special law which does not require
criminal intent; the offense being malum prohibitum and the mere commission
!!
of the prohibited act is punishable. Moreover, being malum prohibitum, good
faith is not a valid defense. Secondly, evidence adduced shows that Passport
!!
No. MM860451 is a renewal of Passport No. HH160901. Thus, it appears that
respondent has assumed the identity of a.k.a not only once but twice, in 2001

!!
and 2005, which is anathema to any claim of good faith and/ or lack of criminal
intent. Thirdly, record shows that the respective applications for Passport Nos.
HH160901 and MM860451 were personally filed by respondent application.
!!
Necessarily, respondent who posed to be a.k.a personally appeared and
processed the subject passport applications. She has, therefore, knowingly

!!
participated in the commission of the prohibited act. Even assuming gratia
argument that somebody else has instigated the commission of the prohibited
act, respondent is still criminally liable for her own acts. In fact, she knowingly
!!
acceded to the scheme allegedly proposed by a fixer named “Manay”, even

!!!
paying the latter a sizeable amount.

However, considering that the application record of Passport No. HH160901

!!
had already been disposed of, respondent could no longer be prosecuted for
assumption of identity in relation to the said passport for lack of documentary
evidence to prove the violation. As regards Passport No. MM860451 which is
!!
amply supported by the passport application record, probable cause exists
against respondent for violation of Sec. 19 (b)(1) 0f RA 8239.
!
!! Page 3
!!

!102
!!!
Sample Information 1

Republic of the Philippines

REGIONAL TRIAL COURT
National Capital Judicial Region
Branch _______,Pasay City
!
People of the Philippines,
Plaintiff,
CRIM. CASE NO.____________
- versus - (I.S. No.___________________)
_______________________ For: Violation of Sec. 19(b)(1)
of RA 8239
_______a.k.a____________,
-At-Large-
(c/o address),
Accused.
x-------------------------------------x
! INFORMATION
!
The undersigned State/Assistant Provincial/Assistant City Prosecutor,
hereby accuses ____________a.k.a__________________ with violation
of Sec. 19(b), paragraph 1, of RA 8239, otherwise known as “ The
Philippine Passport Act of 1996”, committed as follows:
!
That on April 19, 2004 or thereabout, at the Department of Foreign Affairs,
Roxas Blvd., Pasay City, Metro Manila, and within the jurisdiction of this
Honorable Court, the above named accused did then and there knowingly,
unlawfully and criminally make a false statement in the application for
Passport No. MM860451, by stating therein that she is a.k.a., born on
February 21, 1978 in Marikina, and attaching her own photograph to the
said passport application, thereby assuming the identity of the a.k.a., with
the intent to induce or secure the issuance of a passport under the
authority of the Philippine Government, as she has in fact secured the
issuance of Passport No. MM860451 for her own use and benefit, in
violation of RA 8239 as well as the rules and regulations prescribed in
relation thereto.
!
CONTRARY TO LAW.
! City of Manila for Pasay City, December 7, 2007,
! __________________________
Investigating Prosecutor

!103
 CERTIFICATION
!!
I HEREBY CERTIFY that I have conducted a preliminary investigation in
this case in accordance with law; that the complaint was personally
examined and that on the basis of the sworn-statements and other
evidence presented, there is reasonable ground to believe that the crime
charged has been committed and that the accused is probably guilty
thereof; that the accused was informed of the complaint and of the
evidence presented against her and was given the opportunity to submit
controverting evidence. I further certify that the filing of this Information is
with the prior authority and approval of the Chief State/Provincial/City
Prosecutor.
! City of Manila, Philippines, December 7, 2007
! _____________________
Investigating Prosecutor
!SUBSCRIBED AND SWORN to before me on this ___________ day of
______________ in the City of Manila, Philippines.
!
WITNESSES:
!
1.______________________________
c/o Secretariat, Inter-Agency Committee
Against Passport Irregularities
Department of Foreign Affairs
Roxas Blvd., Pasay City
2.THE RECORDS CUSTODIAN
(or his duly authorized representative)
Consular Records Division
Department of Foreign Affairs
Roxas Blvd., Pasay City
!
(To bring application records and supporting documents of Passport No.
MM860451 in the name of a.k.a and Passport No. VV0166339 in the
name of ___________)
!
3.AND OTHERS
!
BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS
!
Enclosures:
!
Approved Resolution dated December 7, 2007
Complaint-Affidavit of ____________with attachments
Counter-Affidavits of _____________ dated September 11, 2007

!104
!!! Sample Information 2

!! Republic of the Philippines

!!REGIONAL TRIAL COURT

National Capital Judicial Region
Branch _______,Pasay City
!!
People of the Philippines,
!! Plaintiff,
CRIM. CASE NO.____________
!!
- versus -
_______________________
(I.S. No.___________________)
For: Violation of Sec. 19(b)(1)
!!
_______a.k.a____________,
of RA 8239

!!
-At-Large-
(c/o address),

!!
Accused.
x-------------------------------------x

!!
INFORMATION

!!
The undersigned State/Assistant Provincial/Assistant City Prosecutor,
hereby accuses ____________a.k.a__________________ with
!!
violation of Sec. 19(b), paragraph 2, of RA 8239, otherwise known as “
The Philippine Passport Act of 1996”, committed as follows:
!!
That on October 13, 2004 or thereabout, in Pasay City, Metro Manila,

!!
and within the jurisdiction of this Honorable Court, the above-named
accused did then and there knowingly, unlawfully and criminally use or
attempt to use, in her departure to Taipei, Passport No. MM860451 in
!!
the name of a.k.a, born on February 21, 1978 in Marikina, which
passport was secured by the said accused by means of false
!!
statements in the application for passport, in violation of RA 8239 as
well as the rules and regulations prescribed in relation thereto.
!
!!!
CONTRARY TO LAW.

!!
City of Manila for Pasay City, December 7, 2007,

!! __________________________
Investigating Prosecutor

!!
!!
!105
 !! CERTIFICATION
!!
I HEREBY CERTIFY that I have conducted a preliminary investigation in
!!
this case in accordance with law; that the complaint was personally
examined and that on the basis of the sworn-statements and other
!!
evidence presented, there is reasonable ground to believe that the crime
charged has been committed and that the accused is probably guilty
!!
thereof; that the accused was informed of the complaint and of the
evidence presented against her and was given the opportunity to submit
!!
controverting evidence. I further certify that the filing of this Information is
with the prior authority and approval of the Chief State/Provincial/City

! !!
Prosecutor.

! !! City of Manila, Philippines, December 7, 2007

_____________________

! !! Investigating Prosecutor

!!
SUBSCRIBED AND SWORN to before me on this ___________ day of
______________ in the City of Manila, Philippines.
!!
! !!
WITNESSES:

!!
1.______________________________
c/o Secretariat, Inter-Agency Committee

!!
Against Passport Irregularities
Department of Foreign Affairs
Roxas Blvd., Pasay City
!!
!!
2.THE RECORDS CUSTODIAN
(or his duly authorized representative)
!!
Consular Records Division
Department of Foreign Affairs
! !!
Roxas Blvd., Pasay City
(To bring application records and supporting documents of Passport No.
!!
MM860451 in the name of a.k.a and Passport No. VV0166339 in the
name of ___________)
!!
! !!
3.AND OTHERS

! !!
BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS

! !!
Enclosures:

Approved Resolution dated December 7, 2007

!
Complaint-Affidavit of ____________with attachments

!106
 !
Sample Information 3
!!!!
!!
Republic of the Philippines
REGIONAL TRIAL COURT
!!
National Capital Judicial Region
Branch _______,Pasay City
!!
!!
People of the Philippines,
Plaintiff,
!!
CRIM. CASE NO.____________
- versus - (I.S. No.___________________)
_______________________
!!
_______a.k.a____________,
For: Violation of Sec. 19(b)(2)
of RA 8239

!!
-At-Large-
(c/o address),
!!
Accused.
x-------------------------------------x
!!
!!! INFORMATION

!!
The undersigned State/Assistant Provincial/Assistant City Prosecutor,
hereby accuses ____________a.k.a_______________ with violation

!!!!
of Sec. 19(b), paragraph 2, of RA 8239, otherwise known as “ The
Philippine Passport Act of 1996”, committed as follows:

That on March 27, 2007 or thereabout, in Pasay City, Metro Manila,

!!
and within the jurisdiction of this Honorable Court, the above-named
accused did then and there knowingly, unlawfully and criminally use or
!!
attempt to use, in her arrival in, and entry to, the Philippines from
Taipei, Passport No. MM860451 in the name of a.k.a, born on
!!
February 21, 1978 in Marikina, which passport was secured by the
said accused by means of false statements in the application for
!!
passport, in violation of RA 8239 as well as the rules and regulations
prescribed in relation thereto.
!!
CONTRARY TO LAW.
!!!
City of Manila for Pasay City, December 7, 2007,
!!
!! __________________________
Investigating Prosecutor
!!
!
!107
!! CERTIFICATION

I HEREBY CERTIFY that I have conducted a preliminary investigation in

this case in accordance with law; that the complaint was personally
examined and that on the basis of the sworn-statements and other
evidence presented, there is reasonable ground to believe that the crime
charged has been committed and that the accused is probably guilty
thereof; that the accused was informed of the complaint and of the
evidence presented against her and was given the opportunity to submit
controverting evidence. I further certify that the filing of this Information is
with the prior authority and approval of the Chief State/Provincial/City
Prosecutor.
! City of Manila, Philippines, December 7, 2007
! _____________________
Investigating Prosecutor
! SUBSCRIBED AND SWORN to before me on this ___________ day of
______________ in the City of Manila, Philippines.
!
WITNESSES:
!
1.______________________________
c/o Secretariat, Inter-Agency Committee
Against Passport Irregularities
Department of Foreign Affairs
Roxas Blvd., Pasay City
!
2.THE RECORDS CUSTODIAN
(or his duly authorized representative)
Consular Records Division
Department of Foreign Affairs
Roxas Blvd., Pasay City
!
(To bring application records and supporting documents of Passport No.
MM860451 in the name of a.k.a and Passport No. VV0166339 in the
name of ___________)
!
3.AND OTHERS
!
BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS
!
!
Enclosures:
Approved Resolution dated December 7, 2007
Complaint-Affidavit of ____________with attachments

!108
!Sample Information 4
!!!
Republic of the Philippines
REGIONAL TRIAL COURT
National Capital Judicial Region
Branch _______,Pasay City
!
People of the Philippines,
Plaintiff,
CRIM. CASE NO.____________
- versus - (I.S. No.___________________)
_______________________ For: Violation of Sec. 19(b)(2)
of RA 8239
_______a.k.a____________,
-At-Large-
(c/o address),
Accused.
x-------------------------------------x
!
INFORMATION
!The undersigned State/Assistant Provincial/Assistant City
Prosecutor, hereby accuses
____________a.k.a__________________ with violation of Sec. 19(b),
paragraph 2, of RA 8239, otherwise known as “ The Philippine
Passport Act of 1996”, committed as follows:
! That on October 7, 2004, or thereabout, in Makati City, Metro
Manila, and within the jurisdiction of this Honorable Court, the above-
named accused did then and there knowingly, unlawfully and
criminally use or attempt to use Passport No. MM860451 in the name
of a.k.a, born on February 21, 1978 in Marikina, In her application for
visa to Taipei, which Passport No. MM860451 was secured by the said
accused by means of false statements in the application for passport,
in violation of RA 8239 as well as the rules and regulations prescribed
in relation thereto.
!
CONTRARY TO LAW.
!
City of Manila for Pasay City, December 7, 2007,
! __________________________
Investigating Prosecutor

!109
!
!! !
CERTIFICATION
!I HEREBY CERTIFY that I have conducted a preliminary investigation in this
case in accordance with law; that the complaint was personally examined and
that on the basis of the sworn-statements and other evidence presented, there
is reasonable ground to believe that the crime charged has been committed
and that the accused is probably guilty thereof; that the accused was informed
of the complaint and of the evidence presented against her and was given the
opportunity to submit controverting evidence. I further certify that the filing of
this Information is with the prior authority and approval of the Chief State/

!
Provincial/City Prosecutor.

! City of Manila, Philippines, December 7, 2007

_____________________

! Investigating Prosecutor

SUBSCRIBED AND SWORN to before me on this ___________ day of

!
______________ in the City of Manila, Philippines.

!
WITNESSES:

1. ______________________________
c/o Secretariat, Inter-Agency Committee
Against Passport Irregularities
Department of Foreign Affairs

!
Roxas Blvd., Pasay City

2. THE RECORDS CUSTODIAN

(or his duly authorized representative)
Consular Records Division
Department of Foreign Affairs

!
Roxas Blvd., Pasay City

(To bring application records and supporting documents of Passport No.

MM860451 in the name of a.k.a and Passport No. VV0166339 in the name of

!
___________)

!
3. AND OTHERS

!
BAIL RECOMMENDED: THIRTY THOUSAND (P30,000.00) PESOS

!
Enclosures:

Approved Resolution dated December 7, 2007

Complaint-Affidavit of ____________with attachments
Counter-Affidavits of _____________ dated September 11, 2007

!110
!
!!
NPS SAMPLE FORMAT “A” , s. 2008

!
Republic of the Philippines
Department of Justice
NATIONAL PROSECUTION SERVICE
______________________________

!
______________________________

_________________________,
Complainants/s
I.S. No._____________________
-versus- For:________________________
_________________________,
Respondent/s.

!
x----------------------------------------x

ORDER

This treats of the motion to suspend proceedings filed by respondent based on the

!
existence of a prejudicial question.

!
In support of the instant motion, respondent claims ….

!
Complainant counter that …..

!!
The issues having been joined, we now resolve.

! (Brief discussion)

Considering the pendency of a civil case which involves facts intimately related to those
upon which the instant complaint for_____ is based, and that in the resolution of the
issue or issues raised in the said civil case, the guilt or innocence of the accused would
necessarily be determined, undersigned finds the existence of a prejudicial question,

!
thus warranting the suspension of this preliminary investigation.

Accordingly, the preliminary investigation in the above-entitled case is hereby

!
SUSPENDED.

!
SO ORDERED.

_____________, Date.

_____________________

! Investigating Prosecutor

!
RECOMMENDING APPROVAL

!!
_______________________________

!
APPROVED:

!
________________________________________

CITY/PROVINCIAL/CHIEF STATE PROSECUTOR

!111
!!!!
!!!!
!!!
!!!!
!!!!
!!!!
!!!!
!!NPS SAMPLE FORMAT “B” , s. 2008
!CERTIFICATION
!!!
!!Iaffiant HEREBY CERTIFY that I have personally examined the
and I am fully convinced that he/she has voluntarily
!!contents thereof.
executed his affidavit/sworn-statement and understood the

!!!!
!! __________________________
Investigating Prosecutor
!!
!!
!!
!!
!!
!!
!!
!!
FLOWCHART 1: PRELIMINARY INVESTIGATION
!112
 !!
!!
!!
!!
PRELIMINARY INVESTIGATION
(within 60 to 90 days)

SUBPOENA RESPONDENT CLARIFICATORY

COUNTERS QUESTIONING
W/ GROUP RESPONDENT RESOLUTION
PURSUE
ARRAIGNMENT
BAIL FILING
OF INFO IN
RECOMMEND
SUSTAIN
COURT
FILING
ACTION BYOF
INFORMATION
CP/PP/CSP
FOR
W/ REPLY/REJOINDER

!113
FILING OF
PROBABLE
INFO IN
CAUSE
COURT COMPLAINT-
DISMISSAL OF AFFIDAVIT
REVERSE
COMPLAINT

RESOLUTION
COMPLAINT-
MR/APPEAL
PETITION FOR
AFFIDAVIT
REVIEW
NO GROUND DISMISSAL
DISMISSAL OF RESOLUTION
YES
COMPLAINT
W/O
PROBABLE
CAUSE
FOR
RECOMMEND
ACTION BY
DISMISSAL
FLOWCHART 2: PRELIMINARY INVESTIGATION

!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!
!114
FLOWCHART 3: PRELIMINARY INVESTIGATION

!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!!
!115
!PART V. ARRAIGNMENT AND PLEA
!I. GENERAL RULES
!A.PRINCIPLES 1.
Arraignment, being a mandatory requirement, necessitates
the presence of the accused in court who should personally
enter his plea after the reading of the Information in a
language or dialect understandable to him.

2.Before, during and after the arraignment, the trial prosecutor has
well- defined duties to perform.
!
3.The filing of a petition for review affects the arraignment of the
accused in court.
!B. CONCEPTS
!1.Arraignment – is the formal mode and manner of implementing
the constitutional right of the accused to be informed of the
nature and cause of the accusation against him (Sec. 13[2],
1987 Constitution of the Philippines). An arraignment is
necessary in order to fix the identity of the accused, to inform
him of the charge and to give him an opportunity to plead (14
Am. Jur., p. 939, G.V. Jacinto, Criminal Procedure).
!
2.Plea – is the reply of the accused to the charged. In criminal
prosecution, the accused has to plead to the indictment,
which he may do (1) by pleading to the jurisdiction, that is,
alleging that the court has no jurisdiction to try him; (2) by a
demurrer; or (3) by some plea in bar, either a general plea
or a specific plea (Osborn’s Consice Law of Dictionary, 15th
Ed. John Burke, p. 254).
!II. PROCEDURE
!A. DUTIES OF THE TRIAL PROSECUTOR
!1.Before the Arraignment of the Accused
!The trial prosecutor shall examine the Information vis-à-vis the
resolution of the investigating prosecutor in order to make
the necessary correction or revisions and to ensure that the
Information is sufficient in form and substance.
!116
!He shall ensure that the private offended party appears at the
arraignment for purpose of plea bargaining, determination on
civil liability and othrr matters requiring his presence (Sec.
1(f), Rule 116, Revised rules on criminal Procedure).
!• Republic Act No.4908, which requires that in criminal cases
where the complainant is about to depart from the
Philippines with no definite date of return, the accused
should be arraigned without delay and his trial should
commence within three (3) days from arraignment and that
no postponement of the initial hearing should be granted
except on the ground of illness on the part of the accused or
other grounds beyond the control of the court.
!2.During the Arraignment
!During the arraignment, the prosecutor seeks to give the
accused the opportunity at the first instance to know why a
case has benn filed against him. It is the solemn duty of the
trial prosecutor to be present during the arraignment. He
must be attentive at all times during the arraignment so that
he can ensure, among others, that the requirements of a
valid arraignment are duly observed, the identity of the
accused is ascertained and the Information being read to the
accused is the same Information as filed.
!3.After the Arraignment
!The trial prosecutor shall prepare his witnesses for trial.
Government witnesses, e.g. medico-legal officers, chemists,
forensic experts, examiners etc. should, as much as
practicable, be presented in accordance with the logical and
chronological sequence of the technical aspects to be
proved.
!B.EFFECT OF THE FILING OF A PETITION FOR REVIEW
!When an aggrieved party manifests in court that he has a
pending petition for review with the Department of Justice
and moves for a deferment/suspension of the arraignment
pending resolution of his petition, the trial prosecutor may
conform thereto once proof of said petition has been
presented by the petitioner to his satisfaction.
!
!117
C.APPLICABLE RULES IN CASES WHERE THE ACCUSED
PLEADS GUILTY TO A LESSER OFFENSE

1.The trial prosecutor shall immediately move for the suspension

of the proceedings whenever the accused manifests his
intension in court to plead guilty to a lesser offense, when
applicable. This will enable the trial prosecutor to confer with
the private complainant and evaluate the implications of the
offer of the plea bargain.
!2.The trial prosecutor may dispense with the presentation of
evidence when the accused pleads guilty to a lesser offense
which is not a capital offense unless the court directs him to
do so for purpose of determining the penalty to be imposed.
!3.The trial prosecutor, with the consent of the offended party, may
motu proprio agree to the offer of the accused to plead guilty
to a lesser offense if the penalty imposable therefor is prison
correctional (maximum of six [6] years) or less or a fine not
exceeding Php 12,000.00
!4.When the penalty imposable for the offense charged is prision
mayor (at least six [6] years and one [1] day or higher) or a
fine not exceeding Php 12,000.00, the trial prosecutor shall
first submit his comment/recommendation to the Provincial
or City Prosecutor or to the Chief State Prosecutor, as the
case may be, for approval. If the recommendation is
approved in writing, the trial prosecutor, may, with the
consent of the offended party, agree to a plea of guilty to a
lesser offense. For this purpose, the Chief State Prosecutor
or the Provincial or City Prosecutor concerned shall act on
the recommendation of the trial prosecutor within forty-eight
(48) hours from receipt thereof. In no case shall the subject
plea to a lesser offense be allowed without the written
approval of the above respective heads of office.
!5.In all cases, the penalty for the lesser offense to which the
accused may be allowed to plead guilty shall not be more
than two (2) degrees lower than the imposable penalty for
the crime charged, notwithstanding the presence of
mitigating circumstances. The lesser offense shall also be
one that is necessarily related to the offense charged or the
offense must belong to the same classification or title under
the Revised Penal Code or the relevant special laws (DOJ
Circular No. 55, dated 31 July 1990).
!118
!D.WHEN A PLEA OF GUILTY TO A LESSER OFFENSE IS NOT
ALLOWED
!However, the plea of guilty to a lesser offense may not be
allowed where it so contravenes logic and common sense as
to be unconscionable, thereby resulting in injustice. Thus,
where the offense charged is homicide, a plea of guilty to a
lesser offense of frustrated or attempted homicide may not
be allowed, since that the fact of death cannot be reconciled
with the plea of guilty to frustrated or attempted homicide.
Homicide necessarily produces death, while frustrated or
attempted homicide does not (Amatan v. Aujero, 248 SCRA
511 [1995]).
!E.WHEN ACCUSED PLEADS GUILTY TO CAPITAL OFFENSE
! When the accused pleads guilty to a capital offense, the trial
prosecutor must present evidence to prove the guilt of the
accused and the precise degree of his culpability,
notwithstanding the waiver made by the accused during the
pre-trial conference. This is mandatory.
!III. RELEVANT JURISPRUDENCE
!1.In criminal cases, it is the duty of the accused, in addition to the
other pleas authorized by law, to plead whether he is guilty
or not of the crime charged. In that way, and in that way only,
can an issue be created upon which the trial shall proceed
(Golez vs. C.A. 237 SCRA 658).
!2.The period of suspension shall not exceed sixty (60) days
counted from the filing of the petition with the reviewing
office. (Sec.11, par. ©, Rule 116, Rev. Rules on criminal
procedure). However, the court may still suspend the trial
pending final resolution by the DOJ (Lumanlaw v. Judge
Eduardo Peralta, Jr., G.R. No. 164953, February 13, 2006).
!PART VI. PRE-TRIAL
!I. CONCEPT
!A pre-trial is a process whereby the accused and the prosecutors
in a criminal case work out, usually at the arraignment stage,
a naturally satisfactory disposition of a case subject to court
!119
 approval in order to expedite the trial of the case (Black’s
Law Dictionary, 5th Ed., 1979, p. 1037).
!The conduct of a pre-trial conference is mandatory in all criminal
cases (Sec. 1, par. 1, Rule 118, Revised Rules on Criminal
Procedure; SC Circular No. 38-98).
!The pre-trial conference is scheduled after arraignment and
within thirty (30) days from the date the court acquires
jurisdiction over the person of the accused unless a shorter
period is provided for in special laws or circulars of the
Supreme Court, order a pre-trial conference (Sec. 1, par, 1,
Rule 118, supra.).
!The pre-trial order binds the parties, limits the trial to matters not
disposed of, and controls the course of the action taken
during the trial, unless modified by the court to prevent
manifest injustice (Sec. 4, Rule 118, supra.).
!II.SUBJECT MATTERS OF A PRE-TRIAL CONFERENCE
!The pre-trial conference shall consider the following:
!A.PLEA BARGAINING;
!This is a process where the accused usually pleads guilty to a
lesser offense or to only one or some of the counts of a
multi-count indictment in return for a lighter sentence than
that for the graver charge (Black’s Law Dictionary, 5th Ed.
1979, p. 1037).
!• Plea bargaining is not allowed under the Dangerous Drugs Act
where the imposable penalty for the offense charged is
reclusion perpetua to death
!B.STIPULATION OF FACTS;
!This refers to the agreement of the parties on some facts
admitted, some facts covered by judicial notice (Sec. 1, Rule
129, supra.), judicial admissions (Sec. 2, Rule 129 supra.),
or on matters not otherwise disputed by them.
!In case requiring the presentation of government witnesses or
evidence, the trial prosecutor should exert every effort to
secure the admissibility of certain documentary evidence,
!120
 e.g., medical or death certificate, autopsy report, forensic
chemistry report, ballistic report, Philippine Overseas and
Employment Administration (POEA) certification, a
certification from the Firearm and Explosive Unit (FEU) of
the PNP that accused was not a license of a firearm of any
kind or caliber, and the like, for expediency of the court
proceedings.
!The list of witnesses should be qualified by the following
statement: “that other witnesses may be presented in the
course of the trial.”
!Whenever necessary, the counter-affidavit of the accused which
was submitted during the preliminary investigation may be
restored to or availed of to demonstrate or establish the
defense’s theory:
!C.MARKING FOR IDENTIFICATION OF EVIDENCE OF THE
PARTIES;
!D.WAIVER OF OBJECTIONS TO THE ADMISSIBILITY OF
EVIDENCE;
!E.MODIFICATION OF THE ORDER OF TRIAL if the accused
admits the charge but interposes a lawful defense; and
!F.SUCH OTHER MATTERS as will promote a fair and expeditious
trial of the criminal and civil aspects of the case (Sec. 1, Rule
118, supra.).
!III.NON-APPEARANCE AT THE PRE-TRIAL CONFERENCE
!The trial prosecutor shall make sure that he appears at the pre-
trial conference to avoid being sanctioned by the court. (Sec.
3, Rule 118 , supra.)
!IV.DUTIES OF THE PROSECUTOR AT PRE-TRIAL
CONFERENCES
!A.BEFORE THE PRE-TRIAL CONFERENCE
!The prosecutor should know every fact and detail of the case.
This can be accomplished by interviewing the complainant
and other witnesses and after a thorough examination of the
available documentary and other physical evidence.
!121
!The prosecutor should also place importance on the testimony of
the expert witness. The knowledge that the prosecutor will
gain from said witness will help him determine the
procedures undertaken in the examination of a subject or
thing; the scientific or technical terms applied, and the
reason/s in arriving at a certain conclusion.
!B.DURING THE PRE-TRIAL PROCESS
!The prosecutor shall bear in mind that in course of the trial, any
stipulations/ admissions entered into during the pre-trial will
help him prove his case beyond reasonable doubt and that
every act or incident should be proved by the testimony of
qualified and competent witnesses.
!C.AFTER THE PRE-TRIAL CONFERENCE
!The trial prosecutor shall ensures that all agreements or
admissions made or entered during the pre-trial conference
are reduced in writing and signed by the accused and
counsel and approved by the court.
!V.RELEVANT JURISPRUDENCE
!1.The omission of the signature of the accused and his counsel,
as mandatorily required by the Rules, renders the Stipulation
of Facts inadmissible in evidence (Fule v. Court of Appeals,
162 SCRA 446).
!2.A proffer of evidence on the basis of the evidence exhibited by
the accused during the pre-trial is not sufficient. His acquittal
on the basis thereof is a nullity for what of due process
(People v. Judge Santiago, 174 SCRA 143).
!PART VII. BAIL
I. CONCEPTS
!A. PURPOSE OF BAIL
The purpose of bail is to entitled the accused to provisional
liberty pending trial (Bravo, Jr. v. Borja, 134 SCRA 466
[1985]).
!B. NATURE OF THE RIGHT TO BAIL
!
!122
 The right to bail is guaranteed by the Constitution. It is the duty
of the prosecutor to recommend such amount of bail to the
courts of justice as, in his opinion, would ensure the
appearance of an accused person when so required by the
court. (DOJ Circular No. 6, series of 1981)
!C. BASIS OF BAIL
!1. The basis for determining bail is the penalty prescribed by law
for the offense charged and not the penalty actually imposed
for the accused in view of the attendant circumstances.
(Bravo v. Borja, supra.)
2. To allow bail on the basis of the penalty actually imposed
would required a consideration not only of the evidence of
the commission of the crime but also evidence of the
aggravating and mitigating circumstances. There would then
be a need for a complete trial, after which the judge would
be just about ready to render a decision in the case. Such
procedure would defeat the purpose of bail, which is to
entitle the accused to provisional liberty pending trial. (Ibid).
!D. WHEN BAIL IS NOT REQUIRED
!Bail shall not be required of a person charged with violation of a
municipal or city ordinance, a light felony and/or a criminal
offense the prescribed penalty for which is not higher than
six (6) months imprisonment and/or a fine of two thousand
pesos (P2,000.00), or both, where said person has
established to the satisfaction of the court or any other
appropriate authority hearing his case that he is unable to
post the required cash or bail bond, excepting the following
cases:
!1.When he is caught committing the offense in flagrante;
!2.When he confesses to the commission of the offense unless the
confession is later repudiated by him in a sworn statement or
in open court as having been extracted through force or
intimidation;
!3.When he is found to have previously escaped from legal
!4.Whenconfinement, evaded sentence, or jumped bail;

he is found to have previously violated the provisions of

Sec. 2 of RA 6036;
!123
!5.When e is found to be a recidivist or a habitual delinquent or has
been previously convicted for an offense to which the law or
ordinance attaches an equal or greater penalty or for two or
more offense to which it attaches a lighter penalty;
!6.When he commits the offense while on parole or under
!7.Whenconditional pardon, and

the accused has previously been pardoned by the

municipal or city mayor for violations of municipal or city
ordinances for at least two times. (Sec. 1, R.A. No. 6036)
!No bail shall also be required when the law or the Rules issued
!Whenbyatheperson
Supreme Court so provide.

has been in custody for a period equal to or

more than the possible maximum imprisonment of the
offense charged to which he may be sentenced, he shall be
released immediately without prejudice to the continuation of
the trial thereof or the proceedings on appeal. In case the
maximum penalty to which the accused may be sentenced is
destrierro, he shall be released after thirty (30) days of
presentive imprisonment.
!A person in custody for a period equal to or more than the
minimum of the principal penalty prescribed for the offense
charged without application of the Intermediate Sentence
Law or any modifying circumstances, shall be released on a
reduced bail or on his own recognizance, at the discretion of
the court. (Sec. 16, Rule 114, supra.)
!II. DUTIES OF THE PROSECUTOR
!A.WHEN BAIL IS A MATTER OF RIGHT
!When bail is a matter of right, it is the duty of the prosecutor to
recommend such amount of bail to the courts of justice as, in
his opinion, would ensure the appearance of an accused
person when so required by the court.
!!
The following are the instances when bail is a matter of right:
!
!124
1.Before or after conviction by the Metropolitan Trial Court,
Municipal Trial Court, Municipal Trial Court in Cities or
Municipal Circuit Trial Court; and
!
2.Before conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua or life
imprisonment. (Sec. 4, Rule 114, supra.)
!B.WHEN BAIL IS A MATTER OF DISCRETION
!1.Before conviction , bail is a matter of discretion when the offense
charged is punishable by death, reclusion perpetua or life
imprisonment.
!2.Upon conviction by the Rgional Trial Court of an offense not
punishable by death, reclusion perpetua or life
imprisonment, admission to bail is discretionary. The
Regional Trial Court may grant or deny bail depending on
the existence or non-existence of any of the circumstances
below:
!a.that he is a recidivist, quasi-recidivist or habitual delinquent or
has committed the crime aggravated by the circumstance of
reiteration;
!b.that he previously escaped from legal confinement, evaded
sentence or violated the conditions of his bail without valid
justification;
!c.That he committed the offense while under probation, parole or
!d.Thatconditional pardon;

the circumstances of his case indicate the probability of

flight if released on bail; or
!e.That there is undue risk that he may commit another crine
during the pendency of the appeal.
!3.If upon conviction, the Regional Trial Court imposes the penalty
of imprisonment in excess of six (6) years, but not exceeding
twenty (20) years, the accused shall be denied bail or his
bail shall be cancelled, upon a showing by the prosecution,
with notice to the accused, of any of the foregoing
circumstances.
!
!125
4.If none of the circumstances enumerated above exists, the grant
of bail becomes a matter of right. (Sec. 5, Rule 114, supra.)
!C.RIGHT TO NOTICE, MANDATORY
!The duty of the prosecutor to recommend bail entitles him to a
notice every time bail is applied for, even if bail is matter of
right. (Lavides v. CA, GR No. 129670, Feb. 1, 2000)
!When the bail is a matter of discretion, it is the right of the
prosecutor to be notified so he could present evidence to
prove that the evidence of guilt of the accused is strong.
Denial of such notice deprives the State of its right to be
heard, thereby making the bail proceedings void.
!D.RIGHT TO BAIL IN INQUEST CASES
!A person lawfully arrested and detained but who has not yet
been formally charged in court can seek his provisional
release through the filing of an application for bail or release
on recognizance.
!E.GUIDELINES IN RECOMENDING BAIL
!1.When the bail is a matter of right, the prosecutor shall use the
DOJ Bail Bond Guide as his primary guide in recommending
bail.
!2.However, where justice demands reduction or increase of the
amount of bail as indicated in the Bail Bond Guide, the trial
prosecutor shall apply the criteria set forth in Sub-title F
hereof; provided, however, that any recommendation by the
trial prosecutor for the reduction or increase of the amount of
bail shall be with the prior approval of the Chief State/
Provincial/City Prosecutor concerned.
!3.The prosecutor should be able to refute, among others, the
following factors during the hearing on the application for
bail:
!a.Nature and circumstances of the crime;
!b.Character and reputation of the accused;
!c.The weight of the evidence against him;
!126
!d.The probability of the accused appearing at the trial,
!e.Whether or not the accused is a fugitive from justice
!f.Whether or not the accused is under bond in other cases.
(People v. Dacudao, 170 SCRA 489).
!F.CRITERIA IN RECOMMENDING THE AMOUNT OF BAIL
!In recommending the amount of bail to be granted by the court,
the prosecutor shall take into consideration the following
standards and criteria:
!1.Financial ability of the respondent/accused to post bail
!2.Nature and circumstances of the offense;
!3.Penalty for the offense charged;
!4.Age, state of health, character and reputation of the respondent/
accused under detention;
!5.Weight of the evidence against the respondent/accused under
detention;
!6.Forfeiture of other bonds and pendency of other cases wherein
!7.Thethefactrespondent/accused under detention is under bond;

that respondent /accused under detention was fugitive

from justice when apprehended; and
!8.Other factors affecting the probability of the accused appearing
at the trial. (Sec.6, Rule 114, Revised Rules on Criminal
Procedure; DOJ Circular No. 4, series of 1996)
!G.RULES IN COMPUTING THE BAIL TO BE RECOMMENDED
!To achieve uniformity in the amount of bail to be recommended,
the following rules shall be observed:
!1.Where the penalty is reclusion perpetua , life imprisonment,
reclusion perpetua to death or death, bail is not a matter of
right; hence, it shall not be recommended.
!
!127
2.Where bail is a matter of right and the imposable penalty is
imprisonment and/or fine, the bail shall be computed on the
basis of the penalty imprisonment applying the following
rules:
!a.Where the penalty is reclusion temporal (regardless of period) to
reclusion perpetua, bail shall be computed based on the
maximum of reclusion temporal.
!
b.Where the imposable penalty is correctional or afflictive, bail
shall be based on the maximum of the penalty, multiplied by
Php2,000.00. a fraction of a year shall be rounded-off to one
year.
!c.For crimes covered by the Rules on Summary Procedure and
Republic Act No. 6036, bail is not required except when
respondent/accused is under arrest, in which case, bail shall
be computed in accordance with this guideline.
!d.For crimes of reckless imprudence resulting in homicide arising
from violation of the Land Transportation and Traffic Code,
bail shall be Php30,000.00 per deceased person.
!e.For violation of Batas Pambansa Blg.22, bail shall be fifty per
cent (50%) of the amount of checks but should not be less
than Php2,000.00 nor more than Php3,000.00.
!3.Where the imposable penalty is only a fine, bail shall be
!a.Finecomputed as follows:

!b.Fine not exceeding Php2,000.00, bail is not required

of more than Php2,000.00, bail shall be 50% of the fine but

should not exceed Php30,000.00.
!c.In case of reckless imprudence resulting to damage to property,
bail shall be three-eights (3/8) of the value of the damage but
not exceeding Php30,000.00 except when covered by the
Rules on Summary Procedure.
!4.Bail based on the maximum penalty, multiplied by Php10.000.00
shall be applied to the following offenses under the following
laws;
!
!128
a.Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of
2002);
!
b.Republic Act No. 6539 (Anti-Carnapping Act), as amended by
RA 7659;
!c.Republic Act No. 7659 (for other crimes covered by it);
!d.Presidential Decree No. 1866 (Illegal Possession of Firearms,
Ammunition or Explosives), as amended by RA 8294;
!e.Republic Act No. 1937 (Traffic and Customs Code), as
amended; or
!f.Rebellion, insurrection or coup d’etat as amended by Republic
Act No. 6968.
!g.Republic Act No. 7610, as amended (Special Protection of
Children Against Child Abuse, Exploitation and
Discrimination Act)
!h.Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)
!H.HEARING ON PETITION FOR BAIL IS REQUIRED IN NON-
BAILABLE OFFENSES
!
The prosecutor shall ensure that a hearing on the petition for bail
is conducted by the judge as it is absolutely indispensable
for the latter to properly determine whether the prosecution’s
evidence is weak or strong on the issue of whether or not to
grant bail to an accused charged with a heinous crime where
the imposable penalty is death, reclusion perpetua or life
imprisonment. (Tabao v. Espina, 257 SCRA 298 [1996]). He
must therefore be prepared for such a hearing.
!I.EXCEPTION TO THE RULE ON NON-BAILABLE OFFENSES
!An exception to the rule on non-bailability of offenses punishable
by reclusion perpetua, life imprisonment or death is when the
accused is a minor since minority is a special mitigating
circumstance that allow the imposition of the penalty one
degree lower than that prescribed by law (Bravo v. Borja,
134 SCRA 466 [1985]), aside from the fact that RA9344,
otherwise known as the Juvenile Justice and Welfare Act of
2006, provides that every child in conflict with the law (CICL)
!129
 shall be entitled to bail and that the mitigating circumstance
of minority should be taken into consideration in the hearing
for the petition for bail.
!J.RIGHT OF THE PROSECUTION TO PRESENT ALL
EVIDENCE DURING THE BAIL HEARING
!Whether the motion for bail of a defendant who is in custody for
an offense punishable by reclusion perpetua, life
imprisonment or death be resolved in a summary proceeding
or in the course of a regular trial, the prosecution must be
given an opportunity to present, within a reasonable time, al
the evidence that it may desire to introduce before the court
should resolve the motion for bail (People v. San Diego, 26
SCRA 522 [1968]).
!K.EFFECT OF A DENIAL OF THE OPPORTUNITY TO
PRESENT EVIDENCE FOR PURPOSE OF THE PETITION
FOR BAIL
!Should the prosecution be denied of the opportunity to present
all the evidence it may desire to introduce, there would be a
violation of procedural due process and the order of the
court granting bail should be considered void.
!L.PETITION FOR BAIL IN CONTINUOUS TRIAL
In case a petition for bail is filed by the accused and the court
orders a continuous trial of the case, the public prosecutor
shall be prepared to present his principal witnesses. Where
there are several accused and one or two filed a petition to
bail, the trial prosecutor shall, before the presentation of his
first witness, manifest in open court that the evidence to be
presented in the hearing of the petition for bail shall be
adopted as its evidence-in-chief, with a reservation to
present additional evidence during the trial proper when
necessary.
!M.CANCELLATION OF THE BAIL BOND
!
Upon application filed with the court and after due notice to the
prosecutor, the bail bond may be canceled upon surrender of
the accused or presentation of proof of his death.
!
!130
 The bail bond shall be deemed automatically canceled upon
acquittal of the accused or dismissal of the case or execution
of the final judgment of conviction.
!In all instances, the cancellation shall be without prejudice to any
liability on the bond.
!III. OTHER
!A. RELEASEMATTERSON RECOGNIZANCE; GUIDELINES
!1. Whenever allowed pursuant to law or the Rules of Court, the
court may release a person in custody on his own
recognizance or that of a responsible person.
!2. A hearing on the petition for the custody of the accused for
purposes of his/her release on recognizance is mandatory
(Loyola v. Gabo, Jr., AM No. RTJ 00-15-24, Jan. 26, 2000)
!3. The prosecutor should see to it that hearing is conducted to
ensure that the requirements of Sec. 1 and 2 of R.A. No.
6036 are compiled with. (Ibid.)
!B. REQUIREMENTS FOR THE GRANT OF RECOGNIZANCE
!The UNDER RA NO.6036

trial prosecutor should, during the hearing on recognizance,

see to it that:
!1. The accused comes within the coverage of Sec. 1 of RA 6036
!2. Theandaccused
RA 9344 (Juvenile Justice and Welfare Act);

shall sign, in the presence of twp (2) witnesses of

good standing in the community, a sworn statement binding
himself, pending final decision of his case, to report to the
Clerk of Court hearing his case periodically every two (2)
weeks;
!3. In case the court opts to place the accused under the custody
of the responsible person in the community, the prosecutor
should see to it that:
!a. such person under whose custody the accused is placed, shall
execute his own affidavit stating his willingness to accept
custody of the accused; and
!131
!b. the accused shall also include in his own affidavit mentioned
above, a statement that he binds himself to accept the
responsibility of the citizen so appointed by the court as his
custodian.
!IV.RELEVANT JURISPRUDENCE
!1.The Court should not even allow motion for bail to be set for
hearing unless it has acquired jurisdiction over the person of
the accused and the case by its filing in Court. (Dinapol v.
Baldonado, 225 SCRA 110
!
2.In order that a person can invoke his right to bail, it is not
necessary that he should wait until an information is filed
against him. From the moment that he is placed under
arrest, detention or restraint by the officers of the law, he can
claim this guarantee of the Bill of Rights, and this right he
retains unless and until he is charged with a capital offense
and evidence of his guilt is strong. (Herras Teenhankee v.
Rovira, 75 Phil.634)
!
3.Where the accused was charged for murder without the benefit
of a preliminary investigation and trial had already began
over his objections, the accused remains entitled to be
released on bail as a matter of right pending the preliminary
investigation. Should the evidence already of record
concerning the guilt of the accused be, in the reasonable
belief of the prosecutor, strong, the prosecutor may be move
in the trial court for cancellation of the bail. (Vide Tolentino v.
Caano, Jr., 322 SCRA 559)
!4.If the prosecution is denied the opportunity to present, within a
reasonable time, all the evidence that it may want to
introduce before the court may resolve the application for
bail, there would be a denial of due process, as a
consequence of which, the court’s order in respect of the
motion or petition is void. (Carpi, et. Al. v. Maglalang, etc., et
al. 196 SCRA 41).
!
5.There is no need of bail in cases covered by the Rules on
Summary Procedure (Martinez vs. Paguio, 394 SCRA 287
[2002]).
!
PART VIII. ARREST
!132
!I. REMEDY OF THE PROSECUTOR WHEN NO WARRANT OF
!If theAREST WAS ISSUED BY THE JUDGE

investigating judge satisfied that there is probable cause

but did not issue the warrant of arrest contrary to the
prosecutor/s belief that there is a need to place the accused
under custody, the speedy and adequate remedy of the
prosecutor is to immediately file the Information so that the
Regional Trial Court judge may issue the warrant for the
arrest of the accused. (Samulde v. Salvani, Jr., 165 SCRA
724 [1988])
!II.REQUEST FOR A COPY OF THE RETURN
!
If a warrant of arrest has been issued, the prosecutor may
request the warrant officer that he be furnished with the
officer’s return relative thereto. The prosecutor shall, as far
as practicable, coordinate with the witnesses from time to
time to ascertain the whereabouts of the accused pending
the latter’s arrest.
!III.RELEVANT JURISPRUDENCE
!
1. The grounds of suspicion are reasonable when, in the
absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty
committing the offense, is based on actual facts, i.e
supported by circumstances sufficiently strong in
themselves to create the probable cause of guilt of the
person to be arrested. A reasonable suspicion therefore
must be founded on probable cause, coupled “with good
faith on the part of the peace officers making the
arrest.” (People v. Doria, 301 SCRA 668)
!
2. An arrest signifies restraint on person, depriving one of his
own will and liberty, binding him to become obedient to the
will of the law. (Larranaga v. Court of Appeals, 287 SCRA
589)
! 3. A letter-invitation is equivalent to arrest. Where the
invitation comes from a powerful group composed
predominantly of ranking military officers and the
designated interrogation site as a military camp, this is

!133
 obviously a command or an order of arrest. (Sanchez v.
Demetriou, 277 SCRA 627 [1993])
!
4. A police officer is not justified in using unnecessary force in
effecting arrest or in treating with wanton violence the
arrested person or in resorting to dangerous means when
the arrested could be effected otherwise. (Galang v. People,
G.R. No. 128536, January 31, 2000)
!5. A warrant of arrest does not become stale or functus oficio
unlike a search warrant which is valid only for ten days. A
warrant of arrest remains valid until arrest is effected or the
warrant lifted. (Managan v. CFI, 189 SCRA 217)
!PART IX. TRIAL
!I.GENERAL RULES
!A.CONCEPT
!A trial is a judicial examination of the claims at issue in a case
which is presented by the prosecution and defense to enable
the court to arrive at a judgment pronouncing either the guilt
or innocence of the accused (U.S. v. Raymundo, 14 Phil. 416
[1909])
!The object of a trial is to mete out justice, and to convict the
guilty and protect the innocent. Thus, the trial should be a
search for the truth and not a contest over technicalities and
must be conducted under such rules as will protect the
innocent (23 C.J.S. 274).
!The trial prosecutor shall always be prepared to conduct the
prosecution with his witnesses who shall be subpoenaed
well in advance of the scheduled trial dates. No
postponement of the trial or other proceedings of a criminal
case shall be initiated or caused by the trial prosecutor
except in instances where the postponement is occasioned
by the absence of material witnesses or for other causes
beyond his control or not attributable to him.
!B. COVERAGE
!All criminal cases brought for trial before the Regional Trial
Courts, Metropolitan Trial Courts, Municipal Circuit Trial
!134
 Courts, and Municipal Trial Courts except those cases that
are subject to the Rules on Summary Procedure.
!II.TRIAL PREPARATION
!
A. PREPARATION OF TRIAL BRIEF
!The prosecutor assigned to prosecute the case shall prepare the
trial guide. The trial guide. The trial guide, as accomplished,
shall be made a permanent part of the prosecution’s records
of the case. Its preparation shall be in accordance with DOJ
Circular No. 47, s. 2000 (please refer to Appendix “F” on p.
311 of this Manual).
!B. ORDER OF PRESENTATION OF WITNESSES
!The order in the presentation of witnesses will be left to the
discretion of the trial prosecutor. However, the prosecutor
should take into consideration the order of events as
established by the evidence of the prosecution,
!Witnesses who will testify for the first time shall be afforded the
opportunity to observe criminal proceedings in curt to help
them overcome their anxiety, excitement and tension.
!As far as practicable, crucial witnesses shall be summoned by
the trial prosecutor before the actual trial dates for briefing
on their testimony and demeanor during the trial for orderly
and efficient presentation in court.
!C. OFFER OF EXHIBITS
!The trial prosecutor shall safely keep his documentary and other
physical evidence and prepare a list thereof in the order they
have been marked as exhibits, identifying each by letter or
number, describing it briefly, and stating its specific
purposes.
!D. DEFENSE EVIDENCE
!1. Before reception of evidence for the defense starts, the trial
prosecutor shall ask from the adverse counsel the number of
witnesses he intends to present and the nature of their
testimony.
!
!135
2. If the names of the defense witnesses are disclosed, the trial
prosecutor shall elicit from reliable sources the whereabouts
of these witnesses, their moral character, background,
reasons for testifying and relationship with the accused,
among other things, to enable him to have a clear view of
the defense of the accused.
!E. DISCHARGE OF ACCUSED TO BE STATE WITNESS
!When two or more persons are jointly charged with the
commission of any offense, the trial prosecutor, before
resting his case, shall move for the discharge of one or more
of the accused with their consent so that they maybe
witnesses for the State. The motion shall indicate that:
!1.There is absolute necessity for the testimony of the accused
whose discharge is requested (Sec. 17(a), Rule 119, Rules
on Criminal Procedure).
!
2.There is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony
of said accused, (Sec. 17 [b] Rule 119 supra) as when he
alone has knowledge of the crime, and not when his
testimony would simply corroborate or otherwise
strengthen the evidence in the hands of the prosecution
(People v. Borja, et. Al. 106 Phil. 188).
! 3.The testimony of said accused can be substantially
!4. Said corroborated in material points.

accused does not appear to be the most guilty (Lugtu v.

Court of Appeals, 183 SCRA 388).
!5. Said accused has not, at any time been convicted of any
offense involving moral turpitude.
!F. ADMISSION TO THE WITNESS PROTECTION PROGRAM OF
AN ACCUSED WHO HAS BEEN DISCHARGED
!An accused who is discharged from an information or criminal
complaint in order that he may be a state witness as
provided in the preceding section may, upon his petition, be
admitted to the Witness Protection Program under RA 6981,
otherwise known as “The Witness Protection, Security and

!136
 benefit Act” if he complies with the other requirements of
said Act.
!G.OTHER PERSONS WHO MAY AVAIL OF THE WITNESS
PROTECTION PROGRAM
!
The trial prosecutor shall recommend the admission to the

!1.AnyWitness Protection Program of the following persons:

person who has witnessed or has knowledge of or

information on the commission of a crime and has testified or
is testifying or is about to testify before any judicial or quasi-
judicial body, or before any investigating authority, Provided
that:
! • The offense in which his testimony will be used is a grave
felony as defined under the Revised Penal Code or its
equivalent under special laws;

•
!
His testimony can be substantially corroborated on its
material points;
! • He or any member of his family within the second civil
degree of consanguinity or affinity is subjected to threats
to his life or bodily injury or there is a likelihood that he
will be killed, forced, intimidated, harassed or corrupted
to prevent him from testifying, or to testify falsely or
evasively, because or on account of his testimony; and

•
!
He is not a law enforcement officer, even if he would be
testifying against other law enforcement officers. In such
a case, only the immediate members of his family may
avail themselves of the protection provided for under the
Act.
!2.Any person who has participated in the commission of a crime
and desires to be a witness for the State, whenever the
following circumstances are present:
! • The offense in which his testimony will be used is a grave
felony as defined under the Revised Penal Code or its
equivalent under special laws;
!
• There is absolute necessity for his testimony;
!
!137
 • There is no other direct evidence available for the proper
prosecution of the offense committed;
! • His testimony can be substantially corroborated on its material
! • Hepoints;
! • He does not appear to be the most guilty; and

has not at any time been convicted of any crime involving

moral turpitude.
!H.MOTIONS FOR POSTPONEMENT BY THE ACCUSED
!
The trial prosecutor shall vigorously oppose any motion for
postponement initiated by the accused, unless for valid and
compelling reasons. He should make of record his objections
thereto, leaving to the court’s discretion the disposition of the
subject motions (People v. Borja, supra).
!I.DISCONTINUANCE OF PROCEEDINGS
!
During the presentation of the prosecution’s evidence, the trial
prosecutor shall not cause or allow the discontinuance of the
proceedings except for other similarly compelling reasons
not attributable to him (Ibid.).
!J.PRESENTATION OF EVIDENCE
!
The trial prosecutor is bound to complete the presentation of his
evidence within the trial dates assigned to him. After the
lapse of said dates, he is deemed to have completed his
evidence presentation. However, based on serious reasons,
he may file a verified motion to allow him additional trial
dates at the discretion of the court.
!III.PROCEDURE
!1.CONTINUOUS TRIAL UNTIL TERMINATED
!
Upon receipt of the notice of trial, the prosecutor shall review the
record of the case for trial and complete his preparation
there for bearing in mind that trial, once commenced, may
continue from day to day until terminated. He may, however,
move for postponement for a reasonable period of time for
good cause (Sec. 2, par. 1, Rule 119 supra.).
!138
!The time limitation is not applicable to:
!1.Criminal cases covered by the Rule on Summary Procedure or
where the penalty prescribed by law does not exceed six (6)
months imprisonment, or a fine of one thousand pesos
(P1,000.00) or both, irrespective of other imposable
penalties, is governed by Rule 123.
!2.RA 4908 (An Act Requiring Judges of Courts to Speedily Try
Criminal Cases Wherein the Offended Party is a Person
about to Depart from the Philippines with No Definite Date of
Return) requires such cases to take precedence over all
other cases before our courts except election and habeas
corpus cases. The trial in these cases shall commence
within three days from the date the accused is arraigned
and no postponement of the initial hearing shall be granted
except on the ground of illness on the part of the accused or
other grounds beyond the control of the accused.
!3.Speedy Trial of Child Abuse cases – The trial of child abuse
cases shall take precedence over all other cases before the
courts, except election and habeas corpus cases. The trial in
the said cases shall commence within three (3) days from
the date the accused is arraigned and no postponement of
the initial hearing shall be granted except on account of the
illness of the accused or other grounds beyond his control
(Sec. 21, Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases issued pursuant to Sec.
32 of R.A. No. 7610, otherwise known as “the Child Abuse
Act”).
!4.Violations of the Comprehensive Dangerous Drugs Act of 2002
(RA 9165) – Trial of these cases shall be finished by the
court not later than ninety (90) days from the date of the
filing of the information.
!5.Under Administrative Code No. 104-96 of the Supreme Court,
the cases of kidnapping and/or kidnapping for ransom,
robbery in band, robbery committed against a banking or
financial institution, violation of the Anti-Carnapping Act of
1972 as amended, and Other Heinous Crimes (RA 7659)
committed within the respective territorial jurisdiction of the
courts shall under go mandatory continuous trial and shall be

!139
 terminated within sixty (60) days from commencement of the
trial.
!B.ORDER OF TRIAL
Trial shall proceed in the following order pursuant to Sec. 11,
Rule 119 of the Revised Rules on Criminal Procedure:
!1.The prosecution shall present evidence to prove the charge and,
!2.Theinaccused
the proper case, the civil liability.

may present evidence to prove his defense, and

damages, if any, arising from the issuance of any provisional
remedy in the case.
!3.The parties may then respectively present rebutting evidence
only, unless the court, in furtherance of justice, permits them
to present additional evidence bearing upon the main issue.
!4.Upon admission of the evidence, the case shall be deemed
submitted for decision unless the court directs the parties to
argue orally or to submit memoranda.
!5.However, when the accused admits the act or omission charged
in the Complaint or Information but interposes a lawful
defense, the order of trial may be modified accordingly.
!C.PRESENTATION OF WITNESSES
!
The order in the presentation of witnesses shall, as far as
practicable, conform to the logical sequence of events
obtaining in the case on trial in order to present a clear,
organized and coherent picture to the court of the
prosecution’s evidence.
!For example, in the case of prosecution under the
Comprehensive Dangerous Drugs Act of 2002, the trial
prosecutor should present the forensic chemist who
examined the dangerous drug ahead of the other witnesses
in order that the court may at once have a view of the real
evidence (either the prohibited or regulated drug subject of
the case) and so that such evidence may be immediately
identified by the other witnesses thus avoiding the recall of
witnesses later on.
!
!140
 The Rule of logical sequencing notwithstanding, a witness whose
testimony is vital to the case and whose life is I danger or
who may be sick/injured and may possibly die should be
made to testify as early as practicable.
!D.CONDITIONAL EXAMINATION OF WITNESS FOR THE
PROSECUTION
!
The trial prosecutor shall move for the conditional examination of
a prosecution witness who is too sick or infirm to appear at
the trial or has to leave the Philippines with no definite date
of returning. Such examination shall be done in the presence
of the accused or in his absence after reasonable notice to
attend the examination has been served on him, shall be
conducted in the same manner as an examination at the
trial. Failure or refusal on the part of the accused to attend
the examination after notice herein before provided shall be
considered a waiver (Sec. 15, Rule 199, supra.).
!E.CROSS-EXAMINATION OF THE DEFENSE WITNESSES
!
The prosecutor shall endeavor to secure well in advance all
available information about a defense witness in order to
prepare for an effective cross-examination. Where the
testimony of a defense witness bears no effect on the
evidence of the prosecution, a cross-examination need not
be conducted.
!F.REBUTTAL EVIDENCE
!
The presentation and nature of rebuttal evidence will depend on
the effect which the defense evidence may have caused on
the prosecution’s evidence-in-chief. The recall of a witness
who already testified during the evidence-in-chief
presentation merely to refute what a defense witness may
have stated during his defense testimony is not generally
rebuttal evidence. Where there is nothing to refute, rebuttal
evidence is unnecessary.
!G.REQUEST FOR SUBPOENA
!
In all cases requiring the appearance in court of a witness for the
purpose of testifying upon a report (e.g. medico legal,
autopsy, chemistry, ballistics, statement of accounts, etc.)
prepared by him or by his office, the trial prosecutor shall
!141
 indicate the reference number of the report in the request for
subpoena.
!H.CUSTODY OF PHYSICAL AND REAL EVIDENCE PENDING
TRIAL
!
In keeping with the professional responsibility of the trial
prosecutor, all the physical and real evidence shall remain in
custody with the police authorities or other law enforcement
officers. In those instances when the evidence is of a
perishable nature, the trial prosecutor shall ensure that
measures are taken to provide for secondary evidence
consisting of photographs, or pictures of the physical and
real evidence, which evidence shall be attached to the
records of the case.
!IV. RELEVANT JURISPRUDENCE
!
1.The general rule is that motions for postponement are granted
only upon meritorious ground and no party has the right to
assume that his motion will be granted. (De Guia v.
Guerrero, Jr., 234 SCRA 625 [1994]);
!2.Under Sec. 9, Rule 119 of the Revised Rules on Criminal
Procedure, the petitioners have the burden of proving the
factual basis of their motions for the dismissal of the
Informations on the ground of a denial of their right to a
speedy trial and to a speedy disposition of the cases against
them. They were burdened to prove that such delay caused
by the prosecutor was vexatious, capricious or whimsical.
On the other hand, the prosecutor was burdened to present
evidence to establish that the delay in the submission of his
report on reinvestigation of the cases was reasonably
attributed to the ordinary process of justice, and that the
accused suffered no serious prejudice beyond that which
ensued after an inevitable and ordinary delay. (Corpuz v. The
Sandiganbayan, 442 SCRA 294 [2004]; Lumanlaw v. Judge
Edgardo Peralta, Jr., G.R. No. 164953, Febuary 13, 2006);
!3.The trial of an accessory can proceed without awaiting the result
of the separate charge against the principal. The
corresponding responsibilities of the principal accomplice
and accessory are distinct from each other. As long as the
commission of the defense can be duly established in
evidence, the determination of the liability of the accomplice
!142
 or accessory can proceed independently of that of the
principal. (Vino v. People, 178 SCRA 626.);
!4.The right of two or more accused in a criminal case, to be tried
separately is essential and cannot be denied by the court
(Sec. 33 of General Orders No. 58 (U.S. v. Torres, 62 Phil.
942). When a separate trial is demanded and granted, it is
the duty of the prosecutor to repeat and produce all its
evidence at each and every trial, unless it had been greed by
the parties that the evidence for the prosecution would not
have to be repeated at the second trial and all the accused
had been present during the presentation of the evidence for
the prosecution and their attorneys had the opportunity to
cross-examine the witnesses for the prosecution who
testified. (People v. Carpio, 68 phil. 490);
!5.The rule therefore, relative to the right of the right of the
government prosecutor to utilize a person who has
participated in the commission of a crime as a witnesses for
the prosecution is as follows:
!a)When an offense is committed by more than one person, it is he
duty of the prosecutor to include all of them in the Complaint
or Information (Sec., Rule 110, Rules of Court);
!
b)If the prosecutor desires to utilize one of those charged with the
offense as a government witness, the prosecutor may ask
the court to discharge one of them after complying with the
conditions prescribed by law (Sec. 9, Rule 119);
!c)There is nothing in the rule from which it can be inferred that
before a person can be presented as a government witness,
that he be first included as a co-accused in the Information,
for the prosecutor is free to produce as a witness anyone
whom he believes can testify to the truth of the crime
charged (U.S. v. Enriquez, 40 Phil. 603);
!d)The failure to follow the requirements of the rule relative to the
use of a person, himself particeps criminis, as a government
witness does not violate the due process clause of the
constitution, nor render his testimony ineffectual if otherwise
competent and admissible. (People v. Binsol, 100 Phil. 713.);
!6. The discharge contemplated by the rule is one effected or which
can be effected at any stage of the proceedings, from the
!143
 filing of the Information to the time the defense starts to offer
any evidence. (People v. Aninon, 158 SCRA 701);
!7. The mere fact that the witness sought to be discharged had
pleaded guilty to the crime charged does not violate the rule
that the discharge defendant must not “appear to be the
most guiltiy”. And even if the witness dhould lack some of the
qualifications enumerated by Sec. 17, Rule 119, his
testimony will not, for that reason alone, be discarded or
disregarded. (People v. De Leon, et. Al., 108 Phil. 104
[1960]). All the perpetrators of the offense bound in
conspiracy are equally guilty. (People c. Borja. 147 SCRA
169 [1987]);
!8. The ground underlying the rule is not to let a crime that has
been committed go unpunished; so an accused who is not
the most guilty is allowed to testify against the most guilty, in
order to achieve the greater purpose of securing the
conviction of the more or most guilty and the greatest
number among the accused permitted to be convicted for the
offense committed. (People v. Bayona, et. Al., 108 Phil. 104
[1960]). All the perpetrators of the offense bound in
conspiracy are equally guilty. (People v. Borja. 147 SCRA
169 [1987]);
!9. This is an indispensable requirement because it is a notorious
fact in human nature that a culprit who confesses to a crime,
is likely to put the blame on others rather than himself. Thus,
evem though a court may get the statement of a discharged
accuse that other persons were engaged in the crime it is
unsafe to accept, without corroborating evidence, his
statements concerning the relative blame to be attached to
different members of his gang. (People v. Mandagan, 52
Phil. 62 [1928]);
!10. Meaning of “not the most guilty” is “not the least guilty” (People
v. Court of Appeals, 131 SCRA 107 [1984]). The rule does
not require that he be the “least guilty” but only that he not
be “the most guilty”. (People v. Faltado, 84 Phil.)
!PART X. APPEAL/PETITION FOR REVIEW
!I.GENERAL RULES
!
A. WHAT MAY BE APPEALED
!144
!The resolutions of the Chief State Prosecutor/ Regional State
Prosecutor/Provincial or City Prosecutor in criminal cases
may be the subject of a petition for review or appeal.
!B. VENUE FOR THE FILING OF THE APPEAL/PETITION FOR
REVIEW
!1. Appeals from/petitions for review of the resolution of the
Provincial/City Prosecutors in cases which fall under the
jurisdiction of the Regional Trial Court shall be filed with the
Office of the Secretary of Justice.
!2. Appeals from/petitions for review of the resolutions of the
Provincial/City Prosecutors in cases cognizable by the
Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts shall be filed with the Office of
the Regional State Prosecutor. The resolution of the
Regional State Prosecutor is Final.
!3. In the National Capital Region, the appeals/petitions for review
of the City Prosecutors in cases falling under the jurisdiction
of the Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts shall be filed with the Office of
the Chief State Prosecutor. The resolution of the Chief State
Prosecutor is final.
!The provisions of the proceeding paragraphs on the finality of the
resolution of the Chief State Prosecutor and the Regional
State Prosecutor notwithstanding, the Secretary of Justice
may, in the interest of justice and pursuant to his residual
authority of supervision and control over the prosecutions of
the Department of Justice, order the review by his office of
the resolution of the Chief State Prosecutor and the Regional
State Prosecutors in the cases appealed to the them.
!C. PERIOD TO FILE THE APPEAL/PETITION FOR REVIEW
!The appeal/petition for review must be filed within fifteen (15)
days from receipt of the questioned resolution by the party or
his counsel or if a motion for reconsideration has been filed,
within fifteen (15) days from receipt of the resolution denying
the motion for reconsideration. Only one (1) motion for
reconsideration shall be entertained.
!
!145
D. FORM AND CONTENTS
!The appeal/petition for review shall be verified by the appellant/s/
petitioner/s and shall contain the following:
!1. names and addresses of the parties;
!2. the Investigation Slip Number (I.S. No.) and/or Criminal Case
Number (C.C. No..), if any and the title of the case including
the offense charged in the complaint or information;
!3. the venue of the preliminary investigation;
!4. the specific material dates showing that it was filed on time;
!5. a clear and concise statement of the facts, the assignment of
!6. prooferrors, and the legal basis of the appeal/petition for review.

of service of a copy/ies of the appeal/petition for review to

the adverse party/ies or counsel and the prosecution office
concerned.
!7. proof of payment of the appeal fee.
!The investigating/ reviewing/approving prosecutor shall not be
impleaded as appellee. The party taking the appeal shall be
referred to in the appeal as either “complaint-appellant” or
“respondent-appellant”.
!E. DOCUMENTARY ATTACHMENTS
!The appellant/petitioner shall append to his appeal/petition a
legible duplicate original or certified true copy of the
resolution appealed from together with legible copies of the
complainant, affidavits/sworn statements (including their
translations, if any, duly certified by the provincial/city
prosecutor) and other evidence submitted by both parties in
the preliminary investigation or re-investigation. Evidence
submitted for the first time on appeal shall not be admitted. If
submitted, the reviewing prosecutor shall disregard it. A copy
of the motion to defer proceedings shall likewise be attached
to the appeal/petition when an information has already been
filed in court.
!
!146
E. EFFECT OF FAILURE TO COMPLY WITH THE
REQUIREMENTS
!The failure of the appellant/ petitioner to comply with any of the
requirements in the provisions under sub-titles B,C,D, and E
shall constitute sufficient ground for the dismissal of the
appeal.
!G. WHEN AN INFORMATION HAS BEEN FILED IN COURT
!In appeals filed before the Secretary of Justice/Chief State
Prosecutor/ Regional State Prosecutor and when an
information has already been filed in court, it is the duty of
the appellant to immediately inform the concerned appellate
authority of the action of the court on the motion to defer
proceedings. Failure of the appellant to inform shall be a
ground for the dismissal of the appeal/petition for review.
!H. WHEN ACCUSED/ APPELLANT IS ARRAIGNED DURING
!WhenPENDENCY OF APPEAL/PETITION FOR REVIEW

the accused is arraigned during the pendency of the

appeal, the prosecutor concerned shall likewise immediately
inform the Secretary of Justice/Chief State Prosecutor/
Regional State Prosecutor of such an arraignment.
!I. APPELLEE’S COMMENT
!Within a non-extendible period of fifteen (15) days from receipt of
a copy of the appeal/petition for review, the appellee may file
a verified answer/comment indicating therein the date that
the copy of the appeal/petition was received with proof of
service of the comment to the appellant. If no comment is
filed, the case shall be resolved on the basis of the appeal/
petition.
!J. SUMMARY ACTION
!The secretary of justice/Chief State Prosecutor/ Regional State
Prosecutor may dismiss the appeal outright for being
patently without merit or manifestly intended for delay, or
when the issues raised therein are too unsubstantial to
require consideration. If an Information has been filed in
court, the appeal/petition for review shall not be given due
course if the accused has already been arraigned.
!147
!K. WITHDRAWAL OF THE APPEAL/PETITION FOR REVIEW
!The appeal/petition for review may be withdrawn at any time
before it is finally resolved, in which case the questioned
resolution shall stand as if no appeal/petition has been
taken.
!L. MOTION FOR REINVESTIGATION PENDING APPEAL
!1. When an Information Has Not Yet been Filled in Court
!At any time after the filing of the appeal/petition and before its
resolution, the appellant/petitioner may file a motion for
reinvestigation before the Office of the Secretary of Justice/
Office of the Chief State Prosecutor/Office of the Regional
State Prosecutor on the ground that new and material
evidence has been newly discovered which appellant/
petitioner could not, with reasonable diligence, have
discovered during the preliminary investigation and which, if
produced and admitted, would probably change the
resolution.
!2. when an Information Has Been Filed in Court
!If the case is pending appeal and an Information has been filed
in court, the appellant shall inform the court of the filing of a
motion for reinvestigation with the Office of the Secretary/
Regional State Prosecutor and shall ask the court to defer
proceedings. The reinvestigation of the case shall be
conducted by the prosecution office from which the appeal
was taken. (see Marcelo vs. C.A., 235 SCRA 39 [1994];
Roberts vs. C.A., SCRA 207 [1996]; Dimatulac vs. Vilon, 297
SCRA 679 [1998]; Solar Entertainment vs. How, 338 SCRA
511 [2000]; Community Rural Bank of Guimba vs. Talavera,
455 SCRA 34 [2005])
!The Office of the Secretary or the Office of the Regional State
Prosecutor, as the case may be, shall then issue a resolution
directing the reinvestigation of the case, if still legally
feasible. When reinvestigation is granted, it shall take place
in the Office of the Prosecutor from which the petition was
taken.
!M. DISPOSITION OF THE APPEAL/PETITION FOR REVIEW
!148
!The Secretary of Justice/Chief State Prosecution/Regional State
Prosecutor may reverse, affirm or modify the appealed
resolution. They may, motu proprio or on motion of the
appellee, dismiss outright the appeal/petition on any of the
following grounds:
!1. that the petition was filed beyond the period prescribed in Sec.
!2. thatCthehereof;
!3. that thereoffense has prescribed;

is no showing of any reversible error;

!4. that the procedure or requirements herein prescribed have not
been complied with;
!5. that the questioned resolution is interlocutory in nature, except
when it suspends the proceedings based on the alleged
existence of prejudicial question;
!6. that the accused had already been arraigned when the appeal/
petition for review was taken, or was arraigned during the
pendency of the appeal/petition; or,
!7. that other legal or factual grounds exist to warrant a dismissal.
!N. MOTION FOR RECONSIDERATION
!The aggrieved party may file with the offices concerned, a
motion for reconsideration within a non-extendible period of
fifteen (15) days from receipt of the resolution on the petition/
appeal.
!He/She shall:
!1. furnish the adverse party or his counsel and the prosecution
offices concerned with copies thereof;
!2. submit
!3. pay theproof of such service; and

!Only onecorresponding legal fee/s

(1) motion for reconsideration shall be entertained.

!
!149
O. EFFECT OF FILING THE APPEAL/PETITION FOR REVIEW
!The appeal/petition for review shall not prevent the filling of the
information in court unless the Secretary of Justice/Chief
State Prosecutor/Regional State Prosecutor as the case may
be, directs otherwise.
!Pending the resolution of the appeal/petition for review, the
accused may move before the court for the suspension of
the proceedings, to hold in abeyance the issuance of a
warrant of arrest and the deferment of his arraignment.
!II. RELEVANT JURISPRUDENCE
!1. Sec. 79 of the Revised Administrative Code defines the extent
of a department Secretary’s power. The power of control
therein contemplated means (the power of the department
head) to alter, modify or nullify or set aside what a
subordinate officer had done in the performance of his duties
and to substitute the judgment of the former for that of the
latter. The power of control implies the right of the President
(and naturally of his/her alter ego) to interfere in the exercise
of such discretion as may be vested by law in the officers of
the national government, as well as act in lieu of such
officers (Noblejas v. Sales, 67 SCRA 47).
!2. While it is duty of the prosecutor to prosecute persons who,
according to evidence received from the complainant, are
shown to be guilty of a crime, the Secretary of Justice is
likewise bound by his oath of office to protect innocent
persons from groundless, false or serious prosecution. He
would be committing a serious dereliction of duty if he orders
or sanctions the filing of an Information based upon a
complaint where he is not convinced that the evidence would
warrant the filling of the action in court. As he has the power
of supervision and control over prosecuting officers, the
Secretary of Justice has the ultimate power to decide which,
as between two conflicting theories of the complainant and
the respondents, should be believed (Vda. De Jacob v.
Puno, 131 SCRA 148 [1984]).
!3. the DOJ Order allows the filling of an Information in court after
the consummation of the preliminary investigation even if the
accused can still exercise the right to seek review of the

!150
 prosecutor’s recommendation with the Secretary of Justice
(Solar Entertainment, Inc. v. How, 338 SCRA 511 [2000]).
!4. There is nothing in Crespo v. Mogul, 151 SCRA 462 [1987]
which bars the DOJ from taking cognizance of an appeal, by
way of a petition for review, by an accused in a criminal case
from an unfavorable ruling of the investigating prosecutor. It
merely advised the DOJ to, “as far a s practicable, refrain
from entertaining a petition for review or appeal from the
action of the prosecutor, when the Complaint or Information
has already been filed in Court (Marcelo v. Court of Appeals,
235 SCRA 39 [1994]). Reiterated in the case of Community
Rural Bank of Guimba v. Talavera, 455 SCRA 34 [2005]).
!5. Petitioners were not barred from appealing from the resolution
holding that only homicide was committed, considering that
their complaint was for murder. By holding that only homicide
was committed, the Provincial prosecutor’s Office of
Pampanga effectively “dismissed” the complaint for murder.
To rule otherwise would be to forever bar redness of a valid
grievance, especially where the investigating prosecutor
demonstrated what unquestionably appeared to be
unmitigated bias in favor of the accused (Dimatulac v. Villon,
297 SCRA 679).
!6. A motion for reinvestigation on the ground of newly discovered
evidence must be filed before the Secretary of Justice rules
on an appeal from a resolution in a preliminary investigation
(Community Rural bank of Guimba v. Talavera, supra.)
!7. The Resolution of the DOJ Secretary is appealable
administratively to the Office of the President where the
offense charged is punishable by Reclusion Perpetua (de
Ocampo v. Secretary of Justice, G.R. No. 147932, Jan.
25,2006 citing Memo. Circular No. 58, citing Dee v. CA, 238
SCRA 254).
!PART XI. MISCELLANEOUS MATTERS
!I. HOLD DEPARTURE ORDERS AGAINST ACCUSED
PERSONS
!To ensure that those accused of criminal offenses will not evade
prosecution and punishment by leaving abroad during the
pendency ofcriminal proceedings, trial prosecutors are
!151
 directed, pursuant to DOJ Circular No. 38 dated 15 August
1990, to move for the issuance by the court of a Hold
Departure Order (HDO) (please refer to NPS Sample Format
“C” on p. 294 of this Manual) against the accused and for the
Bureau of Immigration to implement the same in the
following cases:
!1. Violation of PD 1866, as amended by RA 8294, codifying the
laws on illegal/unlawful possession, manufacture, dealing in,
acquisition or disposition of firearms, ammunition and
explosives;
!2. Crimes against public order (e.g. rebellion, sedition, etc) defined
and penalized in the Revised Penal Code;
!3. Violations of RA No. 6435, “The Dangerous Drugs Law”, as
amended (now RA 9165 otherwise known as the
Comprehensive Dangerous Act of 2002);
!4. Violation of RA No. 6539, “The Anti-Carnapping Law”;
!5. Violations of Secs. 3601 to 3603, inclusive, and Secs. 3605 to
!6. Bank3610, inclusive of the Traffic and Customs;

frauds and frauds against public treasury and other

crimes involving economic sabotage.
!II. CANCELLATION OF TRAVEL DOCUMENTS
!In case where the accused has jumped bail and fled to another
country, the trial prosecutor shall immediately report (please
refer to NPS Sample Format “D-1” on p.296 this Manual) to
the Chief State Prosecutor/Regional State/ Provincial/City
Prosecutor who shall, with the approval of the Secretary of
Justice (please refer to NPS Sample Format “D-2” on p. 297
of this Manual),make appropriate representations with the
Department of Foreign Affairs for the cancellation of the
accused’s passport and other travel documents so as to
make the accused an undocumented alien in the host
country and thereby made subject to deporation and is being
considered as a fugitive from justice.
!III. HANDLING OF CRIMINAL COMPLAINTS FILED AGAINST
! PUBLIC OFFICERS AND EMPLOYEES
!152
 In addition to DOJ Circular No. 26 dated July 3, 2008 (please
refer to Appendix “G” on p. 313 of this Manual), the following
guidelines shall also be observed in the investigation and
prosecution of cases against public officers and employees
pursuant to OMB-DOJ Circular No. 95-001, series of 1995,
to wit:
!1.Preliminary investigation and prosecution of offenses committed
by public officers and employees in relation to their office,
whether cognizable by the Sandiganbayan or the regular
courts and whether filed with the Office of the Ombudsman
or with the office of the Provincial/City Prosecutor shall be
under the control and supervision of the Office of the
Ombudsman.
!2. Unless the Ombudsman, under its constitutional mandate, finds
reason to believe otherwise, offenses which are not in
relation to office and cognizable by the regular courts shall
be investigated and prosecutor by the Office of the
Provincial/City Prosecutor which shall rule thereon with
finality.
!3. The preparation of the Information shall be the responsibility of
the Investigating Prosecutor who conducted the Preliminary
investigation. The resolution recommending prosecution,
together with the duly accomplished Information, shall be
forwarded to the appropriate approving authority.
!4. Towards the effective monitoring of all investigations and
prosecution of criminal offenses against the public officers
and employees, the Offices of the Provincial/City Prosecutor
shall submit to the Office of the Ombudsman a monthly
report of all complaints filed with their respective offices
against public officers and employees.
!IV. NOTIFICATIO OF PROSECUTOR OF THE FILING OF AN
!The APPLICATION FOR PROBATION

court shall notify the trial prosecutor of the filling of an

application for the grant of probation filed by a defendant
after conviction and sentencing but before service of
sentence (Sec. 4, PD 968, as amended by PD 1527)
!A. COMMENT ON APPLICATION FOR PROBATION
!
!153
 The trial prosecutor shall submit his comment to the application
for probation within ten (10) days from receipt of the
notification of the filing of said application (Sec. 4, PD 968,
as amended, supra.).
!B. RELEASE OF APPLICANT FOR PROBATION
!Pending resolution of the application for probation, the accused
may be released on temporary liberty under his bail filed in
the criminal case. In case no bail was filed or if the
defendant is not capable of filing one, the court may release
the defendant on recognizance to the custody of a
responsible member of the community who shall guarantee
his appearance whenever required by the court (Sec. 5,
ibid.).
!C. OBJECTION TO GRANT OF PROBATION
!The trial prosecutor shall object to the application for the grant of
!1. if theprobation in the following instances:

defendant fails to comply with any of the following criteria

for the grant of probation:
!a.the offender is in need of correctional treatment that can be
provided most effectively by his commitment to an institution;
or
!
b.there is undue risk that during the period of probation, the
offender will commit another crime; or
!
c.probation will depreciate the seriousness of the offense
committed (Sec. 8, PD 968).
!2. if there is no post-sentence investigation conducted by a
probation officer (Sec. 5, ibid.);
!3. if the applicant is one –
!a. sentenced to more than six (6) years and one (1) day;
b. convicted of an offense against the security of the state under
the Revised Penal Code, to wit:
!1. Art. 114 (Treason);
!
!154
2. Art. 115 (Conspiracy and proposal to commit treason);
!3. Art. 116. (Misprision of treason);
!4. Art. 117 (Espionage);
!5. Art. 118 (Inciting to war and disloyalty in cases of war);
!6. Art. 119 (Violation of neutrality);
!7. Art. 120 (Corresponding with hostile country);
8. Art. 121 (Flight to enemy’s country);
!9. Art. 122 (Piracy in general and mutiny on the high seas);
!10. Art.123 (Qualified privacy)
!11. RA 9165 when applicable
!c. who has been previously convicted by final judgment of an
offense punishable by imprisonment of not less than one (1)
month and one (1) day and/or a fine of not more than Two
Hundred Pesos (Php200.00).
!d. who has once been on probation under Presidential Decree No.
968 (Sec. 9, PD 968).
!D. HEARING FOR THE REVOCATION OF REPROBATION
!In case one who is placed on probation is arrested for a serious
violation of the conditions of probation and brought before
the court for a hearing of the violation charged, the
prosecutor shall represent the State in said hearing if the
revocation is contested. (Sec.15, ibid.).
!The defendant may be admitted to bail pending such hearing. In
such a case, the provisions regarding release on bail of
persons charged with a crime shall be applicable to the
defendant (Sec 15, ibid., as amended by PD 1257)
!V. PROCEDURE IN CASES INVOLVING CHILDREN
!A. INQUEST PROCEEDINGS
!1. If the Child is the Complainant
!155
!The presence of the child during the inquest proceedings shall
not be required unless his statement is found wanting in
material or substantial details and it is considered necessary
to have him further examined, in which event the inquest
prosecutor shall:
!a. give the case first priority;
!b. have the proceedings conducted as far as practicable in the
Provincial/City Prosecutor’s Office during regular office
hours;
!c. conduct the examination of the child in the presence and with
the assistance of his/her parents, guardian, custodian and/or
authorized representative;
!d. ensure against undue and sensationalized publicity, especially
where the charge involves a crime against chastity (please
refer to Appendix “H” on Guide for Media Practitioners on the
Reportage of children’s Cases on p. 316 of this Manual);
!e. see to it that a child is not subjected to any form of harassment
or undue influence from any party, particularly in cases
where the alleged offender is the child’s parents, guardian,
custodian, or one who has official, moral, social or financial
ascendancy over the child;
!f. take down the name, address, age and date of birth of the child,
as well as the name and address of the child’s parents,
guardian or custodian, and reflect the same in the record of
the case/proceedings; and
!g. not to countenance the withdrawal/dismissal of tha case in the
course of the inquest proceedings unless made with the
express conformity or consent of the child and the latter’s
parent/s, guardian, custodian or authorized representative.
In case of conflict, the child’s wish or decision shall prevail.
!2. If the Child is the Suspect – The inquest prosecutor shall
determine the age of the child on the basis of:
!A. documentary proof such as, but nt limited to, birth certificates,
baptismal certificates, school record, dental chart, etc;
!
!156
b. testimony of parent/guardian if not controverted; or,
!c. physical appearance of the child.
!If the child is fifteen (15) years of age or under, the complaint
!If theshall be dismissed immediately.

child is over fifteen (15) but under eighteen (18) years of

age, the inquest prosecutor shall determine whether or not
the former acted with discernment in committing the act
complained of and if he finds that the child did not act with
discernment, he shall:
!1. immediately prepare a written report of his findings,
recommending therein the dismissal of the case and the
immediate release of the child from custody;
!2. submit the same to the Provincial/City Prosecutor or the Chief
of the Inquest Division, as the case may be, for appropriate
action; and,
!3. pending approval/ disapproval of his recommendation, cause
the child to be placed under the custody of the DSWD or
other authorized person or entity;
!If the inquest prosecutor finds that the child acted with
discernment, he shall proceed in accordance with the rules
and procedure established by RA 9344, otherwise known as
“the Juvenile Justice and Welfare Act of 2006”.
!3. Guidelines in the Conduct of All Inquest Proceedings
!The Involving a Child:

!a. as farinquest prosecutor shall:

as practicable, conduct the proceedings in the Office of

the Provincial/City Prosecutor during regular office hours;
!b. see to it that the child is accompanied and assisted by the
parents, guardian, custodian and/or authorized
representative;
!c. ensure that the child is provided with competent legal
! assistance;
!157
d. make sure that the child is not co-mingled with adult detainees
in one and the same detention cell;
!e. take care that the child is not subjected to any form of coercion,
harassment or undue influence from any party wielding
parental, custodial, official, moral, social or financial
ascendancy over the child;
!f. in no case employ any form of deceit or false promises during
the investigation process; and,
!g. ensure the case/ proceedings against undue and
sensationalized publicity.
!The inquest prosecutor shall reflect in the record of the case/
proceedings the name, identity and address, age and date of
birth, of the child as well as the name and address of the
parent/s, guardian, custodian and/or authorized
representative.
!B. PRELIMINARY INVESTIGATIONS
!The prosecutor shall conduct a preliminary investigation only in
the following instances:
! • When the child does not qualify for diversion;
!
• When the child, the parent or guardian does not agree to
diversion;
! • When diversion is not appropriate for the child, after
considering the assessment and recommendation of the
social worker; and
! • When the child fails to comply with the terms and conditions
of the contract of diversion. (Sec. 26, chapter 2, RA 9344)
Upon serving the subpoena and the affidavit of complaint,
the prosecutor shall notify the Public Attorneys Office (PAO)
of such service as well as personal information and place of
detention of the child (Sec. 33, chapter 3, RA 9344).
!1. If the child is the victim
!The presence of the child during the preliminary investigation
shall not be required. Where it is considered necessary that
!158
 the child be summoned for clarificatory questioning, the
investigating prosecutor shall:
!a. conduct the examination of the child in the presence and with
the assistance of his/her parent/s, guardian, custodian and/
or authorized representative or social worker;
!b. ensure the case and/or the proceedings against sensationalism
and undue publicity, especially where the charge involves
the commission of a crime against chastity;
!c. see to it that the child is not subjected to any form of
harassment or undue influence from any party, particularly in
case where the offender is the parent/s guardian, or
custodian, or one who has official, moral, social or financial
ascendancy over the child; and,
!d. make sure that the name, address, age and date of birth of the
child, as well as the name and address of the parent/s,
guardian or custodian are duly reflected in the record of the
case.
!2. If the child is the respondent
! In the course of the preliminary investigation, all summons,
subpoenas and notices shall be served on or sent to the
child through the parent/s, guardian, custodians, or
authorized representative.
The presence/attendance of the child during the preliminary
investigation proceedings shall not be required unless it is
considered necessary for clarificatory questioning, in which
case, the Investigating Prosecutor shall:
!a.conduct the examination of the child in the presence of the
parent/s, guardian, custodian and/or authorized
representative or Local Social Welfare Development
Officer(LSWDO),and with the assistance of a competent
legal counsel;
!
b. see to it that the fundamental rights of the child are fully
protected and safeguarded;
!c. take care that any party wielding parental, custodial, official,
moral, social or financial ascendancy over the child does not

!159
 subject the latter to any form of coercion, harassment or
undue influence;
!d. ensure the case/ proceedings against undue and
!e. makesensationalized publicity.

sure that the name, address, age, and date of birth of the
child, as well as the name and address of the parent/s,
guardian or custodian are duly reflected in the record of the
case.
!Confidentiality of the records should always be maintained.
!C. PRODECTIVE CUSTODY OF THE CHILD
! The child shall be placed under the protective custody of the
Social Welfare and Development or other accredited NGOs
pending inquest and/or preliminary investigation
proceedings.
!D.TERMINATION OF INQUEST/PRELIMINARY INVESTIGATION
! Upon the termination of the inquest/preliminary investigation
proceedings, notice of the action taken on the case by the
inquest/preliminary investigating officer shall be given to the
child victim,the child in conflict with the law and their parent/
s, guardian, custodian or authorized representative.
!VI. PROCEDURE INVOLVING VICTIMS OF TRAFFICKING IN
PERSONS AND VIOLENCE AGAINST WOMEN AND
THEIR CHILDREN
! The procedure for conducting the inquest proceedings and
preliminary investigations prescribed in this Manual shall be
applied in cases involving trafficking in persons and violence
against women and their children. In addition, the following
performance standards for prosecution services developed
by the DOJ and the NCRFW shall be observed:
!A.PRELIMINARY INVESTIGATION
! The prosecutor shall make sure that the complainant is
informed of the rights under RA 9208 and RA 9262, the legal
procedures on preliminary investigation, the crimes charged

!160
 and the benefits under the witness protection program for
trafficking cases and victims’ compensation program.
! GUIDELINES:
! 1. The complainant is informed that she can request for a
female prosecutor or a prosecutor she is comfortable
with and if so requested, the complaint is provided with
one.
! 2. The complainant is interviewed in a gender-sensitive
manner and the terms to be used should be gender-
neutral.
!3. Examination of the victim is conducted in a gender-
sensitive manner. Prosecutors should have the following
attitudes:
!• accepting and non-judgmental
• sincere
• patient and understanding
• empathic
• committed to observing and safeguarding
confidentiality
!
4. The prosecutor should open and encouraging in asking
questions.
! 5. The interview shall done behind closed doors in a private
environment where confidentiality is assured and the
complainant’s level of comfort is considered.
!6. The prosecutor shall refer the complainant for medical and
neuropsychological examination for possible health
problems (e.g. malnutrition, STD, signs of rape, bruising,
broken bones, critical illness, post-traumatic stress
disorders).
!7. All case –related documentation are properly obtained,
!8. Thereviewed and kept confidential.

facilities used during the interview should be safe to

ensure confidentiality:
!
!161
a. A specific room is assigned for interviewing complainants and
witnesses.
!b. The interview room are secured, i.e. locked to ensure privacy.
!c. The room contains gender-neutral furnishings, comfortable
chairs, a table, and documentation equipment such as a
computer, a recorder or a typewriter.
!9. The prosecutor shall not allow the media to gain access to any
information regarding the victim/ survivor. (An adult victim,
however, may choose to speak with the media, preferably
with the assistance of her counsel.) The prosecutor does not
disclose the name and personal circumstances of both
parties or any other information that might reveal their
identity to the media or the public, or take any action that
might compromise their privacy.
!10. The prosecutor shall conduct the interview in a language
understood by the complainant, with sensitivity to the ordeal
she is facing, and employ creative tools for investigation.
!11. The prosecutor should be capable of determining whether or
not the complainant needs other support services for the
investigation or litigation of the case.
!12. A trained counselor/social worker should be present during
the interviews, if available, to support the victims/survivor.
!13. The preliminary investigation should be terminated and
resolved in the earliest possible time.
!14. The complainant should be notified of the results of the case.
!B.EVIDENCE GATHERED/BUILT-UP BY THE LAW ENFORCER;
! TheNEED TO CHECK

prosecutor, as far as practicable, should check the conduct

of the surveillance needed to support the filling of a case
(police/NBI agencies/investigations conduct the necessary
surveillance for sex trafficking cases.e.g.in massage parlors,
bar strips, modeling studios, escort services).
!C.PROSECUTOR GUIDELINES
1. The “Speedy Trial Act” should be strictly observed.
!162
!2. The Rules on Examination of Child Witnesses should be
applied in handling VAWC and trafficking cases involving
children.(please refer to the Manual for Prosecutor on
Handling Child-Related Cases).
!3. As far as practicable, the trial of the case should be handled by
one and the same prosecutor.
!4. Confidentiality
!5. The complainantof should
the trial should be maintained.

be accompanied by or referred to a
trained counselor/social worker in the course of the trial, if
necessary.
!VII. PROCEDURE FOR THE FILING OF A PETITION FOR
CERTIORARI THROUGH THE OFFICE OF THE CHIEF
STATE PROSECUTOR
!A.WHEN TO FILE A PETITION FOR CERTIORARI
!1. The court issued an adverse ruling without or in excess of
jurisdiction or without grave abuse of discretion amounting to
lack or excess of jurisdiction.
!2. There is no appeal or any plain speedy or adequate remedy in
the ordinary course of law.
!B.COVERAGE
! Only petitions for certiorari under Rule 65 of the Revised Rules
of Court which are to be filed before the Supreme Court or
the Court of Appeals may be acted upon by the Office of the
Chief State Prosecutor.
!C.PERIOD TO FILE PETITION
! The petition shall be filed with the Supreme Court or the Court
of Appeals not later than sixty (60) days from notice of the
judgment order/resolution. In case a motion for
reconsideration or new trial is timely filed, whether such
motion is required or not, the sixty (60) day period shall be
counted from notice of the denial of said motions.
!D. ACTION TO BE TAKEN BY THE TRIAL PROSECUTOR
!163
!1. Draft a petition clearly stating the facts of the case, and the law
and jurisprudence applicable in support thereof. The petition
shall contain a verified statement of the date when notice of
the judgment, order or resolution subject thereof was
received, when a motion for reconsideration, if any, was filed
and when notice of the denial thereof was received. Legible
duplicate original or certified true copy of the decision,
judgment or resolution or order subject of the petition for
certiorari must be attached to the draft.
The certified true copy must be accompanied by a
certification accomplished by the proper clerk of court or by
his duly authorized representative or by the proper officer of
the court, tribunal, board commission or office involved, or by
his duly authorized representative.
! NOTE: Certification by the parties themselves, their counsel,
or any other person shall not be allowed.
! NOTE: Photocopies, not originally certified, of the alleged
certified true copies of the decision of the trial court are not
sufficient compliance.
!Certification under oath must be appended to the draft petition
stating that the requesting prosecutor has not commenced
any other action or proceeding involving the same issued in
the Supreme Court, the Court of Appeals, or any other
tribunal or agency.
!As far as practicable, a copy of the transcript of stenographic
notes (TSN), case record, trial brief outlining proceedings of
case, documentary evidence certified copies of decision to
be elevated.
!2. Forward the draft petition to the office of the Chief State
Prosecutor for evaluation within fifteen (15) days from receipt
of the assailed decision or order/judgment, with a request
that the same be endorsed to the Office of the Solicitor
General.

E. ATION OF THE CHIEF STATE PROSECUTOR

!1. If the prosecutor finds no merit in the request to file a petition for
certiorari, he denies the request and informs the head of
office of the requesting trial prosecutor of such denial.
!164
!2. If he finds merit in the petition, he shall endorse the draft
petition together with the attachments within ten (10) days
from receipt of the draft petition, to the Office of the Solicitor
General for appropriate action.
!VIII. HANDLING OF ENVIRONMENTAL CASES
!A. REVISED FORESTRY COD (PD 705)
!1. EVIDENCE REQUIRED
!a. For the first and second modes of violation of Sec. 77 (Cutting,
gathering and/or collecting timber or other forest products
without license), the following pieces of evidence are crucial:
! • Affidavit of the apprehending officer;
!• Proof that the accused failed to show cutting license or permit
when apprehended and asked to present the authority to cut;
!• Survey of area using Land Classification maps as reference to
show whether the prohibited act was done inside forest land,
alienable or disposable land or private land (Close traverse
duly conducted by a CENRO Survey Officer);
!• The logs, timber, flitches or lumber that were apprehended;
!• Conveyance, equipment, machineries, implements or tools, if
any;
!• Identity and affidavit of apprehended violators.
!
b. For violation of Sec. 78 (Unlawful occupation or destruction of
forest lands and grazing lands):
!• Proof of failure to present license agreement, lease, license or
permit to enter and occupy forest land or grazing lands when
accosted;
!• Affidavit of the investigating forest officer;
!• Survey maps of area occupied and destroyed using Land
Classification map or reference to prove that the area is
inside forest land or grazing land;
!165
 !• Inventory and tally sheet, stand and stock table of timber or
forest products destroyed and the corresponding forest
charges to be used as basis in imposing penalty;
!• Damaged forest land due to indiscriminate setting on fire of
forest land by the violator;
!• Damaged grazing land due to indiscriminate cutting of trees
and other vegetation by the violator;
!• Damaged forest land due to indiscriminate setting on fire of
!Thegrazing land by the violator;

following documents are likewise useful:

!• Proof of failure to present license agreement, lease, license or
permit to occupy grazing land when apprehended;
!• Proof that the violator introduced within occupied areas
domestic plants other than natural vegetation or trees or
other vegetation;
!• Possession by the violator at the time of the apprehension of
instruments, equipment, equipment and tools such as power
saws, hand saws, bolos and digging tools such as shovels,
group hoes, rakes, etc.;
!• Fallen trees, logs, lumber, flitches and other woody parts of
damaged vegetation; and
!• Construction of shelter of light materials within the area or site

!c. Forofviolation
occupation or kaingin.

of Sec. 80 (Pasturing livestock), the following are

required:
! • Investigation report of the forest officer showing failure of the
accused to present authority to graze livestock;
!• Survey
!• Inventorymapof livestock
of the area utilized for unauthorized grazing;

grazed.
!
!166
d. For violation of Sec. 82 (Survey by unauthorized persons), the
following are important:
! • Implements and instruments used in the survey of the area
involved;
!• Survey report and sketch plan of the surveyed area by the
investigating officer;
!• Land Classification Map showing that the area is classified as
!e. Forforest land

violation of Sec. 88 (Sale of Wood Products), the following

are important:
! • The logs, lumber or forest products subject of the sale;
• Scale report;
• Sales Invoice
!
2. POINTERS
!It is suggested that the confiscated forest/wood products under
court litigation should be allowed for disposal to save their
economic value. Conformably, a motion should be made with
the court for an appropriate ruling such that the confiscated
forest/wood products be sold as soon as their presentation
as evidence is completed. The proceeds thereof will be
deposited/held in escrow for collection by the prevailing
party.
!For repeat violators of Sec. 77 (Cutting, gathering and/or
collecting timber or other forest products without license),
such fact should be alleged as an aggravating circumstance
in the information considering that penalties for such
violation are those provided for under Articles 309 and 310 of
the Revised Penal Code. Thus, applying Article 10 of the
Revised Penal Code and the ruling of the Supreme Court in
PP vs. Martin S. Simon (GR No. 93028, July 29, 1994; 234
SCRA 555), such circumstance of recidivism or reiteracion
should be alleged.
!The prosecutor should also consider the outcome of the
administrative adjudication proceedings for violation of Sec.
77 in determining probable cause. The prosecutor may

!167
 request for additional evidence obtained during
administrative adjudication proceedings.
!B. TOXIC SUBSTANCES ANDHAZARDOUS WASTE ACT
(RA6969)
!1. EVIDENCE REQUIRED
a. Important piece of evidence – Waste Transport Record (DAO
No. 2004-36) with:
! • Generator information (includes the classification and quantity
of each hazardous waste, methods of treating hazardous
waste, method of treating hazardous waste special
instruction)
!
• Transport information (information about the common carrier)
!
• Results of sampling (Laboratory Analyses) signed by chemists
from the DENR-EMB or DENR-accredited laboratories.
!
• Report on the inspection and monitoring of premises prepared
by the proper authorities (EMB-Regional Office and signed
by the Regional Director).
!
C. PEOPLE’S SMALL SCALE MINING ACT (RA 7076)
!1. EVIDENCE REQUIRED
Technical or office generated reports, testimonial evidence of the
concerned office personnel, and pertinent testimonies of
other persons in the community, as sufficient bases for the
finding of probable cause for the purpose of filing and
prosecuting the case even in the absence (usually
intentional) of the accused.
!D. PHILIPPINE MINING ACT (RA 7942)
!1. EVIDENCE REQUIRED
!a. For violation of Sec. 103 (Theft of Minerals), the following
documents should be attached to the complaint:
! • Sworn statement of the apprehending/arresting officer (MGB
Form No. 12-2);
!
!168
! • Affidavits of witnesses, if any (MGB Form No. 12-3);
•

! • Copy of the seizure receipt;

Photographs showing the minerals/mineral product seized

including the tools, equipment and conveyance used in the
commission of the offense; and
• Other supporting papers/evidence as the court may require.
!
2. POINTERS
!a. For violation of Sec.102 (Illegal Exploration), it should be made
clear that the “consent” of officials of the local government
unit, particularly the barangay captains and mayors, and
tribal chieftains is not a defense.
!b. Claim owners or MPSA holders found to have extracted
minerals outside their mining areas should be charged with
violation of Sec. 110 (Other Violations) instead of Sec. 103
(Theft of Minerals) since they should not be treated similarly
with those who have no contract or permit at all.
!c. Documents purporting to be business permits attached as
annexes to counter-affidavits should not be given any weight
in the determination of whether or not the respondent has
valid mining permits.
!d. Investigation reports prepared by the Regional Office of the
MGB should be accorded greater significance as these enjoy
the presumption of regularity.
!1. Secs.104 (Destruction of Mining Structures), 105 (Mines Arson)
and 106 (Willful Damage to a mine) would be applicable if
the motive for the commission of the prohibited acts is plain
extortion. If perpetrated by insurgent groups in furtherance of
their goal to overthrow or destabilize the government, then
rebellion or sedition, as the case maybe, would be the more
appropriate charge. Also, if all the three offenses are
committed in a single occasion, Sec. 105 should absorb the
acts described in the two other Sections.
!2. Sec. 110 (Other Violations) should include violations of the
following provisions of the Mining Act: Secs.54 (Mineral
Trading Registration); 55(/mineral Processing Permit), 64
(Mine Labor); 65(Mine Supervision); and 74 (Right to
!169
 Possess Explosives). Additionally, violations of certain
provisions of the ULIRR of the Mining Act (DAO No. 96-40,
as amended), particularly Secs.172 and 179, refer to the
penal provisions of the Mining Act.
!E. CLEAN AIR ACT (RA 8749)
!1. POINTER
!It should be noted that an order from the Pollution Adjudication
Board (PAB) directing the filling of a criminal case is a
condition precedent.
!F. ECOLOGICAL SOLID WASTE MANAGEMENT ACT (RA
9003)
!1. POINTER
!The applicable procedures in criminal prosecution for violation of
RA 9003 is Rule XIX (Administrative and Enforcement
Procedures) of DAO No. 2001-34 (IRR of RA 9003).
!G. WILDLIFE CONSERVATION AND PROTECTION ACT (RA
9147)
!1. EVIDENCE REQUIRED
!a. Useful pieces of evidence in the prosecution of violators of

! • Certificate from the DENRtheorkilling

Sec. 27, particularly of wildlife:

Protected Areas and Wildlife

Bureau (PAWB) that the animal is a wildlife; and
!
• Necropsy report from a veterinarian.
!
b. On inflicting injury:
! • Certification from the DENR or PAWB that the animal is a
wildlife; and
!
• Certification from a licensed veterinarian that the concerned
wildlife, after the infliction of the injury, is no longer
capable to utilize its reproductive system.
!
c. Dumping of waste products detrimental to wildlife:
!170
! • Certification from a licensed veterinarian that the dumped
waste products are detrimental to the life of the wildlife
found or living in the area; and
!
• Certification from the DENR that the place where the wastes
were dumped is a critical habitat in accordance with the
NIPAS Act, or designated as such in accordance with Sec.
25 of RA 9147.
!
d. Trading of wildlife:
! • Certification from the DENR as to the classification of the
concerned wildlife; and
!
• Certification from the DENR that no permit was given to
violator for the concerned activity.
!
e. Transporting of wildlife:
!
• Certification from the DENR as to the classification of the
concerned wildlife; and
!
• Certification from the DENR that no corresponding permit
was given to the violator for the concerned activity.
!
f. Maltreating and/or inflicting other injuries not covered by the

! • preceding paragraph:

Certification from the DEBR as to the classification of the

concerned wildlife; and
!
• Affidavit of a witness who saw the act of maltreatment or
inflicting injury to the wildlife.
!
g. Squatting or otherwise occupying any portion of the critical
habitat:
!• Certification from the DENR or PAWB that the place where the
concerned act is done is within a critical habitat in
accordance with RA 7586 or the NIPAS Act or designated as
such in accordance with Sec. 23 of RA 9147.
!
h. Mineral exploration and/or extraction, burning, logging, and
quarrying:
!171
!• Certification from the DENR or PAWB that the place where the
concerned act is done is within a critical habitat in
accordance with RA 7586 or the NIPAS Act or designated as
such in accordance with Sec. 23 of RA 9147.
!
i. Introduction, re-introduction, or re-stocking of wildlife
resources:
!• Certification from the DENR that no permit was given to the
violator for the concerned activity.
!
j. Collecting, hunting, or possessing wildlife, their by-products
and derivatives:
• Certification from the DENR as to the classification of the
concerned wildlife; and
!
• Certification from DENR that no permit was given to the violator
for the concerned activity.
!k. Gathering or destroying of active nests, nest trees, host plants,
and the like:
!• Certification from DENR as to the classification of the concerned
wildlife; and
!
• Certification from the DENR that no permit was given to the
violator for the concerned activity.
!H. CHAINSAW
! 1. EVIDENCEACTREQUIRED (RA 9175)

! a. To establish the offense of selling, purchasing, re-selling,

transferring, distributing or possessing a chain saw
without a proper permit.
!• Chain saw;
!
• Deed of Sale, Sales Invoice, Official Receipt, Deed of

!• InvalidAssignment, and other pertinent documents;

!• Affidavitorofexpired Certificate of Registration;

the apprehending/ investigating officer.

!172
 !
b. To establish the offense of unlawful importation or
manufacturing of chain saw:
!• Chain saw
!
• Import documents
!• Certification from the DENR Registering Office that the importer
or manufacturer has no permit;
!• Affidavit
!• Prosecutorof apprehending/ investigating officer.

should be made aware that there is also an

administrative adjudication aspect, following DAO No. 97-32
!I. CLEAN WATER ACT (RA 9275)
!1. EVIDENCE REQUIRED
!a. Results of laboratory analysis of samples collected (a)
analyzed within the period described in order to protect the
integrity of the findings; and (b) duly signed by the analyst
and the head of the laboratory division.
!b. In cases involving the commission of the prohibited acts under
Sec. 27, the complaint-affidavit should be accompanied by
the following documents.
!• Affidavit of witness as to the commission of the prohibited act;
!
• Affidavit containing the admission made, if any, by the person

!• Proofcomplained of;

of service of Notices of Violation (NOVs) and/or Invitations

for Technical Conference; and
!• Photographs and other documents that would establish the
accuracy and veracity of the statements made in the report.
!2. POINTERS
!a.It should be noted that an order from the Pollution Adjudication
Board (PAB) directing the filing of a criminal case is a
condition precedent.
!173
 !
b.Results of sampling (Laboratory Analyses) must be signed by
chemists from the DENR-EMB or DENR-accredited
laboratories.
c.There must also be a report on the inspection and monitoring of
premises prepared by the proper authorities (EMB-Regional
Office, signed by the Regional Director).
!
d.RA 9275 lacks provisions on the issuance of seizure receipts,
particularly on subject vessels containing hazardous/
industrial wastes and other pollutants, which are caught in
flagrante delicto and in the normal course of procedure. Also,
there is no particular storage facility for the said wastes and
other pollutants while in custodial legis.
!
IX. PROSECUTION OF MONEY LAUNDERING CASES
!A. GENERAL RULES
!1. Any proceeding relating to money laundering and the unlawful
activity shall be given precedence over the prosecution of an
offense or violation under the Anti-Money Laundering Act
(AMLA) (RA 9160, as amended by RA 9194) without
prejudice to the application ex-parte by the Anti-Money
Laundering Council (AMLC) to the Court of Appeals for a
freeze order with respect to the monetary instrument or
property involved therein and resort to other remedies
provided under the AMLA, the Rules of Court and other
pertinent laws and Rules.
!
2. Trial for the money laundering offense shall proceed in
accordance with the Revised Rules on Criminal Procedure.
!3. Knowledge of the offender that any monetary instrument or
property represents, involves or relates to the proceeds of an
unlawful activity or that any monetary instrument or property
is required and may be established by direct evidence or
inferred from the attendant circumstances.
!B. DUTIES OF THE PROSECUTOR
!1. Upon receipt of the complaint filed by the AMLC pursuant to
Sec. 7 (4) of the AMLA, the prosecutor shall conduct the
requisite preliminary investigation;
!
!174
 2. When there is a finding of probable cause to engender a well-
founded belief that a money laundering offense has been
committed, recommend for the filling of information before
the Regional Trial Court;
!3. Once the filing of an information in court has been approved
by the head of office, prepare for the trial for the money
laundering offense in close coordination with the AMLC
official who file the complaint.
!4. During the trial of the case, prove by evidence beyond
reasonable doubt all elements of every money laundering
offense under Sec. 4 of the AMLA, including the element of
knowledge that the monetary instrument or property
represents, involves or relates to the proceeds of any
unlawful activity. (Rule 6.6. of the Revised Implementing
Rules and Regulations of RA 9160 as amended by RA
9194)
!No element of the unlawful activity, however, including the
identity of the perpetrators and the details of the actual
commission of the unlawful activity, need be established by
proof beyond reasonable doubt since the elements of the
offense of money laundering are separate and distinct from
the elements of the felony or offense constituting the
unlawful activity. (Rule 6.7, ibid.).
!SPECIAL SECTION ON PROSECUTING HUMAN RIGHTS
VIOLATIONS AND PROVIDING AVAILABLE REMEDIES
THEREOF
!I. IN GENERAL
! A. STRUCTURE
!This special section on human rights will start by representing a
summative checklist o guide a public prosecutor in dealing
with cases of human rights violations – what the requisites
are for their successful prosecution and the alternative or
cumulative legal remedies that can be availed of.
!The first part of this section will identify the particular human
rights violation in focus, then proceed to outline how the
Public Prosecutor can deal with it using available remedies
in substantive and procedural criminal law.
!175
!The second part of this section will identify generic remedies
available under substantive law that may resorted to and
employed in the process of seeking redress to human rights
violations. However, since these provisions are few and
perform only a largely compensatory function, we have to
turn to the larger field of substantive and procedural criminal
law to be able to fully address the consequences of the
violation and provide the victim with the full coterie of
remedies designed to vindicate the rights violated.
!B. SUMMATIVE CHECKLIST
!1. STEP ONE. How do you know that a human rights violation
has been committed?
!a. LOOK AT THE LEGAL BASES. The enumeration of civil and
political rights and liberties can be found in the Constitution’s
Bill of Rights and the Civil Code’s Article 32.
! • If the violator is an agent of the State, then the Bill of Rights is
more applicaple, because the limitations set forth therein are
addressed to the exercise of governmental powers and
prerogatives.
!
• For private parties violating human rights, Article 32 will be
more appropriate.
!
b. LOOK AT THE CIRCUMSTANCES OF THE CASE. One of the
more basic characteristic of human rights is that they are
such fundamental character that anyone can readily
acknowledge their inherence in every human person; as
such, anyone can also readily recognize when a violation
thereof has been committed. Some of the defining
characters of human rights violations are:
!• They involve a wanton violation of the integrity of the human
person’s body.
!For example, physical injuries inflicted on a person are
undoubtedly on a lower plane compared to acts of torture
where the intent to inflict pain is supplanted by the intent to
cause intense physical suffering, trauma, and agony beyond
the limits of human tolerance. Anyone can readily recognize
the difference in the quality of evil that impels a person who
!176
 merely intends to injure and a person who takes advantage
of the fragility and limits of what the human body can take in
order to totally subdue the will of another.
!• They involve an infliction of intense psychological anguish,
emotional suffering, and moral helplessness.
!
For example, families of victims of enforced disappearance had to
contend with the lifelong agony of not knowing what became
of their loved ones, and not even having the opportunity to
give them a decent burial. This kind of suffering adds an
entirely new layer of evil to what would otherwise be a plain
case of deprivation of life and liberty. Deliberately withholding
information regarding the whereabouts of a person
involuntarily disappeared makes the loss of a loved one
assume an entirely different dimension.
!• They deviate from universally-accepted minimum standards of
!Societytreatment of every human person.

may be divided in the issue of the imposition of the death

penalty in the criminal justice system, but everyone will
agree that nobody deserves to die in an excruciatingly
painful manner; and the relatives of the dead should have
the opportunity to bury their dead with dignity. When a
wrongful act deprives a human person of what is due him/
her according to the minimum standards inherently ingrained
in everyone’s sense of humanity, then there is an assult
against fundamental human rights.
!2. STEP TWO. How do you prove that there has been a human
rights violation?
!• Medico-legal reports (for physical trauma)
!
• Autopsy reports (fro cause of death and internal/external
injuries sustained immediately prior to, or contemporaneous
with, the point of death)
!• Psychiatric and psychological evaluations (for mental,
emotional, and psychological trauma on the part of the victim
and his/her relatives)
!
!177
• Affidavits of witnesses (focusing on the circumstances that
would qualify an act as a human rights violation, as
discussed above)
!
3. STEP THREE. What do you do about it? Determine whether
–
!a. THE HUMAN RIGHTS VIOLATION IS CONTINUALLY BEING
! • InPERPRTRATED. For example:

the case of a person involuntarily disappeared and whose

fate and whereabouts are still unknown; or
!
• In the case of a person whose life or liberty is under threat by
reason of his/her political beliefs; or
!
!
• In the case of a person currently under the custody of State
authorities under circumstances that would warrant a well-
engendered fear of his/her being subjected to tortuer or
other forms of suffering.
!
• In these cases, the urgent need is to gather information
regarding the condition or whereabouts of the person, so
that the appropriate remedy can availed of:
! • Avail of the right of visitation of, and conference with, counsel
that is granted to every detainee or person under custodial
investigation. Torture or other forms of persecution can
speedily be discovered and addressed through this means.
!
• Utilize inquest proceedings so that violations of human rights
can already be disclosed early on.
! • Bring to the attention of the court actual knowledge, or well-
founded suspicion of torture or other forms of human rights
violations. The courts, under Administrative Matter No. MTJ
90-4001 have the positive duty to “proceed with caution”
during trial whenever allegations of violations of the
fundamental rights of the accused are brought to their
attention.
!
!178
 • Gather information through the usual channels of inquiry,
taking into account whether or not information being sought
is:
!1. open to the public access, or
2. privileged, or
3. withheld from the public by reason of national security, etc.
! • If this fails, or if information leading to the location of a person
or ascertainment of his/her condition is privileged or
classified, then avail of the Writ of Habeas Data, mindful of
the satisfaction of the requisites regarding:
!
1. proper parties,
2. required allegations, and
3. remedies prayed for
!If information-gathering discloses the whereabouts of a person, or
if such is already known at the outset, or if the source of the
threat to one’s life or liberty has been clearly determined,
then an aggrieved part can:
! • Compel officials having custody of the person to bring such
person to court so that his/her condition can be examined
and his/her detention can be justified through a Writ of
Habeas Corpus
!
• Compel the State to extend such protection as may be
adequate to safeguard his/her rights through a Writ of
Amparo
!
b. THE HUMAN RIGHTS VIOLATION HAS ALREADY BEEN
PERPETRATED.
!For example:
!• In the case of a person who has already been subjected to
torture; or
!
• In the case of a person who was involuntarily disappeared and
subsequently found to have been killed through “salvaging”;
or
!• In the case of persons who were forced to leave their homes en
masse through intimidation and violence
!179
 !
In these cases, the paramount remedy is to seek redress for the
violation that has already been committed. This can be done
through:
!• REMEDIES THAT EXPRESSLY RECOGNIZE HUMAN RIGHTS
VIOLATIONS. Although there are only few legal remedies
that specifically tackle and address human rights violation,
they are nonetheless effective because they directly
acknowledge the existence of a wrongful act that may be
classified as a human rights violation. The primary objective
of these measures is indemnification for the resulting
damages arising from the violation. These are:
!1.Action for damages under Article 32 0f the Civil Code
!
2.Claims under the Victim Compensation Act
!3.In cases of torture or death of a suspected terrorist, an action for
criminal liability of a State official having custody over the
suspected terrorist under Sec. 25 of the Human Security Act
!• REMEDIES THAT INDIRECTLY RECOGNIZE HUMAN RIGHTS
VIOLATIONS. These are ordinary criminal actions involving
felonies that may be considered the closest equivalents of
the human rights violations discussed in this Manual. These
human rights violations – torture, enforced disappearance,
extralegal killings and involuntary displacement – are yet to
be legislated as felonies or crimes in themselves. However,
this does not mean that these violations cannot be
prosecuted; they can and should be prosecuted, only they
have to be couched in existing criminal law terms, provided
all their elements are obtaining.
!For example:
!1. The component felonies that may be equated to torture like
maltreatment of prisoners, serious physical injuries,
administration of injurious substance, mutilation, etc.
!2. Equivalent felonies to enforced disappearance like arbitrary
detention and kidnapping
!3. Felonies parallel to involuntary displacement like grave coercion
and expulsion
!180
!4. STEP FOUR. Is there a way forward
!a. MAKE HUMAN RIGHTS VIOLATIONS AKIN TO
AGGARAVATING CIRCUMSTANCES. The perpetration of
felonies in a manner that qualifies them to human rights
violations is an act that deserves condemnation. The
proposition that perpetrators of such acts must be subjected
to graver penalties finds intuitive validity in the
consciousness of well-meaning individuals. However, penal
laws do not operate in that manner. Laws must be enacted
to punish particular crimes, impose heavier penalties, or add
to the exclusive list of aggravating circumstances in the
Revised Penal Code; without them, there will be a violation
of due process. This will not preclude, however, the
commencement of the practice among prosecutors and
where human rights violations are recognized at the outset,
acknowledge accordingly in the Information, and equated
when possible to existing aggravating circumstances.
!For example:
!• Nocturnal abductions (during which impunity is more or less
secure) preparatory to enforced disappearances can be
considered aggravated by “nocturnity”.
!
• Involuntary displacements undertaken during the height of armed
conflict or hostilities can be considered aggravated when
“committed on the occasion of a calamity or misfortune”.
!• “Liquidations” and other “salvagings” on account of political
persecution, which often lead to extralegal killings, should be
considered clearly as products of “evident premeditation”
because the plan and mode of such attacks are almost
always contemplated ahead of time.
!• If torture is conducted with the victim’s hands and feet tied (or
where the victim is physically restrained in any manner), or
where the victim was forcibly drugged, and if such torture is
conducted by numerous people in succession or
simultaneously, would aggravate the felony by “taking
advantage of superior strength” and “with” means employed
to weaken the defense”.
!
!181
• The prevalent practice of “salvagings” conducted in a swift
manner, under circumstances where the victim will be caught
unaware and unable to defend him/heself, is evidentiary of
“alevosia”.
!• Murder involving physical and psychological torture (e.g., forcing
the victim to ingest human excreta, torturing the victim while
naked, electrocution of the genitalia) can rightfully be
classified as aggravated by “ignominy” and/ or “cruelty”.
!
The ideal, of course, is for “violation of human rights” to somehow
find its way to the exclusive list of aggravating circumstances
in the Revised Penal Code. However, while such proposition
still awaits legislative adoption, it has been shown that there
are ways by which the prosecutor can interject human rights
violations in the consideration of the nature of the felony and
the gravity of the imposable penalty.
!b. THE FACT THAT HUMAN RIGHTS VIOLATIONS HAVE BEEN
COMMITTED SHOULD BE REFLECTED IN THE
INFORMATION. An Information that is complete and correct
in substance and in form will not be invalidated simply
because it supplied other Information apart from that usually
seen such processes. It is a vindication of human rights
violations where they are acknowledge and recognized in
the Information, for then the courts can be better apprised of
the exact quality of evil that attended the commission of the
felony, beyond its essential elements.
!Consider the following:
!“That on or about 8 day of April, 2008, in the Municipality of
th

Donsol, Sorsogon, Philippines, and within the jurisdiction of

this Honorable Court, the said defendants JOSEFO
MERCADO and DEIMOS PERICLES, and CRISPULO
JUAN DE DIOS, conspiring, confederating and mutually
aiding each other, did then and there willfully, unlawfully and
feloniously tortured and killed VICENTE TONGOL through
infliction of severe blows by a blunt object to the head,
electrocution of the genitals, tearing off of the fingernails, and
drowning, with treachery, known premeditation, abuse of
superior strength , and means employed to weaken the
defense, and as a result thereof, said VICENTE TONGOL
slowly suffered intense physical and psychological trauma
until his death.
!182
!“CONTRARY TO LAW.
“Donsol, Sorsogon, Philippines, April 8, 2008.”
!While the above Information recites all the essential elements of
murder, it also went further to allege other facts that clearly
paint the accurate picture of the felony – that is, through the
violation of the fundamental human right not to be subjected
to torture and other cruel, inhuman, and degrading
treatment. In those cases where the judge is given enough
latitude to pronounce the proper penalty to be imposed (as in
the case of the application of the Indeterminate Sentence
Law), these facts can and should be given adequate
consideration.
!II. PROSECUTING CASES OF TORTURE
! A. BACKGROUND
Definition
!Torture is defined in Black’s Law Dictionary as the “Infliction of
intense pain to body or mind for purposes of punishment, or
to extract a confession or information, or for sadistic
pleasure.” Torture when committed, represents a direct and
blatant violation of a person’s human right not to be
subjected to cruel, inhuman, or degrading punishment, as
well as to any physical or psychological means that vitiate
the free will. These human rights are enshrined in the Bill of
rights (Art. III, Sec. 12, pars. 2,3 and 4; Art. III, Sec. 19, pars.
1 and 2).
!B. DEALING WITH TORTURE UNDER SUBSTANTIVE LAW
!1. Unconstitutionality
The first thing that a prosecutor must bear in mind is that torture
is unconstitutional. Article III, Sec. 12 (2), of the 1987
Constitution provides that “no torture, force, violence, threat,
intimidation, or any other means, which vitiate the free will
shall be used against [a person under investigation]. Secret
detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.
!Also, Article II, Sec. 19, of the 1987 Constitutional provides that
“the employment of physical, psychological, or degrading
punishment against any prisoner or detainee or the use of
!183
 substandard or inadequate penal facilities” under subhuman
conditions shall be dealt with by the law.”
!It being unconstitutional, cases of torture are of overriding and
compelling significance and the State, acting through its
agents, more particularly the prosecutor, has an interest in
seeing to it that allegations of torture are verified as early as
possible.
!2. Direct criminal prosectution for Maltreatment of Prisoners
!a. Legal(Article
basis.
235, Revised Penal Code)

Under the Revised Penal Code, the prosecutor may proceed

against perpetrators of torture directly. The most parallel
provision related to torture is Maltreatment of Prisoners. A
victim, if tortured wile under custody of public officers as a
prisoner, can file a criminal action under Article 235, which
punishes a public officer who maltreats a prisoner either for
the purpose or extracting a confession or who oversteps the
bounds of his/her custody either by inflicting punishments
not prescribed by regulations or by inflicting prescribed
punishments but in a cruel or humiliating matter. For cases
of torture committed against persons under investigation,
this is the most direct remedy.
!b. Elements of the felony.
!1. Offender is a public officer or employee
!2. He has under his charge a prisoner or detention prisoner
!3. He maltreats such prisoner in either of the following manners:
! • By overdoing himself in the correction of a prisoner or
detention prisoner under his charge, or
!
• By overdoing himself in the handling of a prisoner or detention
prisoner under his charge, through:
!
o The imposition of punishment not authorized by the
regulations;
!
o The inflictions of punishments authorized by the
regulations in a cruel and humiliating manner;
!184
! o The maltreatment of such prisoners to extort a confession
or to obtain some information from the prisoner.
!
3. Separate and simultaneous criminal actions.
!If the victim of torture is not a prisoner or where the alleged
perpetrators are identified (in which case their status as
public officials cannot be established),then torture can be
proceeded against on a piecemeal basis. All the acts
constituting torture and all acts committed in the course of
the act of torture can be prosecuted simultaneously. Based
on common experience, torture oftentimes involves the
infliction of physical and psychological suffering on the victim
through various acts designed to break the victim’s will and
spirit so that he/she would accede to the demands of the
torturers. As such, torture can be prosecuted by filing any or
all of the following actions, provided the following requisite
elements have cocurred:
!a. Mutilation (Art. 262, Revised Penal Code)
!1. Intentionally mutilating another by depriving him, either totally or
!• Therepartially, of some essential organ for reproduction; i.e.,:

be a castration of organs necessary for generation, such

as the penis or ovarium; and
!
• The mutilation is caused purposely and deliberately, that is, to
deprive the offended party of some essential organ for
reproduction; or
!2. Intentionally making other mutilation, that is, by lopping or
clipping off any part of the body of the offended party, other
than the essential organ for reproduction, to deprive him of
that part of his body.
!b. Serious, Less Serious, or Slight Physical Injuries (Art. 263, 265,
and 266, Revised Penal Code)
!1. Serious
!• CommittedPhysical Injuries.

by wounding; by beating; by assaulting; or by

administering injurious substance.
!
!185
• The injured person suffered any of the following:
!oBecome insane, imbecile, impotent or blind in consequence of
the physical injuries inflicted;
o Loses the use of speech or the power to hear or to smell, or
loses an eye, a hand, a foot, an arm, or a leg; loses the use
of any such member; or becomes incapacitated for the work
in which he was theretofore habitually engaged, in
consequence of the physical injuries inflicted;
!
o Becomes deformed; or loses any other member of his body;
loses the use thereof; or becomes ill or incapacitated for the
performance of the work in which he was habitually engaged
for more than 90 days in consequence of the physical
injuries inflicted;
!oBecomes ill or incapacitated for labor for more than 30 days (but
must not be more than 90 days), as a result of the physical
injuries inflicted.
!2. Less Serious Physical Injuries.
!• Committed by wounding; by beating; by assaulting; or by
administering injurious substance.
!
• Offended party is incapacitated for labor for 10 days or more (but
not more than 30 days), or deeds medical attendance for the
same period of time;
!• The physical injuries must not be the same as those suffered
under Serious Physical Injuries
!3. Slight Physical Injuries
!• Committed by wounding; by beating; by assaulting; or by
administering injurious substance
!
• Suffered any of the following:
!oIncapacitated the offended party for labor from one to nine days,
or required medical attendance during the same period;
!
o Any injury that is not serious enough to prevent the offended
party from engaging in his habitual work or require medical
assistance;
!186
!oIll-treatment of another by deed without causing any injury.
!c. Administering Injurious Substances or Beverages (Art. 264,
Revised Penal Code)
!1. Offender inflicted upon another any serious physical injury;
2. It was done by knowingly administering to him any injurious
substance or beverages or by taking advantage of his
weakness of mind or credulity;
!3. He had no intent to kill.
!d. Rape (Art. 266, Revised Penal Code)
!1. Rape by carnal knowledge
!• Offender is a man;
!
• Offender had carnal knowledge of a woman;
!• Such act is accomplished under any of the following
circumstances;
!oBy using force or intimidation;
!
o When a woman is deprived of reason or otherwise unconscious;
!oBy means of fraudulent machination or grave abuse of authority;
!oWhenor the woman is under 12 years of age or demented.
!2. Object rape
!• Offender commits an act of sexual assault;
!
• The act of sexual assault is committed by any of the following
means:
!oBy inserting his penis into another person’s mouth or anal orifice;
or
!
o By inserting any instrument or object into the genital or anal
orifice of another person;
!187
!• The act of sexual assault is accomplished under any of the
following circumstances:
!
o By using force or intimidation; or
!
o When the victim is deprived of reasons or otherwise
unconscious; or
!oBy means of fraudulent machination or grave abuse of authority;
or
!oWhen the woman is under 12 years of age or demented.
!e. Act of Lasciviousness (Art. 336, Revised Penal Code)
!1. That the offender commits any act of lasciviousness or
!2. Thatlewdness.the act of lasciviousness is committed against a person of
either sex;
!3. That it is done under any of the following circumstances:
!• By using force or intimidation; or
!
• When the offended party is deprived of reasons or otherwise
unconscious;
!• By means of fraudulent machination or grave abuse of authority;
or
!• When the woman is under 12 years of age or demented.
!f. Kidnapping and Illegal Detention
! 1. Kidnapping and Serious Illegal Detention (Art.267, Revised
Penal Code)
!• Offender is a private individual;
!
• He kidnaps or detains another, or in any other manner deprives

!• The the latter of his liberty;

act of detention or kidnapping must be illegal;

!188
!• In the commission of the offense, any of the following
circumstances is present:

o The kidnapping lasts for more than 3 days;

!
o It is committed simulating public authority;
!oAny serious physical injuries are inflicted upon the person
!oThe kidnapped or detained or threats to kill him are made; or

person kidnapped or detained is a minor, female, or a public

officer.
!
2. Kidnapping and Slight Illegal Detention (Art. 268, Revised Penal
Code)
! Offender
▪
!He kidnapsis aorprivate individual;

▪ detains another, or in any other manner

deprives him of his liberty;
! The act of kidnapping or detention is illegal;
! ▪ The crime is committed without the attendance of any of the
▪
circumstances enumerated under Kidnapping and Serious
Illegal Detention.
!
g. Grave Threats (Art. 282, Revised Penal Code)
!1. Threatening another with the infliction upon his person, honor or
property, or that of his family, of any wrong amounting to a
crime and demanding money or imposing any other
condition, even though not unlawful, and the offender
attained his purpose; OR
!2. Making such threat without the offender attaining his purpose;
OR
!3. Threatening another with the infliction upon his person, honor or
property, or that of his family, of any wrong amounting to a
crime, the threat not being subject to a condition.
!h. Grave Coercion (Art. 286, Revised Penal Code)
!
!189
1. A person prevented another from doing something not
prohibited by law, or that he compelled him to do something
against his will; be it right or wrong;
!2. the prevention or compulsion be effected by violence, threats or
!3. theintimidation; and

person that restrained the will and liberty of another had not
the authority of law or the right to do so, or in other words,
that the restraint shall not be made under authority of law or
in the exercise of any lawful right.
!i. Attempted or frustrated Murder or Homicide (Art. 250, Revised
Penal Code)
!1. If torture was committed through acts that clearly evince the
perpetrator’s intent to ultimately kill the victim (albeit in a
protracted manner as to first extract useful or incriminating
information), although the victim did not die as a result, then
an action for frustrated or attempted murder or homicide may
be filed, alleging the following elements:
! • An attempt to kill a person;
!
• Offender attempted to kill him without any justifying
circumstances;
! • Offender
! • The killinghadwasthenotintension to kill him;

attended by any of the qualifying

circumstances of murder, or by that of parricide or
infanticide.
!j. Murder (Art. 248, Revised Penal Code) or Homicide (Art. 249,
Revised Penal Code)
!1. If the victim actually dies as a result of the torture, then an
action for murder or for homicide may be brought before the
courts by the heirs of the deceased assisted by the
Prosecutors or Public Attorneys, alleging the following
elements:
! • A person was killed;
!• Accused killed him;
!190
! • The killing was attended by any of the following qualifying
circumstances:
! o With treachery, taking advantage of superior strength, with
the aid or armed men, or employing means to waken the
defense, or of means or persons to insure or afford impunity;
!
o In consideration of a price, reward or promise;
! o By means of inundation, fire, poison, explosion, shipwreck,
standing of a vessel, derailment or assault upon a railroad,
fall of an airship, by means of motor vehicles, or with the use
of any other means involving great waste and ruin;
! o On occasion of any of the calamities enumerated in the
preceding paragraph, or of an earthquake, eruption of a
volcano, destructive cyclone, epidemic, or any other public
calamity;
! o With evident premeditation;
! o With cruelty, by deliberately and inhumanly augmenting the
suffering of the victim, or outraging or scoffing at his person
or corpse.
!• The killing is not parricide or infanticide.
!
In all these cases, however, the prosecution of torture takes a
more circuitous route, not to mention the fact that it would be
harder to meet the quantum of evidence required to sustain
a conviction on all grounds taken individually. It would,
however, be better to institute these actions in vindication of
the rights of the victim rather than allow the act of torture to
go unpunished and not to pursue it in lieu of the “main”
action in the case (e.g., the victim is charged with the crime
of theft but was tortured while in detention – chances are the
defense will just concentrate on proving innocence of the
accused in the crime of theft without pursuing administrative
and criminal cases in relation to the perpetration of torture on
the accused).
!4. Prosecution under the Human Security Act (RA 9372)
!
!191
 Under the Human Security Act, the following acts shall not be
employed during the investigation/interrogation of a person
detained for the crime of terrorism or conspiracy to commit
terrorism:
!• Threat
!
• Intimidation
!• Coercion
!• Acts which will inflict any form of physical pain or
torment, or mental, moral, or psychological pressure, or
which shall vitiate the detained person’s free-will
!
If the above acts were shown to have been committed, the
evidence obtained from said detained person resulting from
such threat, intimidation, or coercion, or from such inflicted
physical pain or torment, or mental, moral, or psychological
pressure, shall be, in its entirely, absolutely not admissible
and usable as evidence in any judicial, quasi-judicial,
legislative, or administrative investigation, inquiry,
proceeding or hearing.
!More importantly, the person or persons proven to have
committed the above acts will be penalized under Sec. 25 of
the Human Security Act in this wise:
!a. Any person or persons who use threat, intimidation, or coercion,
or who inflict physical pain or torment, or mental, or moral, or
psychological pressure, which shall vitiate the free-will of a
charged or suspected person under investigation and
interrogation for the crime of terrorism or the crime of
conspiracy to commit terrorism shall be guilty of an offense
and shall suffer the penalty of twelve years and one day to
twenty years of imprisonment.
!b. When death or serious permanent disability of said detained
person occurs as a consequence of the use of such threat,
intimidation, or coercion, or as a consequence of the
infliction on him of such physical pain or torment, or as a
consequence of the infliction on him such mental, or moral,
or psychological pressure, the penalty shall be twelve years
and one day to twenty years of imprisonment.
!
!192
5. Resort to the generic remedies for human rights violations
!Since the act of torture, as discussed above, may take the form
or include punishable acts like illegal or arbitrary detention;
unjust imprisonment or detention; or the infliction of various
physical, emotional, or psychological injuries, then torture as
a consequence can be made a ground for a claim under the
Victim Compensation Act (RA 7309), as well as an
independent action for damages under Article 32 of Civil
Code, particularly on the ground of violation of the freedom
against cruel and unusual punishment and the freedom
arbitrary or illegal detention.
!C. DEALING WITH TORTURE UNDER PROCEDURAL LAW
!1. Inadmissibility in evidence under the Constitution
!Under the 1987 Constitution (Article III, Sec. 12 (3)), one of the
most paramount procedural rule that the prosecutor should
remember is that any confession or admission obtained
from a person under investigation through torture shall be
inadmissible in evidence against him. This principle of the
Constitution partakes of a Rule of Exclusion that, in
contemplation of the Rules of Court (particularly the Rules
on Evidence.)
!The prosecutor must be prudent enough to confer with the client
in confidence and in a manner and within an atmosphere
that should inspire trust so that the possibility of such
confession or admission being obtained through torture can
be eliminated with certainty. Oftentimes, the case of the
prosecutor can rise and fall with the admission into evidence
of the defendant’s admission or confession. It is therefore
imperative that torture be ruled out n such cases to avoid a
miscarriage of justice.
!2. Detection of torture at the inquest stage
!Letter of Instruction 621 (series of 1977) provides for a
procedural mechanism by which torture can be prevented
very early in the prosecution process. Sec. 6 (e) thereof
pronounces that one of the functions of the inquest
procedure is to determine if maltreatment or other forms of
torture have been committed on the person arrested and to
institute the necessary charges if any.
!193
!Clearly, the Prosecutor tasked to determine the legality of a
warrantless arrest and the propriety of keeping an accused
under detention also has the responsibility of seeing to it that
the process of arrest and custodial investigation (which
commences immediately at the point of arrest) is not vitiated
by acts of torture and other forms of maltreatment. The
Prosecutor must ascertain this by posing questions to the
accused under such circumstances as to render the query
effective; it cannot be undertaken in a manner that would
defeat the intention of the law (e.g., in the presence of
arresting officers from which an accused claiming torture can
reasonably fear retaliation).
!If torture is already detected at this stage, and supposing
probable cause for the legality of the arrest rests solely upon
a confession extracted through it, then the Prosecutor acting
as inquest officer can immediately abort the prosecution
process, or overrule the plea for continued detention, or
make a recommendation finding lack of probable cause, on
the ground that a confession extracted through torture or
acts tantamount to it is inadmissible in evidence. This is
without prejudice to the institution of proper actions to
proceed against the perpetrators of torture.
!3. Treatment of torture at the trial stage
!a. Administrative Matter No. MTJ 90-4001 (July 14, 1995)
!What if torture, up until the point where the case goes to trial,
remains undetected? Or if torture has been restored to only
at that point most proximate to the trial date where the
accused is set to testify and must therefore be intimidated?
!Allegations of torture at the point of trial is still primarily the
responsibility of the lawyer to verify and act upon
accordingly. The continuation of the trial of the case for
which the person stands accused is not a bar to the
institution of administrative or criminal actions against
persons guilty of perpetrating torture. However, if allegations
of torture have been brought to fore during the trial stage or,
indeed, in open court at the trial itself, an obligation is also
imposed on the judge to proceed with the trial with extra
caution to “prevent the constitutional guarantees [against
torture, force, violence, threat, intimidation, or any other
!194
 means which vitiate the free will] from being reduced to futile
platitudes”. This much is mandated by Administrative Matter
No. MTJ 90-4001 (July 14, 1995).
!What does “extra caution” entail? This would entail the judge’s
taking an active role in the ascertainment of the veracity of
the claim of torture or in the assurance that statements given
in open court were not the result of torture, even if no claim
to that effect was raised. Whenever an admission or
confession is introduced in evidence, the judge should
personally satisfy himself that such were voluntarily given
and not extracted through force or intimidation.
!2. People v. Castro (GR No. L-17465, August 31,1964)
!In the 1964 criminal case of People v. Castro, the Supreme
Court imposed upon judges and prosecutors, to whom
persons accused are brought for swearing to the truth of
their statements, the obligation to adopt the practice of
having confessants physically and thoroughly examined by
independent and qualified doctors before administering the
oath, even if it is not requested by the accused.
!The judge is enjoined to assume an active role in the detection of
torture, so much so that he/she is expected not only to
address allegations of torture, or ascertain the absence
thereof whenever a confession or admission in introduced in
evidence. The judge, in general terms, is joined to make
findings of fact regarding the presence or absence of
previous acts of torture perpetrated upon the accused
through overt the searching inquiry. In doing so, the judge
must take into account the fact that an accused who goes to
court for the trial and who expects to be returned to the
same detention place under the custody of the same
detention officers is very unlikely to volunteer information of
torture or maltreatment.
!It is therefore the duty of the judge to examine the Candor of the
accused and look for tell-tale signs of torture even if no
allegation of such was made. In addition, the judge must not
confine him/herself with mere physical manifestations
evidencing or indicating the possibility of torture.
!3. People v. Chaw Yaw Shun G.R. L-19590, April 25, 1968
!
!195
 In Chaw Yaw Shun, the Supreme Court acknowledge that the
mere absence of external injury in the confessor’s body does
not destroy or rule out any claim of maltreatment by the use
of other scientific modes or forms of torture. Vigilance,
therefore, should be exercised by the judge in ascertaining
that torture was not committed, whether or not such
commission resulted in physical injuries that are easily
detected.
!III. PROSECUTING CASES OF ENFORCED DISAPPEARANCE
!A. BACKGROUND
!On the occasion of the Supreme Court’s promulgation of the
historic Rule on the Writ of Amparo, the High Court had
opportunity to expound on what “enforced disappearances”
mean. According to the Court, adopting the definition
advanced by the Declaration on the Prosecution of All
Persons Against Enforced Disappearance, there is a case of
enforced disappearance when the following characteristics
concur:
!1. an arrest, detention or abduction of a person by a government
official or organized groups or private individuals acting with
the direct or indirect acquiescence of the government;
!2. the refusal of the State to disclose the fate or whereabouts of
!3. or atherefusal
person concerned;

of the acknowledge the deprivation of liberty which

places such persons outside the protection of the law
(Declaration on the Protection of All Persons Against
Enforced Disappearance. UN GAOR 47/133, 18 December
1992, Third Preambular Clause).
!Enforced disappearances, however, are per se unfamiliar
creatures in the legal terrain of the Philippine criminal justice
system. There is no such crime found in our statute books.
Does it mean to say, then, that prosecutors faced with such a
case are left with no resort in law to vindicate the rights of
the victim? How does an agent of the criminal justice system
go about employing the ordinary mechanisms of redress
provided in law to deal with an extraordinary case like
enforced disappearances?
!
!196
B. REMEDIES AVAILABLE UNDER ORDINARY ACTIONS
!1. Availment of generic remedies for human rights violations
!a. Cases of enforced disappearance represent a violation of a
!1. rightperson’s:
to liberty and security,
!
2. right not to be subjected to enforced disappearance, a right
recognized by international human rights instruments, and
!3. right
!b. As such,nottheto begeneric
subjected to unlawful or arbitrary detention.

remedies for human rights violations as

discussed earlier in this manual can be availed of. Victims of
enforced disappearance can seek compensation against
perpetrators by way of an action for damages under Article
32 of the Civil Code and from the Board of claims of the
Department of Justice under the Victim Compensation Act.

2. Criminal actions
!a.Actions under the revised Penal Code can be brought against
persons responsible for enforced disappearances.
Depending on the satisfaction of the requisite elements
constituting each felony, the following actions (with the
following elements) may be filed against the responsible
person or persons for acts that they have committed directly
or on the occasion of the enforced disappearance
!1. Arbitrary Detention (Art. 124, Revised Penal Code)
!a.Offender is a public officer or employee;
!
b.He detains a person;
!c.The detention is without legal grounds. For this purpose,
!i. No“without legal ground” means either:

crime was committed by the detained; or

!
ii. There is no violent insanity of the detained person; or
!
!197
iii. The person detained has no ailment which requires compulsory
confinement in a hospital.
!2. Kidnapping and Serious Illegal Detention (Art. 267, Revised
Penal Code)
!a.Offender is a private individual;
!
b.He kidnaps or detain another, or in any other manner deprives

!c.Thetheactlatter of his liberty;

of detention or kidnapping must be illegal;

d.In the commission of the offense, any of the following
circumstances is present:
!i. The kidnapping lasts for more than 3 days;
!
ii. It is committed simulating public authority;
!iii. Any serious physical injuries are inflicted upon the person
!iv. Thekidnapped or detained or threats to kill him are made; or

person kidnapped or detained is a minor, female, or a

public officer.
!
e.In addition, when the following qualifying circumstances are
present when the felony is committed, the highest imposable
penalty shall be imposed:
!i. Purpose is to extort ransom;
!ii. When the victim is killed or dies as a consequence of the
detention;
!iii. When
!iv. When the victim is raped;

the victim is subject to torture of dehumanizing acts.

!C. REMEDIES
!I. Rationale AVAILABLE FOR INFORMATION GATHERING
!The first and most pragmatic step in dealing with a case of
enforced disappearance is information-gathering. A defining
characteristic of enforced disappearance is the sudden
!198
 abduction of a person (either under the guise of an
ostensibly lawful arrest or through machinations designed to
carry out the abduction without witnesses and with impunity)
under circumstances that would incapacitate that person’s
family or loved ones from knowing where to look for him/her
afterwards. The incapacity can be brought about by factors
such as the deliberate assumption of anonymity of his/her
abductors (through removal of identifying nameplates/
insignias of home units, etc.), deliberate non-disclosure of
his/her detention place, or the cutting off of all means of
communication to and from the abducted person.
! Since the family or loved ones of the disappeared person would
not know where to look, it becomes a challenge to avail of
the usual remedies under the law which lays down certain
threshold information at the outset as a precondition to the
availment thereof – issues of territorial jurisdiction, to whom
court processes will be served, etc. the first step is therefore
to gather as much information as one can so that the victim’s
family or loved ones can institute the necessary action and
avail of the necessary remedy more effectively.
!2. Right to information; extent thereof
!The right to information is a right recognized by the Universal
Declaration of Human Rights when it provides: “Everyone
has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any
media regardless of frontiers” (U.N. GAOR 217 A (III), 10
December 1948, Art. 19).
!The Constitution also provides: “The right of the people to
information on matters of public concern shall recognized.
Access to official records and to documents and papers
pertaining to official acts, transactions, or decisions, as well
as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such
limitations as may be provided by law” (Art. III, Sec. 7).
!The incorporation of the right to information in legal instruments
and documents only goes to prove that it is infused with a
public policy dimension and enjoys the full recognition and
protection of the law. The right is primarily predicated on the
inherent entitlement of the people to be vanguards of
!199
 governance, to be cognizant of matters that their elected
leaders are undertaking. The democratic institutions of the
country would be rendered infirm if the people cannot be
given the power to hold their leaders accountable through
mechanisms of transparency put in the place by the laws.
!On a smaller scale, however, the right to information can also be
invoked not only for purposes of political governance but
also as a safeguard against official abuse. Pertinent to cases
of enforced disappearance, the almost plenary right to
information can be employed to compel access to and
disclosure of official data that can be helpful in the location of
a person involuntarily disappeared. This can include access
to official police blotters and military records, as well as
records of commitment of persons to detention facilities.
Owing to the board and sweeping language of the
constitutional provision guaranteeing the right to information,
access to official records, especially those that would aid in
the resolution of cases of enforced disappearance, is the
general rule, and any limitation thereto can only be imposed
by direct legal prescription.
!3. Right to information; limitations thereto
!The Implementing Rules and Regulations of the Code of
Conduct and Ethical Standards for public Officials and
Employees (RA 6713 and its IRR) states the limitations
provided by law with regard to access to official records,
data, and information. In a gist, the limitations provided in the
law all pertain largely to already-established areas of
governance where wide and open public access would result
in detrimental consequences to national security, the
protection of the rights of persons, and foreign affairs. In the
following cases, access to information is restricted, as
provided in Rule IV, Sec. 3 of The Implementing Rules of RA
6713:
!a. such information, record or document must be kept secret in the
interest of national defense or security or the conduct of
foreign affairs;
!b. such disclosure would put the life and safety of an individual in
! imminent danger;
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b. the information, record or document sought falls within the
concepts of established privilege or recognized exceptions
as may be provided by law or settled policy or jurisprudence
(e.g., closed door cabinet sessions, executive sessions of
Congress, deliberation of the Supreme Court, trade, secrets,
and the like);
!c. such information, record or document comprises drafts of
decisions, orders, rulings, policy decisions, memoranda, etc.;
!d. it would disclose information, of a personal nature where
disclosure would constitute a clearly unwarranted invasion of
personal privacy (e.g., patient-physician privilege);
!e. it would disclose investigatory records complied for law
enforcement purpose, or information which if written would
be contained in such records, but only to the extent that the
production of such records or information would:
!1. interfere with enforcement proceedings;
!2. deprive a person of a right to a fair trial or an impartial
adjudication;
!3. disclose the identity of a confidential source and, in the case of
a record compiled by a criminal law enforcement authority in
the course of a criminal investigation, or by an agency
conducting a lawful national security intelligence
investigation, confidential information furnished only by the
confidential source; or
!4. unjustifiably disclose investigative techniques and procedures;
or
!5. it would disclose information the premature disclosure of which
would:
!• In the case of a department, office or agency which regulates
currencies, securities, commodities, or financial institutions,
be likely to lead to significant financial speculation in
currencies, securities, or commodities, or significantly
endanger the stability of any financial institution; or
!• In the case of any department, office or agency, be likely or
significantly to frustrate implementation of a proposed official
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 action, except that subparagraph (f) (ii) shall not apply in any
instance where the department, office or agency has already
disclosed to the public the content or nature of its proposed
action, or where the department, office or agency is required
by law to make such disclosure on its own initiative prior to
taking final official action on such proposal.
!Notice that under letter (a) (i) in the quoted portion of the
Implementing Rules above, the invocation of national
defense and security can be used to defeat the right of
information .Experience has it that this ground has been
used to deny access to official police and military records
that could have been helpful in the location of disappeared
persons.
!However, despite recourse to this ground provided by law, there
exists a relatively new remedy under procedural law that
would temper the invocation of national defense and security
to give primacy to the right to information in cases where
violation of the right to life, liberty, and security are being
brought to fore.
!4. Availing of the Rule on the Writ of Habeas Data (A.M. No.
08-1-16-SC, January 22, 2008)
!1. Definition
! According and Purpose

to the rule itself, the writ of habeas data is a remedy

available to any person whose right to privacy in life, liberty
or security is violated or threatened by an unlawful act or
omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family,
home and correspondence of the aggrieved party.
! As a new prerogative writ, Habeas Data became available as
a result of the Supreme Court-convened National
Consultative Summit. Habeas Data seeks to complement all
the other remedies available under the law to protect the
rights of persons. What, in general terms, is the utility of the
writ of habeas data?
! Habeas Data is useful because it delineates the limitations to
the limitation on the right to information, i.e., it mandates the
disclosure of official records and information that could have
!202
 been validly withheld from the public by a simple invocation
of “national defense and security interests”. In short, it
becomes a potent tool for the resolution of cases of enforced
disappearances because it recognizes that, above national
defense and security interests, the State places a greater
premium on the protection of life, liberty and security of
people. The family and loved ones of disappeared persons
cannot be derailed in their search by official refusal to open
public records because of the Writ Habeas Data
!2. By whom filed
!The petition for Writ of Habeas Data can both be a preventive
!a. As and a curative remedy:

!• Any aperson
preventive remedy, it can be filed:

whose life, liberty, or security is being threatened, or

!
• Who is being subjected to political harassment
!oSuch person can compel the disclosure of official records so that
any misinformation regarding his or her person can be
corrected or expunged.
!
o For example, a person may file a petition so that political
harassments and threats to his or her life, liberty, or security
on the basis of alleged information regarding affiliation with a
terrorist group can be averted. In such a case, any arrest
effected against him or her will no longer have any legal
basis because the courts have already ordered rectification
of his or her records which are in the custody of officials of
the State.
!b. As a curative remedy, however, like in cases, where a person
has already been abducted and involuntarily disappeared,
the petition may be filed by:
!• His or her immediate family, or
!
• Collateral relatives, or
!• Any member of the community (in this particular order)
!
!203
o Such persons can seek information regarding the status of the
disappeared person, where he or she may have been
detained, or information about him or her in the official
records that may shed light on the reason for the abduction
and eventual disappearance.
!
o For purpose of filing a petition for issuance of the Writ of Habeas
Data, no docket fees shall be required to be paid by any
petitioner.
!
3. Allegations in the petition
The petition for a Writ of Habeas Data should contain the
following allegations and jurisdictional information:
!a.The personal circumstances of the petitioner and the
respondent;
!
b.The manner the right to privacy is violated or threatened and
how it affects the right to life, liberty or security of the
aggrieved party;
!c.The actions and recourses taken by the petitioner to secure the
!d.Thedata or information;

location of the files, registers or databases, the government

office, and the person in charge, in possession or in control
of the data or information, if known;
!e.The reliefs prayed for, which may include the updating,
rectification, suppression or destruction of the database
information or files kept by the respondent. In the case of
threats, the relief may include a prayer for an order enjoining
the act complained of; and
!f.Such other relevant reliefs as are just and equitable.
!
4. Filing of the return
!The power of the Writ to aid in the quest of families and loved
ones in searching for disappeared persons can be seen
when it is ordered to be answered.
!Once the writ is ordered served, it can be enforceable anywhere
in the Philippines against the person or persons named in
the summons. Such person or persons will then be
!204
 compelled to file a verified return within 5 days from service
of the writ, on pain of being cited for contempt of court.
!The filing of the return represents an opportunity for the family
and loved ones of a disappeared person to scrutinize public
records in the custody of State officials that may lead to the
surfacing of the victim or the disclosure of the probable
reason for the disappearance (invariably, such reason may
relate to confidential information regarding membership in a
terrorist group, involvement in seditious or rebellious
activities, or identification with groups who have committed
past crimes or atrocities).
!To this end, the return cannot simply contain a general denial of
!• The the allegations in the petition. It shall state:

lawful defenses such as national security, state secrets,

privileged communications, confidentiality of the source of
information of media and others
!oIf this defense is claimed, hearings in chambers may be
conducted at the discretion of the court to examine the
validity of its invocation
• In case of respondent in charge, in possession or in control of
the data or information subject of the petition:
!oA disclosure of the data or information about petitioner, the
nature of such data or information, and the purpose for its
collection;
!
o The steps or actions taken by the respondent to ensure the
security and confidentiality of the data or information;
!oThe currency and accuracy of the data or information held; and,
!oOther allegations relevant to the resolution of the proceeding.
!
To emphasize the urgency with which the Writ of Habeas Data
should be granted in meritorious cases, the rules provide
that dilatory motions shall be prohibited and that the nature
of the hearing on the petition shall be summary.
!5. Relief that may be granted
!
!205
 Once submitted for decision after hearing, judgment on the
petition should be rendered within 10 days. Note that even
before submission of the case for resolution by the courts,
Habeas Data has already been able to serve one of its
functions right from the time the State official/s concerned
filed their in return. Information that could not have been
obtained upon invocation of the “national security” defense
has already been disclosed to aid in locating a disappeared
person.
!However, when such information as disclosed has been
established by substantial evidence to be deleterious to the
interest of the petitioner in protecting his or her right to life,
liberty, and security, or that of his or her loved ones, then the
court shall render judgment granting any of the following
reliefs:
!oEnjoinment of an act complained of
!
o Deletion, destruction, or rectification of erroneous data or

!oOtherinformation
equitable reliefs as may be warranted by each case.
!
How can this kind of judgment be treated as a human rights
remedy? To illustrate, a disappeared person who, as
disclosed by official records surfaced during the hearings for
the petition, is suspected of being a member of a terrorist
group, can be released with greater facility from the moment
the whereabouts of his or her detention is discovered
because there will be no more basis for detaining him/her or
withholding information regarding his/her tactical
interrogation in case such is being conducted.
!D. REMEDIES AVAILABLE FOR COMPELLING OFFICIAL
ACTION OR RESPONSE
!1. Rationale
!More often than not, however, the gathering of information is not
the final step in the long and arduous process of locating a
loved one who has been disappeared involuntarily. It would
be an ideal situation where resort to the right to information
under the plenary grant of constitutional entitlement would

!206
 already yield positive results that would lead to the
reunification of a disappeared person with his or her family.
!When a valid defense is invoked by officials that led to the
stonewalling of the search for the missing victim, it would
also be an ideal situation where a Writ of Habeas Data can
assist in the disclosure of information leading to the location
of the disappeared person and/or the rectification of his or
her dossier in the custody of the police and the military that
would erase the justification for his or her being subjected to
surveillance, investigation, or outright harassment.
!However, in cases where such information-gathering
mechanisms provided by law failed to assist in the
achievement of the ultimate objective of the ongoing search,
more drastic measures should be employed. For example,
information may have been disclosed by the officials
concerned, but such information will remain just that if official
response or action cannot be had on the basis thereof. The
location of the detention facility where a disappeared person
is being held may have been disclosed via Habeas Data, but
such information will remain useless if officials concerned will
continue to refuse to release the victim on some ground.
!In these cases, official action or response needs to be
compelled. Under the legal firmament of the Philippines,
such can be done through employment of two procedural
rules directly mandating the production of the body of a
disappeared person, or compelling State officials to
undertake measures to actively determine his or her
whereabouts.
!2. Availing of the Rule on the Writ of Habeas Corpus (Rule
102)
!(1) Nature
!The Rulesandof Court
Purpose

provide for a special proceeding known as

the Writ of Habeas Corpus. Habeas Corpus is a high
prerogative writ, a remedy which seeks not so much to
obtain an adverse adjudication against another as to ask the
courts to initiate an inquisition on behalf of the State.
!The sole and paramount objective of a petition for a Writ of
Habeas Corpus is to seek the intervention of the courts in
!207
 compelling State officials exercising custody over a person to
produce that person’s body and justify his or her continued
confinement.
!Relative to cases of enforced disappearances, habeas corpus
could operate to facilitate the location of a disappeared
person when it has been ascertained that he or she is being
kept under confinement on some illegal ground as to amount
to an unlawful deprivation of his or her liberty.
!(2) Allegations in the petition
!1. Application for the writ shall be by petition signed and verified
either by the party for whose relief it is intended, or by some
person on his behalf, and shall set forth:
!a. That the person in whose behalf the application is made is
!b. theimprisoned or restrained of his liberty;

officer or name of the person by whom he is so imprisoned

or restrained; or, if both are unknown or uncertain, such
officer or person may be described by an assumed
appellation, and the person who is served with the writ shall
be deemed the person intended;
!c. The place where he is so imprisoned or restrained, if known;
!d. A copy of the commitment or cause of detention of such person,
if it can be procured without impairing the efficiency of the
remedy; or, if the imprisonment or restraint is without any
legal authority, such fact shall appear.
!(3) When writ denied; when granted.
1.After the hearing on the petition, the court shall order the
immediate release from confinement of the person subject of
the writ if it was determined that the ground for the
deprivation of his or her liberty is not meritorious.
!
On the other hand, if it appears:
!a.That the person alleged to be restrained of his liberty is in the
custody of an officer under process issued by a court or
judge, or
!
b.By virtue of a judgment or order of a court of record, and
!208
!c. That the court or judge had jurisdiction to issue the process,
!The writrender the judgment, or make the order,

shall not be allowed; or if the jurisdiction appears after the

writ is allowed, the person shall not be discharged by reason
of any informality or defect in the process, judgment, or
order.
!(4) Limitation of the Writ
!The petition for a Writ of Habeas Corpus is an effective remedy
to compel official action in the form of the production of the
body of a disappeared person and the justification before a
court of law of the legality of the person’s continued
confinement.
!However, this presupposes that the family and loved ones of the
disappeared person have already pinpointed the
disappeared person’s whereabouts, whether serendipitously,
by asking around, or by availing of the mechanisms of
information-gathering as discussed in the previous section.
In cases where the information is still a bit sketchy, or not
supported by enough admissible evidence, a petition for a
Writ of Habeas Corpus may nonetheless be filed out of the
desperate need to locate the disappeared person, and on
the faint hope that compelling State officials to explain
themselves before the courts would yield some positive
result.
!However, as experience would have it, habeas corpus petitions
are often stonewalled and derailed by the simple expedient
of denial on the part of the respondent-State officials,
especially if the evidence that they have the disappeared
person in custody is not overwhelming enough. This is not
surprising considering that under Rule 102 of the Rules of
Court, the respondent official suspected to have under
custody the disappeared person need only to state the
following matters in his or her return to the court:
!1.Whether he has or has not the party in his custody or power, or
!2.If heunder restraint;

has the party in his custody or power, or under restraint, the

authority and the true and whole cause thereof, set forth at
!209
 large, with a copy of the writ, order, execution, or other
process, if any, upon which the party is held;
!a.If the party is in his custody or power or is restrained by him, and
is not produced, particularly the nature and gravity of the
sickness or infirmity of such party by reason of which he
cannot, without danger, be brought before the court of judge;
!b.If he has had the party in his custody or power, or under
restraint, and has transferred such custody or restraint to
another, particularly to whom, at what time for what cause,
and by what authority such transfer was made.
!
!
Note that the premise of all the above-mentioned allegations in
the return is that the official being accused of detaining a
disappeared person actually has such person under his or
her custody. If this fact is already controverted by the
allegations in the return, then the hearing for the petition for
a Writ of Habeas Corpus comes to a virtual standstill. There
is no other remedy available for the complainant under the
Rules of Court that could override the denial of the State
official; no mechanism by which such denial may be required
to be substantiated; no way for the official to be compelled to
do anything besides.
!This is why, during the National Consultative Summit sponsored
by the Supreme Court, one of the resounding
recommendations to address the spate of enforced
disappearances in the country is to fortify the habeas corpus
writ to compel State officials to go beyond a mere denial and
to undertake positive measures to aid in the location of a
disappeared person. The next section is dedicated to this
new remedy to complement the Writ of Habeas Corpus.
!3. Availing of the Rule on the Writ of Amparo (A.M. No.
07-9-12-SC, October 24, 2007)
!(1) Nature and Purpose
According to the rule promulgating it, the petition for a Writ of
Amparo is a remedy available to:
!a.Any person whose right to life, liberty and security is violated or
threatened with violation by an unlawful act or omission of:
!210
!i. A public official or employee, or
!
ii. A private individual or entity.
!b.It shall cover extra-legal killings and enforced disappearances or
threats thereof.
!
As a relatively new remedy, Amparo has been viewed as a
procedural rule that directly seeks to remedy cases of
enforced disappearances and extra-legal killings. Its ultimate
objective is much broader than that of habeas corpus.
Whereas habeas corpus merely seeks to have the body of a
disappeared person produced before the court or his or her
continued deprivation of liberty justified, Amparo vests the
court with an almost plenary power to grant whatever
remedy is available and equitable under the law with a view
to protecting a person from actual or threatened violation of
the right to life, liberty, or security.
!(2) By whom filed
!The petition for a Writ of Amparo may be filed by the aggrieved
party or by any qualified person or entity in the following
order:
!a.Any member of the immediate family, namely: the spouse,
!b.Anychildren and parents of the aggrieved party;

ascendant, descendant or collateral relative of the

aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned in the
preceding paragraph; or
!c.Any concerned citizen, organization, association or institution, if
there is no known member of the immediate family or
relative of the aggrieved party;
!d.Provided in all cases that the filing of a petition by the aggrieved
party suspends the right of all other authorized parties to file
similar petitions.
!Likewise, the filing of the petition by an authorized party on
behalf of the aggrieved party suspends the right of all others,
observing the order established herein. For purpose of filing
!211
 the petition and in recognition of the paramount importance
of the rights being protected by the writ, no docket fees need
be paid in court.
!(3) Allegations in the petition
!The petition shall be signed and verified and shall allege the
!a.Thefollowing:
!b.The personal circumstances of the petitioner;

name and personal circumstances of the respondent

responsible for the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be described by
an assumed appellation;
!c.The right to life, liberty and security of the aggrieved party
violated or threatened with violation by an unlawful act or
omission of the respondent, and how such threat or violation
is committed with the attendant circumstances detailed in
supporting affidavits;
!d.The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
authority or individuals, as well as the manner and conduct
of the investigation, together with any report;
!e.The actions and recourses taken by the petitioner to determine
the fate or whereabouts of the aggrieved party and the
identity of the person responsible for the threat, act or
omission; and
!f.The relief prayed for. The petition may include a general prayer
for other just and equitable reliefs.
!(4) Filing of a return
!Compared to the return required to be filed in answer to a
petition for a Writ of Habeas Corpus, the return of the
respondent (which must be filed within 72 hours from
service) is required to contain allegations that are much
broader in scope.
!In sum, the respondent in an amparo proceeding is given a
heavier burden not only to justify the continued detention of
!212
 a disappeared person under custody if such were the case,
but also to undertake positive measures to locate the
whereabouts of the victim in case the respondent does not
have him or her under custody.
!In short, the respondent cannot simply deny that he or she has
the disappeared person under custody; he or she also has to
prove to the satisfaction of the court that all reasonable
means have been employed to ascertain that the victim is
indeed not under custody not only by the particular unit or
outfit to which he or she is attached, but also by others to
which inquiry may be addressed using usual channels and
networks of communication.
!Under the rule, the return to be filed in response to a petition for
!a.Thealawful
Writ of Amparo must state the following:

defenses to show that the respondent did not violate

or threaten with violation the right to life, liberty and security
of the aggrieved party, through any act or omission;
!b.The steps or actions taken by the respondent to determine the
fate or whereabouts of the aggrieved party and the person or
persons responsible for the threat, act or omission;
!c.All relevant information in the possession of the respondent
pertaining to the threat, act or omission against the
aggrieved party; and
!d.If the respondent is a public official or employee, the return shall
!i. To further state the actions that have been or will still be taken:

verify the identity of the aggrieved party;

ii. To recover and preserve evidence related to the death or
disappearance of the person identified in the petition which
may aid in the prosecution of the person or persons
responsible;
iii. To identify witnesses and obtain statements from them
concerning the death or disappearance;
!
iv. To determine the cause, manner, location and time of death or
disappearance as well as any pattern or practice that may
have brought about the death or disappearance;
!
!213
v. To identify and apprehend the person or persons involved in the
death or disappearance; and
!
vi.To bring the suspected offenders before a competent court.
!e.The return shall also state other matters relevant to the
investigation, its resolution and the prosecution of the case.
!
f.A general denial of the allegations in the petition shall not be
allowed.
!
(5) Interim reliefs that may be granted
!Also, unlike in the case of habeas corpus, a petitioner under
amparo may avail of certain remedies even during the
course of hearing the petition, and these interim reliefs
themselves partake of protective measures that may already
achieve the purpose of the writ even before judgment has
been ordered. The following are the interim reliefs provided
in the rule:
!1. Temporary Protection Order
The court, justice or judge, upon motion or motu proprio, may
order that the petitioner or the aggrieved party and any
member of the immediate family be protected in:
!(1) a government agency
(2) an accredited person
(3) a private institution capable of keeping and securing their
safety.
!• With regard to these “sanctuaries” that shall harbor persons to
be protected in the interim, the Supreme Court shall accredit
the persons and private institutions that shall extend
temporary protection to the petitioner or the aggrieved party
and any member of the immediate family, in accordance with
guidelines which it shall issue. The accredited persons and
private institutions shall comply with the rules and conditions
that may be imposed by the court, justice or judge.
!1.Inspection Order
!a.The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession or control of a

!214
 designated land or other property, to permit entry for the
purpose of:
!i. Inspecting,
!
ii. Measuring,
!
iii. Surveying, or
!
iv. Photographing the property or any relevant object or operation

!b.Thethereon.
motion shall state in detail the place or places to be
inspected.
!c.It shall be supported by affidavits or testimonies of witnesses
having personal knowledge of the enforced disappearance
or whereabouts of the aggrieved party.
!i. If the motion is opposed on the ground of national security or of
the privileged nature of the information, the court, justice or
judge may conduct a hearing in chambers to determine the
merit of the opposition.
!
ii. The movant must show that the inspection order is necessary to
establish the right of the aggrieved party alleged to be
threatened or violated.
!iii. The inspection order shall specify:
!(1) the person or persons authorized to make the inspection,
!(2) the time, place and manner of making the inspection and
!(3) may prescribe other conditions to protect the constitutional
!iv. Therights of all parties.

order shall expire five (5) days after the date of its
issuance, unless extended for justifiable reasons.
!2.Production Order
!a.The court, justice or judge, upon verified motion and after due
hearing, may order any person in possession, custody or
control of any designated documents, papers, books,
!215
 accounts, letters, photographs, objects or tangible things, or
object in digitized or electronic form, which constitute or
contain evidence relevant to the petition or the return, to;
!i. Produce and
!
ii. Permit their inspection, copying or photographing by or on

!b.Thebehalf of the movant.

motion may be opposed on the ground of national security

or of the privileged nature of the information, in which case
the court, justice or judge may conduct a hearing in
chambers to determine the merit of the opposition.
!c.The court, justice or judge shall prescribe other conditions to
protect the constitutional rights of all the parties.
!4. Witness Protection Order
a.The court, justice or judge, upon motion or motu proprio, may
refer the witnesses to the Department of Justice for
admission to the Witness Program (RA 6981)
!b.The court, justice or judge may also refer the witnesses to:
!i. Other government agencies,
!
ii. Accredited persons,
!iii. Or private institutions capable of keeping and securing their
safety.
!IV. PROSECUTING
!A. BACKGROUND CASES OF EXTRA-LEGAL KILLING
!Perhaps the most abhorrent crime is that which places in
jeopardy the most sacred thing that a person values- his or
her life. There are enough bodies of laws under criminal law
that deal with such crimes. However, there is a need to
recognize that another species of killings occupy a niche of
their own. These are killings induced by the victim’s political
affiliations or political beliefs and actuations, and involve the
employment of summary or arbitrary methods of execution.
!
!216
 In the Philippines, the problem was first given full recognition and
assumed the full gravity that it deserves during the National
Consultative Summit organized by the Supreme Court last
2007. It was later on highlighted in the Report made by
United Nations Special Rapporteur in Enforced
Disappearances and Extra-legal Killings Philip Alston. Prof.
Alston paid a personal visit to the Philippines last 2007 and
conducted investigations and inquiries personally to later on
present a report before the United Nations on the existence
of an alarming number of cases of extra-legal killings and
enforced disappearances.
!The National Consultative Summit itself was impelled by the
recent spate of widespread killings and summary executions
of members of progressive political groups, mostly in the
countryside, and journalists widely identified as being critical
of incumbent national and local officials.
!These killings are distinct in that they are committed with
violation of various human rights – they muzzle political
opposition, and thereby violate a person’s right to free
speech and free expression; they are committed in a
summary and arbitrary manner, thereby violating a person’s
right to be accorded due process of law prior to imposition of
any punishment; and they represent a punishment or
treatment that is neither commensurate to whatever
transgression has been committed nor sanctioned by the
criminal justice system of the country.
!The defining characteristic of extra-legal killings is the fact that
they are committed in a summary, arbitrary, and sometime
surreptitious manner to ensure impunity. Oftentimes, cases
of extra-legal killings arise out of prior cases of enforced
disappearances – the persons abducted and from whom
nothing was ever heard again turn up in some lonely lot,
lifeless and bearing signs of physical maltreatment and
abuse. It is therefore not easy to deal with such cases,
because there are instances where the fact of extra-legal
killing will be recognized too late and only after the ghastly
murder has been committed. How, then, can the Public
Prosecutor be in the best position to confront an issue as
complex as extra-legal killing?
!B. AVAILING OF THE WRIT OF AMPARO AS A PROTECTIVE
MEASURE
!217
!The remedy of the Writ of Amparo is broad and encompasses
not only the compulsion of State officials to divulge
information leading to the surfacing of a disappeared person
as discussed in the preceding section, but also the provision
of whatever protective remedy may be warranted, available,
and equitable under the law. Indeed, the literal meaning of
the origin of the word “amparo” (i.e., amparar in Spanish,
meaning “to protect”) evinces its central function in the legal
scheme of procedural law – the protection of persons whose
right to life, liberty, or security is violated or threatened with
violation.
!The availment of the remedy of the Writ of Amparo under the
case of enforced disappearance would focus more on
compelling State officials to divulge whatever information is
within their power to acquire pertinent to the whereabouts of
the disappeared person. Under the case of extra-legal killing,
however, amparo may be availed of as a protective remedy.
!Remember that amparo may be availed of even if the violation of
the right to life, liberty, or security, is only a threat. The
procedural requirements for filing the petition for the writ are
the same as the one discussed in the previous section.
However, as a protective remedy, amparo can be used to
compel a State official or private individual to defend him/
herself from the allegation that he or she is committing acts
constituting a threat to the right to life, liberty, or security of
the petitioner. During the hearing of the petition, the
respondent can be compelled to divulge whether the
petitioner is being subjected to surveillance or investigation,
in which case the ground therefor can be scrutinized by the
court for legality and validity. Another scenario would be that
the respondent can be compelled to declare for the record
that there exists no legal ground for the petitioner to be
subjected to any kind of apprehension, arrest, or
interrogation because he or she does not appear upon
official records to be suspected of any wrong doing.
!Also, and perhaps more importantly, the Writ of Amparo can be
used not only to obtain official assurance against threats to
life, liberty or security under the aegis of a court of justice.
The Writ of Amparo, with its built – in interim reliefs as
discussed in the preceding section, can provide the
petitioner with protective remedies that would ensure that his
!218
 or her life, liberty, or security will not be compromised even
while the petition is being heard. This provision in the rule
represents an acknowledgement that the pronouncements of
State officials before the court cannot be taken at their face
value; that even while they give assurances against threat to
life, liberty, or security, it does not mean that the petitioner
becomes less insecure and less vulnerable to sudden
violations.
!Rather than be complacent, the court shall be proactive in
according protection to the petitioner in such manner as to
avert the occurrence of extra-legal killing. Truly, there exists
a remedy under procedural law that may be availed, at the
outset, avert the possibility of one being subjected to extra-
legal killing. As such, every person, especially those
operating within sensitive political arenas, should be vigilant
in securing the aid of counsel for the filing of a petition for a
Writ of Amparo at the first signs or information of threats to
life, liberty, or security.
!C. REMEDIES AVAILABLE FOR INFORMATION-GATHERING
The remedies discussed above should be employed immediately
after a person has been abducted, arrested under
questionable circumstances, or has disappeared without
warning. Following the procedures as outlined in the
preceding part on Enforced Disappearance, the family and
loved ones of a person who has suddenly disappeared
should avail of all available information-gathering
mechanisms like resort to requests for information from
official agencies, or resort to the petition for a Writ of Habeas
Data. This information-gathering stage is necessary to
ascertain the condition and whereabouts of a disappeared
person. In the process, one of the unfortunate information
that may be unearthed is the fact that the disappeared
person has been the victim of extra-legal killing.
!D. AVAILMENT OF GENERIC REMEDIES FOR HUMAN RIGHTS
!WhenVIOLATIONS
the extra-legal killing has been attended by violation of
any of the civil and political rights and liberties enumerated in
Article 32 of the Civil Code (e.g., the right not to be subjected
to illegal or arbitrary detention, or cruel and unusual
punishment), an action for damages may be maintained. As
!219
 explained in Part II of this Manual, this is without prejudice to
the claiming of damages of the kind that is deemed instituted
with every criminal action, supposing the act complained of
also amounts to a punishable felony (which extra-legal killing
undoubtedly is). In addition, since the Victim Compensation
Act expressly recognizes the right of compensation should a
violent crime be committed which resulted in death, then the
heirs of the victim can also file a claim before the Board of
Claims of the Department of Justice.
!E. PROSECUTION UNDER THE HUMAN SECURITY ACT
The Human Security Act, as already explained earlier, provides
that, “any person or persons who use threat, intimidation, or
coercion, or who inflict physical pain or torment, or mental,
moral, or psychological pressure, which shall vitiate the free-
will of a charged or suspected person under investigation
and interrogation for the crime of terrorism or the crime of
conspiracy to commit terrorism shall be guilty of an offense
and shall suffer the penalty of twelve (12) years and one day
to twenty (20) years of imprisonment. When death or serious
permanent disability of said detained person occurs as a
consequence of the use of such threat, intimidation, or
coercion, or as a consequence of the infliction on him of
such physical pain or torment, or as a consequence of the
infliction on him of such mental, moral, or psychological
pressure, the penalty shall be twelve (12) years and one day
to twenty (20) years of imprisonment.”
!This is relevant when the victim is arrested for being a suspected
terrorist or co-conspirator in a terrorist plot and then
subjected to physical maltreatment which resulted in death.
A killing under these circumstances also qualifies as an
extra-legal killing because there is a political dimension to
the prior arrest of the person, but the person was later on
subjected to a death that was not sanctioned by the law,
thereby qualifying the killing as extra-legal. Whoever is
responsible for the physical maltreatment that resulted in the
extra-legal killing may be prosecuted directly under the
Human Security Act provisions, with the penalties imposable
as quoted above.
!F. CRIMINAL ACTIONS
!
!220
 Extra-legal killings are given a niche of their own because of their
human rights dimensions. However, in the eyes of criminal
law, extra-legal killings, despite their political underpinnings,
despite their summary and arbitrary nature, and despite the
perceived involvement of State officials and agencies by way
of direct commission or indirect acquiescence by silence, are
still takings of the life of another. Under the Revised Penal
Code, extra-legal killings qualify as either murder or
homicide (Article 248 and 249, respectively), and the
circumstances under which the killing was effected may
warrant the contemplation of the aggravating circumstances
of taking advantage of public position, lack of provocation,
nocturnity, being committed by a band, evident
premeditation, taking advantage of superior strength, or
treachery/alevosia.
!!
V. PROSECUTING CASES OF INVOLUNTARY DISPLACEMENT
!A. BACKGROUND
!The liberty of abode and of freedom of movement is one of the
fundamental rights guaranteed by the Constitution. It is
provided therein that “the liberty of abode and of changing
the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall
the right to travel be impaired except in the interest of
national security, or public safety, or public health as may be
provide by law.” (Article III, Sec. 6)
!These rights spring from the inherent entitlement of every person
to establish a domicile in a place that he or she finds
necessary, convenient, or beneficial, owing to personal
needs and circumstances and considerations of livelihood,
culture, and physiology.
!Concomitant to this right to settle down, however, is also the
freedom to change the same voluntarily. In the constitutional
provision just quoted, the only restriction to every person’s
constitutionally protected liberty of movement are issues of
national security, public safety, or public health; and even
then, such restrictions must be laid down explicitly by
legislation.
!
!221
 These two intertwining rights to abode and movement is inherent
in one’s right to liberty. The rights and privileges accorded to
a citizen will be seriously impaired if he/she is prevented
from choosing a permanent place of residence in which one,
in his/her personal opinion, is in the best position to exercise
such rights and fulfill their corresponding duties.
!It also violates the constitutional protection of one’s property for
the State to arbitrarily order the transfer of its citizens from
one place to another without regard of resulting economic
consequences like the loss of a job, occupation, or real
property. Lastly, a person’s life and culture is almost always
inextricably tied to one’s place of residence. Therefore, any
act of the State which arbitrarily impairs the right of abode
and movement can result in unduly uprooting a citizen from
the place to which he/she has cultural ties.
!How can certain acts violate the right of abode and freedom of
movement? The practice of “hamletting”, or the saturation of
a local village or area by State officials for strategic military
or police objectives and the forcible evacuation of its people
to other locations is one such act violative of the right of
abode and freedom of movement. As these rights are
infused with a heavy public policy dimension, caution should
be taken in the commission of acts that may impinge on
them; and if violations have been committed against them,
they should be proceeded against accordingly.
!B. GUIDELINES IN THE DELIMITATION OF THE RIGHT OF
!In theABODE AND RIGHT TO FREEDOM OF MOVEMENT

celebrated case of Villavicencio v. Lukban, 39 Phil. 778

(1919), women arrested in the City of Manila by Mayor
Lukban for being employed in houses of ill repute were
deported against their will to Davao. In doing so, Mayor
Lukban justified his act using the police power prerogatives
of local government officials. In striking down the act as
unconstitutional for being violative of the right of abode and
freedom of movement, the Supreme Court had occasion to
lay down the paramount guideline in the conduct of any
official act that would have the effect of delimiting the
people’s right to abode and freedom of movement: that there
must be a law authorizing the same. The Court asseverated
in this wise:
!
!222
 “Alien prostitutes can be expelled from the Philippine Islands in
conformity with an Act of Congress. The Governor-General
can order the eviction of undesirable aliens after a hearing
from the Islands. Act No. 519 of the Philippine Commission
and Sec. 733 of the Revised Ordinances of the City of
Manila provide for the conviction and punishment by a court
of justice of any person who is a common prostitute. Act No.
899 authorizes the return of any citizen of the United States,
who may have been convicted of vagrancy, to the homeland.
New York and other States have statutes providing for the
commitment to the House of Refuge of women convicted of
being common prostitutes. Always a law! Even when the
health authorities compel vaccination, or establish a
quarantine, or place a leprous person in the Culion leper
colony, it is done pursuant to some law or order. But one can
search in vain for any law, order, or regulation, which even
hints at the right of the Mayor of the City of Manila or the
chief of police of that city to force citizens of the Philippine
Islands – and these women despite their being in a sense
lepers of society are nevertheless not chattels but Philippine
citizens protected by the same constitutional guaranties as
are other citizens - to change their domicile from Manila to
another locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any
person to change his residence.”
!As such, unless the forcible evacuation and relocation of people
could be justified without cavil of doubt by exigencies of
national security, public safety, or public health, these acts
cannot be undertaken without express support in law.
!C. REMEDIES AVAILABLE FOR VIOLATION
!1. Action for damages under the generic remedies for human
rights violations
!(1) Article 32 of the Civil Code, as discussed earlier in this manual,
expressly recognizes that the violation of the right to abode
and freedom of movement is an act that would warrant
compensation by way of moral and exemplary damages.
!(2) This is without prejudice to whatever civil action for damages
may be maintained as a consequence of the criminal act to
which the violation would amount.
!223
!2. Criminal action for Expulsion (Art. 127, Revised Penal
!a. TheCode)
felony of expulsion as punished in the Revised penal Code
has the following elements:
!1.Offender is a public officer or employee;
!
2.He either expels any person from the Philippines; or compels a
person to change residence;
!
!
3.Offender is not authorized to do so by law.
!
3. Criminal action for Grave Coercion (Art. 286, Revised Penal
Code)
!(1) When the perpetrator of an act violative of the right of abode
and freedom of movement is not a public officer, such act
would qualify as grave coercion punishable by the Revised
Penal Code. The elements of the felony are:
!1. A person prevented another from doing something not
prohibited by law, or that he compelled him to do something
against his will; be it right or wrong;
!2. The prevention or compulsion be effected by violence, threats
!3. Theorperson
intimidation; and

that restrained the will and liberty of another had not

the authority of law or the right to do so, or in other words,
that the restraint shall not be made under authority of law or
in the exercise of any lawful right.
!VI. GENERIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS
!A. PRESENT CONTEXT
!Currently, human rights violations are not given particular and
direct treatment under the law. As it were, the multifarious
ways by which a person’s human rights may be violated are
addressed by way of distinct criminal actions that may be
instituted whenever particular acts fall within the ambit of the
!224
 law punishing such. Their generic character means that
these remedies may be availed of in almost all acts
amounting to a violation of human rights, including the
particular cases of human rights violations given treatment in
this. However, two remedies, one under the general civil law
on damages and the other as provided in special law,
standout as among the instances where the violation of
human rights is treated as a wrongful act warranting
redness.
!B. ACTION FOR DAMAGES UNDER THE CIVIL CODE
(ARTICLE 32)
1. Nature and quantum of evidence required.
!Under Article 32 of the Civil Code, an independent action for
damages may be maintained for the violation of a person’s
civil and political rights.
!It being an independent action, it can be instituted separately
from, and without prejudice to the filing of, a criminal action
in cases where the violation would also qualify as a
criminally punishable act.
!Further, it being a civil action, the quantum of evidence required
!2. Byforwhom
it to be granted by the courts is mere preponderance.

!Any person filed.

whose civil and political rights and liberties as
enumerated in paragraph (4) below have been directly or
indirectly obstructed, defeated, violated, or in any manner
impede or impaired.
!3. Against whom filed.
!4.Any public officer or employee or any private individual.

Grounds to be alleged (elements of cause of action).

!• That the person bringing suit has the right to enjoy, under the
law, civil and/or political rights and/or liberties.
!
• That the person being sued has a duty under the law to respect
the exercise of such civil and/or political rights and/or
liberties
!
!225
• That, despite this duty, the person being sued directly or
indirectly obstructed, defeated, violated, or in any manner of
impeded or impaired such civil and/or political rights and/ or
liberties.
!• That the civil and/or political rights and/or liberties obstructed,
defeated, violated or in any manner impeded or impaired
falls under enumeration in Article 32 of the Civil Code:
!o Freedom of religion
!
o Freedom of speech
!o Freedom to write for the press or to maintain a periodical
publication
!o Freedom
!o Freedom from arbitrary or illegal detention

of suffrage
!o The right against deprivation of property without due process
of law
!o The right to just compensation when property is taken for
!o Thepublic use

!o The right to equal protection of the laws

right to be secure in one’s person, house, papers and

effects against unreasonable searches and seizures
!o The liberty of abode and of changing the same
!o The right to privacy of communication and correspondence
!o The right to become a member of associations and societies
!o Theforright
purposes not contrary to law

to take the part in a peaceable assembly and petition

the government for redress of grievances
!o The right to be free from involuntary servitude in any form
!o The right of the accused against excessive bail
!
!226
o The right of the accused to be heard by himself and counsel,
to be informed of the nature and cause of the accusation
against him, to have a speedy and public trial, to meet the
witnesses face to face, to have compulsory process to
secure the attendance of witnesses on his behalf;
!o Freedom from being compelled to be a witness against one’s
self, or from being forced to confess his guilt, or from being
induced by a promise of immunity or reward to make such
confession, except when the person confessing becomes a
State witness.
!o Freedom from excessive fines, or cruel and unusual
punishment, unless the same is imposed or inflicted in
accordance with a statute which has not been judicially
declared unconstitutional;
!o Freedom of access to the courts
!• That as a consequence of such obstruction, defeat, violation,
impediment or impairment, the person bringing suit has
sustained actual and moral injuries, provided, that if such
obstruction, defeat, violation, impediment or impairment was
done in a wanton, reckless, and malicious manner,
exemplary damages may rightfully be claimed and awarded.
!
5. Relief that may be granted.
!The victim filing the complaint may be indemnified at the
discretion of the courts by way of moral damages and, in
cases warranting it, exemplary damages.
!C. FILING A CLAIM BEFORE THE BOARD OF CLAIMS OF
THE DEPARTMENT OF JUSTICE UNDER THE VICTIM
COMPENSATION ACT (RA 7309)
!1. Legal basis
!a.A claim to be filed before the Board of Claims of the Department
of Justice is a right given by the law under the Victim
Compensation Act enacted in 1992.
!
b.The funds to be used for the satisfaction of awards brought
under this law shall be sourced from whatever amount may
be appropriate by Congress from the funds of the National
!227
 Treasury, the amount of five pesos set aside from each filing
fee in every civil case filed in court, 1% of net earnings of
PAGCOR and 1% of the proceeds of the sale of military
camps in Metro Manila. (Title I, Sec. 1 (e), IRR of RA 7309).
!• By whom filed.
! o Any person who was unjustly accused, convicted and
imprisoned but subsequently released by virtue of a
judgment of acquittal;
!o Any person who was unjustly detained and released without
!o Anybeing charged;

victim of arbitrary or illegal detention by the authorities as

defined in the Revised Penal Code under a final judgment of
the court; and
!o Any person who is a victim of violent crimes such “violent
!□Rape;crimes”
or
being defined by the law as including:

!
□ Offenses committed with malice which resulted in death or
serious physical and/or psychological injuries, permanent
incapacity or disability, insanity, abortion, serious trauma; or
!□Committed with torture, cruelty or barbarity.
!oThe heir of a person entitled to any award under this Act who
died or was incapacitated.
!• Procedure
!oIn case of aforperson
filing claims (Title III, Sec. 2, IRR of RA 7309)

who was unjustly accused, convicted and

imprisoned but subsequently released by virtue of a
judgment of acquittal, he must provide the following:
!➢A certified true copy of the judgment of acquittal;
!
➢Certified true copies of the commitment order and release from
confinement by the jail warden or prison authority concerned
releases
!
!228
o In case of a person who was unjustly detained and released
without being charged, he must provide the following:
!➢Any proof to show that he was unjustly detained without being
charged.
!oIn case of a victim of arbitrary or illegal detention by authorities
as defined in the Revised Penal Code under a final judgment
of the court he must provide the following:
!➢Certified true copy of the final judgment.
!oIn case of a person who is a victim of violent crimes, he must
!➢Anyprovide the following:

evidence that would prove that he is a victim of violent

crimes including but not limited to the certified true copy of
the report to the police or a doctor’s/psychiatrist’s certificate,
if necessary.
!oIf claimant is an heir, he shall also submit the following:
!➢Death certificate of the person entitled to an award or
government doctor’s certificate of incapacity;
!
➢Marriage certificate if claimant is the spouse;
!➢Birth certificate/s if claimant is a child/children; or,
!➢Proof of relationship that he/she is a parent, brother or sister.
!• Procedure for processing of claims (Title III, Sec 3, IRR of
!oAfterRAthe7309)
claim has been docketed and given a claim number, it
shall be assigned to an Evaluator who shall evaluate the
merits of the claim. Should there be a need to verify the
authenticity of the evidence presented, he shall direct an
investigation thereof;
!oThe investigator shall submit his report to the Evaluator within
five days from assignment. The Evaluator shall submit his
recommendation to the Board within ten days from the
submission of the investigator’s report;
!
!229
o The Board shall resolve the claim within thirty working days after
the filing of the application; and,
!oWithin fifteen days from receipt of the resolution of the Board, an
aggrieved claimant may appeal to the Secretary of Justice
whose decision shall be final and executor.
!• Time period (Title III, Sec. 1, IRR of RA 7309)
!oA claim under the victim Compensation Act should be brought
within 6 months from being released from imprisonment or
detention, or
!oWithin 6 months from the date the victim suffered damage or
!• Reliefinjury.
that may be granted
! o Victims of unjust imprisonment or detention may be
compensated based on the number of months of
imprisonment or detention and every fraction thereof shall be
considered one month.
!o Any compensation in such cases, however cannot exceed the
!o Foramount of P1,000 pesos per month.

all other cases, the maximum amount of compensation

that may be granted by the Board of Claims shall not exceed
P10,000.00 pesos or the amount necessary to reimburse the
claimant the expenses incurred for hospitalization, medical
treatment, loss of wage, loss of support or other expenses
directly related to injury, whichever is lower.
!o The availment of compensation under RA 7309 is without
prejudice to the right of the claimant to seek other remedies
under existing laws (therefore, the claimant can still claim
damages or file any other action when justified under law)
!Special Section on Prosecuting Violations of the National
Internal Revenue Code (NIRC) And Related Laws Special
Section on Prosecuting Violations of the National
Internal Revenue Code (NIRC) and Related Laws
!I. POINTERS IN THE PROSECUTION OF TAX CASES
!
!230
1. The prosecutor shall interview tax investigators and witnesses
to gain an overall understanding of the nature of the dispute,
the facts giving rise to and surrounding the dispute.
!2. The prosecutor shall acquire additional information from
witnesses to which may not have been related to him by the
investigator. (Goldstein, Trial Technique, p. 226)
!3.The prosecutor shall find out whether the witness (informant,
asset, etc.) has any interest on the outcome of the action;
and
!4. The prosecutor shall endeavor to find out other circumstances
that may affect the competency and credibility of the
witnesses. (Elliot, The Work of the Advocate, p. 6.)
!5. The prosecutor shall determine, as far as practicable, what laws
and jurisprudence are applicable in the case and how they
are applicable to the set of facts as relayed by the
investigator and witnesses.
!6. The prosecutor shall create a theory of the case which is
defined as the framework for the presentation of the facts
and law, (Trial Preparation, David Broad, p.2) or a
comprehensive and orderly mental arrangement of principles
and facts, conceived and constructed for the purpose of
securing a judgment or decree of a court in favor of a litigant.
(Elliot, 1 General Practice, Sec. 39)
!7. In the preparation of the witnesses, it is improper for
prosecutors to “coach” a witness respecting the evidence
which he or she will give, However, it is important that
prosecutors understand and appreciate fully the nature of
the evidence in tax cases which the witness will give on the
issues.
!8. The prosecutor shall prepare the trial brief pursuant to DOJ
Department Circular No. 47, s. 2000.
!9. In organizing the exhibits, the prosecutor shall, if possible, put
them in a clear book. The original should be on one side and
the photocopy on the other.
!!
II. INSTITUTION OF CRIMINAL CASES
!231
!The initiation of a criminal action involving violation of the
National Internal Revenue Code (NIRC) and other laws
enforced by the Bureau of Internal Revenue (BIR) must bear
the authority/approval of the Commissioner of Internal
Revenue.
!All criminal actions wherein the amount of taxes and fees
involved is One Million pesos ( Php 1,000,000.00) or more
shall be filed before the Court of Tax Appeals (CTA) in the
exercise of its original jurisdiction.
A. Prosecution of Criminal Actions
!The prosecution of violations of the National Internal Revenue
Code (NIRC) or related laws may be conducted by the duty
deputized legal officers of the BIR under the direct control
and supervision of the public prosecutor.
!B. Bail
!The recommended bail shall be in accordance with the DOJ Bail
Bond Guide.
!C. Pre-Trial
!The parties may not be allowed to compromises the criminal
liability or submit the case to mediation, attribution or other
mode of alternative dispute resolution.
!III. COMMON TAX OFFENSES (UNDER THE NIRC)
!A. Sec. 254. Attempt to Evade or Defeat Tax.- Any person who
willfully attempts in any manner to evade or defeat any tax
imposed under this Code or the payment thereof shall, in
addition to other penalties provided by the law, upon
conviction thereof, be punished by a fine not less than Thirty
thousand pesos (P30,000) but not more than One hundred
thousand pesos (P100,000) and suffer imprisonment of not
less than two (2) years but not more four (4) years: Provided,
that the conviction or acquittal obtained under this section
shall not be a bar to the filling of a civil suit for the collection
of taxes.
!1. Elements of Sec.254:
!
!232
 a. A tax imposed under the Tax Code;
!
b. A person, natural or juridical, is liable to that tax; and
!c. Such person willfully attempts in any manner to evade or
defeat any tax imposed under the NIRC or the payment
thereof
!2. Tax evasion connotes the integration of three factors:
!a. The end to be achieved, i.e., the payment of less than that
known by the taxpayers to be legally due, or the non-
payment of tax when it is shown that a tax is due;
!
b. An accompanying state of mind which is described as being
“evil,” in “bad faith,”” willfully,” or “deliberate and not
accidental,” and a course of action or failure of action which
is unlawful. (Commissioner of Internal Revenue vs. Estate of
Benigno Toda, Jr. (GR No. 147188.September 14, 2004)
!3. Documentary Evidence Required:
!a. Securities and Exchange Commission (SEC) Certificate of
Registration, Articles of Incorporation & By-Laws or Articles
of Partnership (in case of a corporation)
!
b. Corporate documents showing signature/ participation in the
conduct of business
!c. General Information Sheet showing the identity of the
!c.1.corporate
partner
officers as enumerated in Sec. 253 (d):

c.2. president
c.3. general manager
c.4. branch manager
c.5. treasurer
c.6. officer-in-charge
c.7. employees responsible for the violation

d. Tax Return of the taxpayer

e. BIR registration (Integrated Tax System [ITS]/RDO
certification) to show that the person is a registered taxpayer
!
!233
 f. Deeds of Conveyance &Certificate Authorizing Registration (in
case of One-Time Transaction [ONETT])
!g. Contracts
!h. Mayors Permit
!i. Department of Trade and Industry (DTI) registration (if sole
proprietorship)
!j. Proof of income received or documents to show source of
income
!k. Any other documents showing participation/involvement of
other persons in the commission of the offense
!l. Third Party Certification (original or if unavailable, certified true
copy)
!m. Certification from the district, region or ITS showing existence
or non existence of return
!n. Fraudulent
!n.1. In case ofScheme:
ONETT, 2 or more Deeds of Conveyance
n.2. Using dummy/ies
n.3. Using fake Certificate Authorizing Registration (CAR) to
commit tax evasion
!o. Badges of Fraud:
! o.1. international and substantial understatement of taxable
income as shown in the returns, financial statements,
balance sheet, or deeds of conveyance showing receipt of
income (under declaration of income);
!o.2. international and substantial overstatement (over-claiming) of
deductions or exemptions as shown in returns, financial
statements, balance sheets, invoices;
!o.3. any act or recurrence of the foregoing or similar
circumstances (Vitug, citing Collector vs. Reyes)
!o.4. recurrence of failure to perform legal obligation, i.e., obligation
to file return, pay tax, withhold tax, remit tax, supply correct
!234
 and accurate information, refund excess taxes withheld on
compensation
!o.5. making it appear that one has filed a return or actually filing a
return and subsequently withdraws the same after securing
the official receiving seal or stamp
!o.6. securing or use of multiple or different TINs
!o.7. in case of ONETT, price/consideration in the deed
inconsistent with return or the CAR to transfer property
!o.8. other schemes to prove intent to evade tax
!o.9. Computation showing substantial under- declaration or
substantial overstatement as stated in:
!sec. 248. Civil Penalties. – (B) In case of willful neglect to file the
return within the period prescribed by this Code or by rules
and regulations, or in case a false or fraudulent return is
willfully made, the penalty to be imposed shall be fifty
percent (50%) of the tax or of the deficiency tax in case any
payment has been made on the basis of such return before
the discovery of the falsity or fraud: Provided, that a
substantial under declaration of taxable sales, receipts or
income, or a substantial overstatement or deductions, as
determined by the Commissioner pursuant to the rules and
regulations to be promulgated by the Secretary of Finance,
shall constitute prima facie evidence of a false or fraudulent
return: Provided, further, That failure to report sales, receipts
or income in an amount exceeding thirty percent (30%) of
that declared per return, and a claim of deductions in an
amount exceeding (30%) of actual deductions, shall render
the taxpayer liable for substantial under declaration of sales,
receipts or income or for overstatement of deductions, as
mentioned herein.
!B. Sec. 255. Failure to File Return, Supply Correct and
Accurate Information, Pay Tax Withheld and Remit Tax
and Refund Excess Taxes Withheld on Compensation. –
Any person required under this Code or by rules and
regulations promulgated there under to pay any tax make a
return, keep any record, or supply correct and accurate
information, who willfully fails to pay such tax, make such
return, keep such record, or supply correct and accurate
!235
 information, or withhold or remit taxes withheld, or refund
excess taxes withheld on compensation, at the time or times
required by law or rules and regulations shall, in addition to
other penalties provided by law, upon conviction thereof, be
punishable by a fine of not less than ten thousand pesos
(P10,000) and suffer imprisonment of not less than one (1)
year but not more than ten (10) years.
! Any person who attempts to make it appear for any reason
that he or another has in fact filed a return or statement, or
actually files a return or statement and subsequently
withdraws the same return or statement after securing the
official receiving seal or stamp of receipt of internal revenue
office wherein the same was actually filed shall, upon
conviction thereof, be punished by a fine of not less than Ten
thousand pesos (P10,000) but not more than twenty
thousand pesos (P20,000) and suffer imprisonment of not
less than one (1) year but not more than three (3) years.
!1. Elements of Sec. 255:
!a.A person is required under the Tax Code, or by rules and
regulations, to pay any tax, make a return, keep any record,
or supply correct and accurate information;
!
b.At the time or times required by ;aw or rules and regulations;
!c.Such person willfully fails to make such return, keep such
record, or supply such correct and accurate information, or
withhold or remit taxes withheld, or refund excess taxes
withheld on compensation; and
!d.As a result, such person failed to pay the correct tax.
! 2. Documentary Evidence Required:
!a.SEC Certificate of Registration, Articles of Incorporation & By-
Laws or Articles of Partnership (in case of a corporation)
b.Corporate documents showing signature/participation in the
conduct of business
!
c.General Information Sheet showing the identity of the corporate
officers as enumerated in Sec. 253 (d):
!c.1. partner
!236
c.2. president
c.3. general manager
c.4. branch manager
c.5. treasurer
c.6. officer-in-charge
c.7. employees responsible for the violate
!d.Tax Return of the taxpayer
!
e.BIR registration (Integrated Tax System [ITS]/RDO certification)

!f.Deedsto show that the person is a registered taxpayer

of conveyance & Certificate of Authorizing Registration (in

case of One-Time Transaction [ONETT])
!g.Contracts
!h.Mayor’s permit to show that business is in operation
!i. DTI registration (if sole proprietorship)
!j. DTI or SEC records to show existence of business operation
!k.Proof of income received or documents to show source of
!l. Any income
other documents showing participation/involvement of other
persons in the commission of the offense
!m.Notice of Informal Conference
!n.Preliminary Assessment Notice (PAN)
!o.Formal Letter of Demand & Final Assessment Notice (FAN)
!p.Pro-forma Protest, if there’s any
q.Certification from Collection and Enforcement Division (CED) of
no payment
!r.Tax Return
!s.Third Party Information (certification) to show income
!t.Other proof that income is received
!
!237
u.First/Second/Final request for presentation of books of
accounts/accounting records
!v.RDO Certification of no return filed
!w.Certificate of creditable withholding tax
!x.Certification from government agencies and/or private entities to
show income
!y.Financial
!z.Alpha Liststatements
from district, Withholding Tax Division or Large
Taxpayer Service
!aa.Computation of tax liability
!3. Expenditure Method/Net Worth Method – requirement of
opening net worth
!• Revenue Audit Memorandum Order No. 1-2000
!
4. Revised Penal Code Provision on Malversation in relation

!“Art. to217.Willful Failure to Remit

Malversation of public funds or property. –

Presumption of Malversation. – Any public officer who, by
reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same or shall take or
misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public
funds, or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such funds
or property xxx xxx xxx”
!a.The provisions of Art. 217 shall apply to:
!
a.1. Private individuals who, in any capacity whatsoever, have
charge of national, provincial or municipal funds, revenues or
property; and
!a. 2. Any administrator or depository of funds or property attached,
sized or deposited by public authority.
!b.Elements of Art. 217:
!238
 !
b.1. Offender is an accountable public officer;
!b.2. That he had the custody or control of funds or property by
reason of the duties of his office;
!b.3. That those funds or property were public funds or declared by
law with public character; and
!b.4. That he appropriated, took, misappropriated or consented or,
through abandonment or negligence, permitted another
person to take them.
!5. Art. 222. Officers included in the preceding provisions. –
The provisions of this chapter shall apply to private
individuals who in any capacity whatever, have charge of
any insular (now national), provincial, or municipal funds,
revenues, or property or to any administrator or depository of
funds or property attached, seized, or deposited by public
authority, even if such property belongs to a private
individual
!• Tax Code Provisions on Willful Failure to Remit in relation to
RPC Provision on Malversation
!
o Secs.58 and 81
!C. Sec. 257 (B)(8) – Knowingly Uses Fake Certificate
!Sec.Authorizing Registration

257. Penal Liability for Making False Entries, Records or

Reports, or Using Falsified or Fake Accountable Forms.
!(B) Any person who:
Xxx
!(8) Willfully attempts in any manner to evade or defeat any tax
imposed under this Code, or knowingly uses fake or falsified
revenue official receipts, Letters of Authority, certificates
authorizing registration, Tax Credit Certificates, Tax Debit
Memoranda and other accountable forms shall, upon
conviction for each act or omission, be punished by a fine
not less than Fifty thousand pesos (P50,000) but not more
than One hundred thousand pesos (P100,000) and suffer

!239
 imprisonment of not less than two (2) years but not more
than six (6) years.
!1. Elements of Sec. 257 (B)(8):
!a.Any person, natural or juridical; and
!
b.He knowingly uses fake or falsified revenue official receipts,
Letters of Authority, certificates authorizing registration, Tax
Credit Certificates, Tax Debit Memoranda and other
accountable forms.
!
2. Documentary Evidence Required
!a.SEC Certificate of Registration, Articles of Incorporation & By-
Laws or Articles of Partnership (in case of a corporation)
!
b.Corporate documents showing signature/participation in the
conduct of business
!c.General Information Sheet showing the identity of the corporate
officers as enumerated in Sec. 253 (d):
!c.1. partner
c.2. president
c.3. general manager
c.4. branch manager
c.5. treasurer manager
c.6. officer-in-charge
c.7. employees responsible for the violation
!d.Tax Return of the taxpayer
!
e.BIR registration (Integrated Tax System (ITS)/RDO certification)

!f.Deedsto show that the person is a registered taxpayer

of Conveyance & Certificate Authorizing Registration (in

case of One-Time Transaction [ONETT])
!g.Contracts
!h.Mayor’s permit to show that the business is in operation
!i. DTI registration (if single proprietorship)
!
!240
j. DTI or SEC records to show existence of business/operation
!k.Proof of income received or documents to show sources of
!l. Any income other documents showing participation/involvement of other
persons in the commission of the offense (conspirators)
!m.Revenue official receipts
!n.Letter of authority
!o.Certificate Authorizing Registration
!p.Tax credit Certificates
!q.Tax Debit Memoranda and other accountable forms
!r.Certification from district, region, ITS as to authenticity of tax
forms
!s.Register
!t.Deeds of ofConveyance
Deeds documents

!u.Contracts
!v.Other documents to show that there was a fraudulent scheme
adopted to produce or use a falsified CAR or other forms.
!
3. Revised Penal Code Provision on Falsification in relation to

!Art. Sec. 257 (B) (8) of the NIRC

172. Falsification by private individuals and use of

falsified documents – The penalty of prision correctional in
its medium and maximum periods and a fine of not more
than 5,000 pesos shall be imposed upon:
!1. Any private individual who shall commit any of the falsification
enumerated in the next proceedings article in any public or
official document of letter of exchange or any other kind of
commercial document; and

xxx xxx xxx

!
!241
 Any person who shall knowingly introduce in evidence in any
judicial proceeding or to the damage of another or who, with
the intent to cause such damage, shall use any of the false
documents in the next preceding article or in any of the
foregoing subdivisions of this article, shall be punished by
the penalty next lower in degree.
!a. Elements of Paragraph 1 (Falsification of public, official or
commercial document by a private individual):
!a.1. That the offender is a private individual or a public officer or
employee who did not take advantages of his official
position;
!a.2. That he committed any of the acts of falsifications enumerated
in Art. 171; and
!a.3. That the falsification was committed in a public or official or
commercial document.
!b. Elements of the Last Paragraph (Use of Falsified
Document):
!b.1. That the offender knew that a document was falsified by
another person;
!b.2. That the false document is embrace in Art. 171 or in any of
the subdivision No. 1 or 2 of Art. 172;
!b.3. That he used such document (not in judicial proceedings);
and
!
b.4. That the use of the false document caused damage to
another or least, it was with intent to cause such damage.

• Note (p. 247, Revised Penal Code by Luis B. Reyes):

!
If the one who used the falsified document is the same person
who falsified it, the crime is only falsification and the use of
the same is not a separate crime. The user of the falsified
document is deemed the author of the falsification, if (1) the

!242
 use was so connected in time with the falsification, and (2)
the user had the capacity of falsifying the document

!
D. Sec. 258. Unlawful Pursuit of Business. – Any person who
carries on any business for which an annual registration fee is
imposed without paying the tax (fee) as required by law shall,
upon conviction for each act or omission, be punished by a
fine of not less than Five thousand pesos (P5,000.00) but not
more than Twenty thousand pesos (P20,000) and suffer
imprisonment of not less than six (6) months but not more than
two (2) years; Provided, that in the case of a person engaged
in the business of distilling, rectifying, repacking, compounding
or manufacturing any article subject to exercise tax, he shall,
upon conviction for each act or omission, be punished by
confinement of not less than Thirty thousand pesos (P30,000)
but not more than Fifty thousand pesos (P50,000) and suffer
imprisonment of not less than two (2) years but not more than
four (4) years.

!
1. Elements of Sec. 258:

!
a.A person, natural or juridical, carries on any business for which
an annual registration fee is imposed; and

!
b. Such person did not pay the required annual registration fee

!
2. Documentary Evidence Required:

a. SEC Certificate of Registration, Articles of Incorporation & By-

Laws or Articles of Partnership (in case of a corporation)

!
!243
b. Corporate documents showing signature/participation in the
conduct of business

!
c. General Information Sheet showing the identity of the corporate
officers as enumerated in Sec. 253 (d):

!
c.1. partner

c.2. president

c.3. general manager

c.4. treasurer

c.5. branch manager

c.6. treasurer

c.7. officer-in-charge

c.8. employees responsible for the violation

!
d. Deeds of Conveyance & Certification Authorizing Registration
(in case of One Time Transaction [ONETTA])

!
e. Contracts

!
f. Mayor’s permit to show that business is in operation

!
g. DTI registration (if sole proprietorship)

!
!244
h. DTI or SEC records to show existence of business/operation

!
i. Proof of income received or documents to show source of
income

!
j. Any other documents showing participation/involvement of
other persons in the commission of the offense

!
k. Certification from district, region, ITS that person conducting
business is not a registered taxpayer or that no payment of
annual registration fee has been made

l. Third Party Information

!
m. Proof of conduct of business

!
n. Ocular Inspection

!
o. Certification from Collection and Enforcement Division

!
p. No official receipt registered with the BIR

!
6. Related Tax Code Provision: Sec: 236

!
E. Sec. 267. Declaration under Penalties of Perjury. - Any
declaration, return and other statement required under this

!245
 Code, shall in lieu of an oath, contain a written statement that
they are made under penalties of perjury. Any person who
willfully files a declaration, return or statement containing
information which is not true and correct as to every material
matter shall, upon conviction, be subject to the penalties
prescribed for perjury under the Revised Penal Code.

!
1. Elements of Sec. 267:

!
a. There is a declaration, return and other statement required
under this Code, which, in lieu of an oath, contains a written
statement that they are made under the penalties of perjury;

!
b. Any person, natural or juridical, willfully files a declaration,
return or statement containing information which is not true
and correct; and

!
c. Such untrue or incorrect statement/s is/are a material matter/s

!
2. Documentary Evidence Required:

!
a. SEC Certificate of Registration, Articles of Incorporation & By-
laws or Articles of Partnership (in case of a corporation)

b. General Information Sheet showing the identity of the corporate

officers as enumerated in Sec. 253 (d):

!
b.1. partner

!246
 b.2. president

b.3. general manager

b.4. treasurer

b.5. branch manager

b.6. treasurer

b.7. officer-in-charge

b.8. employees responsible for the violation

!
c. Deeds of Conveyance & Certification Authorizing Registration
(in case of One Time Transaction [ONETT])

!
d. Contracts

!
e. DTI registration (if sole proprietorship)

!
f. Tax Return

!
g. Proof of income

!
h. Certificate from district, region, ITS

!
i. Financial Statements

!
!247
j. Third Party Information

!
F. Sec. 236 (J), last par.- Securing More Than One TIN

!
Sec. 236. Registration Requirements. (J) Supplying a
‘Taxpayer Identification Number (TIN).- Any person
required under the authority of this Code to make, render or
file a return, statement or other document shall be supplied
with or assigned a Taxpayer Identification Number (TIN)
which he shall indicate in such return, statement or document
filed with the Bureau of Internal Revenue for his proper
identification for tax purposes, and which he shall indicate in
certain documents, xxx

xxx xxx xxx

Only one Taxpayer Identification Number (TIN) shall be

assigned to a taxpayer. Any person who shall secure more
than one Taxpayer Identification Number shall be criminally
liable under the provision of Sec. 275 on Violation of Other
Provisions of this Code or Regulations in General

!
Sec. 275. Violation of Other Provision of this Code or Rules and
Regulations in General.- Any person who violates any
provision of this Code or any rule or regulation promulgated
by the Department of Finance, for which no specific penalty is
provided by law shall, upon conviction for each act or
omission, be punished by a fine of not more than One
thousand pesos (P1,000) or suffer imprisonment of not more
than six (6) months, or both.

!
!248
1. Elements of Sec.236 (J):

!
a. Any person, natural or juridical, is a registered taxpayer;

b. Such person was assigned a TIN; and

c. Such person secured another TIN.

!
2. Documentary Evidence Required

!
a. RDO Certification to show that taxpayer is registered with the
BIR with the TIN assigned

!
b. Certification from ITS of the TIN being used/assigned

!
c. Certification from ITS of another TIN secured

!
d. Documents to show other TIN/s secured

!
IV. RELEVANT JURISPRUDENCE IN ESTABLISHING INTENT
AND WILLFULNESS IN TAX CASES

!
A. Intent/Willfulness in Criminal Law

!
1. Mens Rea- Mental element of the offense that accompanies the
criminal act.

!249
 !
2. Actus non facit reum nisi mens sit rea- “the act does not make
a person guilty unless the mind is also guilty.”

!
3. Intent/willfulness is generally equated with malice, especially as
regards crimes under the Revised Penal Code (RPC).

!
a. It has been said that while the word “willful” sometimes means
little more than intentionally or designedly, yet it is more
frequently understood to extend a little further and
approximate the idea of the milder kind of legal malice;
that is; it signifies an evil intent without justifiable
excuse. In one case it was said to mean, as employed in a
statute in contemplation, “wantonly” or “causelessly;” in
another, ”without reasonable grounds to believe the thing
lawful.” And Shaw, C.J., once said that ordinarily in a statute
it means “not merely ‘voluntarily’ but with a bad purpose; in
other words, corruptly.” In English and the American statutes
defining crimes “malice,” “malicious,” “maliciously,” and
“malice aforethought” are words indicating intent, more
purely” the word “malice” not often being understood to
require general malevolence toward a particular individual,
and signifying rather the intent from our legal justification.

!
[U.S vs. Ah Chong, GR No. L-5272, 19 March 1910 (15 Phil. 488)

!
b. Generally, malice or intent is deemed irrelevant in special penal
laws as the Latter are considered mala prohibita.
Nevertheless, if specific intent is required, the same must be
proved.

!
!250
4. Intent/Willfulness as an element of certain violations of the
NIRC.

!
a. Sec. 254. Attempt to Evade or Defeat Tax.- “Any person who
willfully attempts in any manner to evade or defeat any tax
imposed under this Code or the payment thereof shall xxx be
punished xxx”

!
b. Sec.255. Failure to File Return, Supply Correct and
Accurate Information, Pay Tax, Withhold and Remit Tax
and Refund Excess Taxes Withheld on Compensation.-
“Any person required under this Code or by rules and
regulations promulgated there under to pay any tax, make a
return, keep any record, or supply correct and accurate
information, who willfully fails to pay such tax, make a such
return, keep such record, or supply such correct and accurate
information, or withheld on compensation, at the time or times
required by law or rules and regulations, shall xxx be
punished xxx”

!
c. Sec.257 Penal Liability for Making False Entries, Records
or Reports, or Using Falsified or Fake Accountable
Forms

c.1. Willfully falsifies any report or statement bearing on any

examination or audit xxx

!
c.2. Willfully attempts in any manner to evade or defeat any tax
imposed xxx

!
!251
B. Philippine Jurisprudence on Intent/Willfulness in Tax
Cases

!
1. Supreme Court Decisions

!
a. Aznar vs. CTA ( GR No. L-20569, 23 August 1974, 58 SCRA
519)

a.1. While this is not a criminal case, the Supreme Court (SC) had
an opportunity to discuss what constitutes fraudulent intent.
The petitioner was questioning the assessment of deficiency
tax and imposition of surcharge. There was a substantial
difference found between the amounts of net income on the
face of the returns as filed by petitioner in the years 1946 to
1951 and the net income as determined by the inventory
method utilized by respondents for the same years.

!
a.2. The SC ruled:

!
“Such a basis [inventory method] for determining the existence
of fraud (intent to evade payment of tax) suffers from an
inherent flaw when applied to this case. x x x [I] t was not only
Mr. Matias H. Aznar who committed mistakes in his income
but also the respondent Commissioner of Internal Revenue
who committed mistakes in his use of the inventory method to
determine the petitioner’s tax liability. The mistakes
committed by the Commissioner of Internal Revenue which
also involved very substantial amounts were also repeated
yearly, and yet we cannot presume therefrom the existence of
any taint of official fraud.

!
!252
 From the above exposition of facts, we cannot but emphatically
reiterate the well established doctrine that fraud cannot be
presumed but must be proven. As a corollary thereto, we can
also state that fraudulent intent could not be deduced
from mistakes however frequent they may be, especially
if such mistakes emanate from erroneous entries or
erroneous classification of items in accounting methods
utilized for determination of tax liabilities. The
predecessor of the petitioner undoubtedly filed his income tax
returns for the years 1946 to 1951 and those tax returns were
prepared for him by his accountant and employees. It also
appears that petitioner in his lifetime and during the
investigation of his tax liabilities cooperated readily with the
B.I.R. and there is no indication in the record of any act of bad
faith committed by him.

The lower court’s conclusion regarding of fraudulent intent to

evade payment of taxes was based merely on a presumption
and not on evidence establishing a willful filing of false and
fraudulent returns so as to warrant the imposition of the fraud
penalty. The fraud contemplated by law is actual and not
constructive. It must be intentional fraud, consisting of
deception willfully and deliberately done or resorted to in
order to induce another to give up some legal right.
Negligence, whether slight or gross, is not equivalent to
the fraud with intent to evade the tax contemplated by the
law. It must amount to intentional wrong-doing with the
sole object of avoiding the tax. It necessarily follows that
a mere mistake cannot be considered as fraudulent
intent, and if both petitioner and respondent Commissioner of
Internal Revenue committed mistakes in making entries in the
returns and in the assessment, respectively, under the
inventory method of determining tax liability, it would be unfair
to treat the mistakes of the petitioner as tainted with fraud and
those of the respondent as made in good faith.” (Emphasis
and underscoring supplied.)

!
!253
b. Ungab vs. Cusi (GR No. L-41919-24, 30 May 1980)

!
b.1. This is a criminal case for filing a fraudulent tax return, failure
to render a true and complete return and engaging in
business without first paying the annual fixed or privilege tax.
However, the case did not discuss the guilt or innocence of
the accused, but tackled the authority of the prosecutor and
the jurisdiction of the court.

!
b.2. The following are the relevant pronouncements of the SC
on intent and willfulness:

!
“The contention is made, and is here rejected, that an
assessment of the deficiency tax due is necessary before the
taxpayer can be prosecuted criminally for the charges
preferred. The crime is complete when the violator has, as in
this case, knowingly and willfully filed fraudulent return with
intent to evade and defeat a part or all of the tax.” An
assessment of a deficiency is not necessary to a criminal
prosecutor for willful attempt to defeat and evade the income
tax. A crime is complete when the violator has knowingly and
willfully filed a fraudulent return with intent to evade and
defeat the tax. The perpetration of the crime is grounded
upon knowledge on the part of the taxpayer that he has
made an inaccurate return, and the government’s failure to
discover the error and promptly to assess has no connections
with the commission of the crime.”(Citing Merten’s Law of
Federal Income Taxation, Vol. 10, Sec. 55A.05, p.21
[Underscoring and emphasis supplied)]

!
c. CIR vs. Javier (GR No. 78953, 31 July 1991, 199 SCRA 824)

!254
 c.1. Again, this is not a criminal case. The controversy basically
revolves around the assessment of deficiency tax and
imposition of surcharge. The taxpayer was the recipient of
some money from abroad which he presumed to be a gift but
the amount was actually erroneously remitted to his account.
In his income tax return, the taxpayer put a footnote stating
the above and the fact that the amount is now subject to
litigation.

!
c.2. The SC cited the ruling in the Aznar case as regards fraud
and held: “In the case at bar, there was no actual and
intentional fraud through willful and deliberate misleading of
the government agency concerned, the Bureau of Internal
Revenue, headed by the herein petitioner. The government
was not induced to give up some legal right and place itself at
a disadvantage so as to prevent its lawful agents from proper
assessment of tax liabilities because Javier did not conceal
anything. Error or mistake of law is not fraud. The petitioner’s
zealousness to collect taxes from the unearned windfall to
Javier is highly commendable. Unfortunately, the imposition of
the fraud penalty in this case is not justified by the extant
facts. Javier may be guilty of swindling charges, perhaps
even for greed by spending most of the money he received,
but the records lack a clear showing of fraud committed
because he did not conceal the fact that he had received
an amount of money although it was a “subject of
litigation.” (Emphasis and underscoring supplied.)

!
d. CIR vs. CA (GR No. 119322, 04 June 1996, 257 SCRA 200)

!
d.1. A criminal case was filed against Fortune Tobacco (“Fortune”)
for alleged fraudulent tax evasion for supposed non-payment
of the correct amount of income tax, ad valorem tax and
value-added tax for the year 1992. The fraudulent scheme
allegedly adopted by Fortune consisted of making fictitious
!255
 and simulated sales of Fortune’s cigarette products to non-
existing individuals and to entities incorporated and existing
only for the purpose of such fictitious sales by declaring
registered wholesale prices, which are required for
determination of Fortune’s correct income and tax liabilities.
Fortune sought the injunction of the preliminary investigation.

!
d.2 The SC held

“Willful” means “pre-meditated; malicious; done with

intent, or with bad motive or purpose, or with indifference
to the natural consequence xxx.” “Fraud” in its general
sense, “is deemed to comprise anything calculated to deceive
to comprise anything calculated to deceive, including all acts,
omissions, and concealment involving a breach of legal or
equitable duty, trust or confidence justly reposed, resulting in
the damage to another, or by which undue and
unconscionable advantage taken of another.

!
Fraud cannot be presumed. If there was fraud or willful attempt
to evade payment of ad valorem taxes by private respondents
through the manipulation of the registered wholesale price of
cigarettes, it must have been with the connivance of
cooperation of certain BIR officials and employees who
supervised and monitored Fortune’s production activities to
see to it that the correct taxes were paid. But there is no
allegation, much less evidence, of BIR personnel’s
malfeasance.” (Emphasis supplied)

!
d.3. The SC further clarified the ruling in Ungab vs. Cusi, to wit:

!
!256
 “In plain words, for criminal prosecution to proceed before
assessment, there must be a prima facie showing of a willful
attempt to evade taxes. There was a willful attempt to evade
tax in Ungab because of the taxpayer’s failure to declare in
his income tax return his income derived from banana
saplings. In the mind of the trial court and the Court of
Appeals, Fortune’s situation is quite apart factually since
the registered wholesale price of the goods, approved by
the BIR, is presumed to be the actual wholesale price,
therefore, not fraudulent and unless and until the BIR has
made a final determination of what to be the correct taxes, the
taxpayer should not be placed in the crucible of criminal
prosecution.” (Underscoring and emphasis supplied)

!
2. Court of Tax Appeals (CTA) Decisions

!
a.1. The case focuses on the propriety of the assessment of
deficiency taxes and the imposition of surcharge and is not
actually a criminal case. Nonetheless, the CTA had the
opportunity to discuss what constitutes willful neglect in the
filing of returns and payment of taxes, as follows:

!
“To our mind, there was willful neglect to file the corporate
income tax returns required by law on the part of petitioners
because, as borne out by the records, both petitioners
Mariano P. Pascual and Renato P. Dragon did not file
separate individual income tax returns for 1968 reporting their
respective share of the profits realized by them in said year
from their real estate transactions.(p. 28, Bureau of Internal
Revenue records.) If petitioners did not even bother report
their share of the profits derived by them from their buying
and selling transactions, why should they take the trouble of
filing corporate income tax return for their partnership? But
assuming that for the year 1968 petitioners were not yet
aware that they are taxable as an unregistered partnership
!257
 subject to corporate income tax, they could at least have filed
their separate individual income tax returns for this year. It
seems clear therefore that there was intentional
wrongdoing with the object of avoiding the tax on the
part of petitioners.” (Emphasis and underscoring supplied.)

!
b. Sevilla, Son, Ruben Tiu, Ben Tiu Jerry Tui vs. CIR (C.T.A. Case
No. 6211, 04 October 2004)

!
b.1. This is likewise not a case and is actually criminal a suit
questioning the assessment of deficiency capital gains tax.
Deeds of Assignment of shares were compared with capital
gains tax returns.

b.2. The CTA ruled:

!
“Clearly from the foregoing, there was an overstatement of the
acquisition cost in the sum of P53,685,000.00 for which the
capital gains tax due thereon was not paid by the petitioners.
Because of the deliberate overstatement of the cost of
acquisition of the subject shares of stocks by the petitioners,
the tax base was lessened which ultimately led to a lower
capital gains tax due. In other words, when petitioners
intentionally overstated the cost of acquisition of the said
shares in their capital gains tax returns, they willfully
evaded the payment of correct taxes thereby denying or
depriving the government the right to collect the exact
taxes due from petitioners’ stock transactions.
Furthermore, it is noteworthy that exce[t for the objection that
the Deeds of Assignment were not best evidence nor
secondary evidence, petitioners failed to rebut the allegation
of overstatement of the cost of acquisition in the capital gains
tax return. Petitioners during the investigation and during the

!258
 trial of the case did not present evidence to justify their
declaration of the cost of acquisition in the capital gains tax
returns filed with the Bureau of Internal Revenue.” (Emphasis
and underscoring supplied.)

!
c. People vs. Mallari (C.T.A. Crim. Case Nos. A-1 & A-2, 04
September 2006)

!
c.1. This is a criminal case for failure to pay deficiency income tax
and value added tax.

!
c.2. According to the CTA:

!
“The Supreme Court had ruled that the word willful in a statute
means ‘not merely voluntary but with a bad purpose; in other
words, corruptly’ and that a voluntary act is a free, intelligent,
and intentional act.

!
Having as premises the knowledge of the accused-appellant
that there are assessment notices issued against him (the
existence of which was admitted by the accused during the
hearing held on December 7, 2000 32) which were proven to
have been sent by registered mail (Exhibit “J”); that he
received the Warrant of Distraint and Levy (Exhibit “K”) and
the Demand Letter (Exhibit “D”) demanding payment of the
deficiency taxes stated in the assessment notices; and the
fact that he admitted that he ignored the demand for payment
of the deficiency taxes, there is no other conclusion that can
be drawn except that the accused-appellant willfully did
not pay his deficiency tax liabilities. Furthermore, accused-
appellant’s admission that he paid P50,000 to two BIR
Regional District Office employees to settle his tax liabilities
!259
 without asking for any receipt reveals a conscious effort to
evade his 1993 tax liabilities. The act of bribing the BIR
employees constitutes an overt act on the part of
accused-appellant that showed his deliberate and willful
refusal to pay his deficiency tax liabilities to government.
He resorted to bribery instead of fulfilling his legal obligation
of paying his deficiency taxes.” (Emphasis and underscoring
supplied.)

!
3. Regional Trial Court (RTC) Decision

!
a. People vs. Imelda Marcos (Crim. Case Nos. Q-91-24382-83,
91-24388-89, and 91-24392, 20 April 2007)

!
a.1 Several criminal cases were filed against respondent for:

!
• Failure to pay income tax;

• Failure to give a written notice of death;

• Failure to pay estate taxes;

• Failure to file income and estate taxes returns

a.2.The court took judicial notice of the fact that the Marcoses
were forcibly evicted from the country and brought to Hawaii
in 1986, leaving most of their personal properties under the
possession and control of the government.

a. 3. The RTC held:

“As the defense contended, the Marcoses were totally isolated

from the rest of the world. They were not afforded means of
communication and transportation and were not allowed to
receive visitors. Thus, it was really impossible for the accused
!260
 to have complied with the requirement of filing and paying any
of her tax obligations. Likewise, even though she wanted to
do so, their sudden departure from the country prevented the
accused from bringing her personal record and documents
with which she could assess or determine her income for the
year 1985 to prepare her income tax return… Consequently,
failing on the part of the prosecution to substantiate through
competent evidence that accused Mrs. Imelda Marcos
willfully, unlawfully and feloniously neglected to file and pay
[an] income tax return for [the] year 1985, she could not held
criminally liable.

The Court finds merit in the argument that the failure on the part of
the accused to file the state tax return and to pay the estate
tax is not willful. Although accused may have failed to comply
with what is required by law, accused should be exempted
from criminal liability as she was prevented to do so due to an
insuperable cause made by no less than the government, i.e.,
as early as February 1986, accused and her family were
forcibly placed on exile in Honolulu, Hawaii until November
1991, when they returned to the country; the properties of
President Marcos were sequestered and placed under the
control and possession of the government after which
forfeiture proceedings were filed before the Sandiganbayan
Court.

True, as pointed out by the defense, why would the government

required accused to comply with her obligations when it had
taken away the very means by which she could comply with
the requirements of the law? Logically, a legal heir who does
not possess a knowledge or information regarding the total
value of the state of the decedent would not dare execute a
return “under oath” under pain of criminal liability. In the same
manner, it is error to expect that accused would pay the tax
due on the state of her late husband during the alleged time
under which she was made to pay when she had no records
in her possession and control with which she could assess
the gross value of the late president at the time of his death

!261
 and the deduction allowed from the gross estate to determine
the estate tax liability.

On the whole, underscoring the finding of the Court that accused’s

failure to comply with her tax obligation was due to causes
beyond her control, there is no doubt that the element of
“Willfulness” for crimes involving the violation of the
National Internal Revenue Code, as alleged in the information
in these five (5) criminal complaints, is lacking. In short, the
prosecution’s evidence did not pass the test of moral certainty
that there was “willful disobedience” on the part of the
accused with the intention to evade and defeat the
tax.” (Underscoring supplied.)

C. Challenges in Proving Intent and Willfulness in Tax Cases

1. Willfulness is a state of mind

2. Willfulness is determined by a subjective standard

!
3. “The element of willfulness is often the most difficult element to
prove in an evasion case. Absent an admission or confession,
which is seldom available, or accomplice testimony,
willfulness is rarely subject to direct proof and must
generally be inferred from the defendant’s acts or
conduct. [U.S. Criminal Tax Manual 8.06 [2]]”

D. Proof of Willfulness in U.S. Jurisprudence

1. Proof of Willfulness - Failure to file Returns [US Criminal Tax

Manual 10.04[5] [a]]

!
a. Willfulness is suggested by a pattern of failing to file for
consecutive years in which returns should have been filed.
United States v. Greenlee, 517 F.2d 899, 903 (3d Cir. 1975).
This may include years prior or subsequent to the prosecution
period. United States v. Upton, 799 F.2d 432, 433 (8th Cir.

!262
 1986); United States v. Farris, 517 F.2d 226, 229 (7th Cir.
1975).

!
b. Willfulness may be shown by disregarding IRS warning letters,
and filing contradictory forms. United States v. Shivers, 788 F.
2d 1046, 1048 (5th Cir. 1986)

!
c. There is also an element of common sense in establishing
willfulness in a failure to file case.

!
d. Thus, willfulness can be shown by such factors as: the
background of the defendant; the filing of returns in prior
years, United States v. Briscoe, 65 F.3d 576,588 (7th Cir.
1995); United States v. Hauert, 40 F.3d 197, 199 (7th Cir.
1994); United States v. Birkenstock, 823 F.2d 1026, 1028 (7th
Cir. 1987); United States v. Bohrer, 807 F.2d 159, 161 (10th
Cir. 1986) United States v. Shivers, 788 F.2d 1046, 1048 (5th
Cir. 1986); that the defendant was a college graduate with
accounting knowledge; that the defendant was familiar with
books and records and operated a business, United States v.
Segal, 867 F.2d 1173, 1179 (8th Cir. 1989); that the defendant
earned a large gross income, Bohrer, 807 F.2d at 161. See
also United States v. Macleod, 436 F.2d 947, 949 (8th Cir.
1971) United States v. Ostendorff, 371 F.2d 729, 731 (4th Cir.
1967).

!
e. Evidence that a defendant had filed returns in other years when
he claimed refunds while there was a substantial tax due for
the years he failed to file is relevant evidence and more than
enough to establish willfulness. Garguilo, 554 F. 2d at 62.

!
!263
2. Proof of Willfulness – Attempt to Evade or Defeat Tax [US
Criminal Tax Manual 8.06[2]]

!
a. In the leading case of Spies v. United States, 317 U.S. 492, 499
(1943), the Supreme Court, “by way of illustration and not by
way of limitation,” set forth the following as examples of
conduct from which willfulness may be inferred:

!
“[K]eeping a double set of books, making false entries or
alterations, or false invoices or documents, destruction of
books or records, concealment of assets or covering up
sources of income, handling of one’s affairs to avoid making
the records usual in transaction of the kind, and any conduct,
the likely effect of which would be to mislead or to conceal.”

!
b. Examples of proof of Willfulness – Attempt to Evade or Defeat
Tax

!
b.1. Willfulness mat be inferred from evidence of a consistent
pattern of underreporting large amounts of income.

!
United States v. Kim, 884 F.2d 189, 192 (5th Cir. 1989)
(evidence of willingness was sufficient where taxpayer failed
to report $182,601 of income over three years); United States
v. Kryzske, 836 F.2d 1013, 1019-20 (6th Cir. 1988) (willfulness
found where taxpayer failed to file complete tax returns over a
four-year period and underreported his income by $940.50 for
one of those years); United States v. Guidry, 199 F.3d 1150,
1157 (10th Cir. 1999); see also United States v. Klausner, 80
F.3d 55,63 (2d Cir. 1996); United States v. Skalicky, 615 F.2d
1117 (5th Cir. 1980); United States v. Larson, 612 F.2d 1301

!264
 (8th Cir. 1980); United States v. Gardner, 611 F.2d 770 (9th Cir.
1980)

!
b.2. Failure to supply an accountant with accurate and complete
information.

!
United States v. Samara, 643 F.2d 701, 703 (10th Cir. 1981)
(taxpayer kept receipt books for cash received but did not
supply them to account, thus concealing cash receipts); see
also United States v. Guidry, 199 F.3d 1150, 1157 (10th Cir.
1999); United States v. Brimberry, 961 F.2d 1286, 1290 (7th
Cir. 1992); United States v. Cheson, 933 F.2d 298, 305 (5th
Cir. 1991); United States v. Michaud, 860 F.2d 495,500 (1st
Cir. 1988); United States v. Meyer, 808 F.2d 1304,1306 (8th
Cir. 1987); United States v. Ashfield, 735 F.2d 101,107 (3d
Cir. 1984); United States v. Conforte, 624 F.2d 869 (9th Cir .
1980); United States v. Scher, 476 F.2d 319 (8th Cir. 1973).

!
b.3. Taxpayer who relies on others to keep his records and
prepare his tax returns may not withhold information from
those persons relative to taxable events and then escape
criminal responsibility for the resulting false returns.

!
United States v. Simonelli, 237 F.3d 19, 30 (1st Cir. 2001);
United States v. O’Keefe, 825 F.2d 314, 318 (11th Cir. 1987);
United States v. Garavaglia, 566 F.2d 1056 (6th Cir. 1977).

!
b.4 False statements to agents; false exculpatory statements,
whether made by a defendant or instigated by him.

!
!265
United States v. Chesson, 933 F.2d 298, 304 (5th Cir. 1991);

!
United States v. Frederickson, 846 F.2d 517, 520-21 (8th Cir. 1988)
(taxpayer falsely stated that she did not receive income from
other employees who worked in her massage parlor and that
she deposited most of her income in the bank); United States
v. Walsh, 627 F.2d 88 (7th Cir. 1980); United States v. Tager,
481, F.2d 97, 100 (10th ir. 1973); United States v. Callanan,
450 F.2d 145, 150 (4th Cir. 1971) United Sytates v. Jett, 352 F.
2d 179, 182 (6th Cir. 1965); see also United States v.
Klausner, 80 F.3d 55, 63 (2d Cir. 1996); United States v.
Pistante, 453 F.2d 412 (9th Cir. 1971); United States v. Adonis,
221 F.2d 717, 719 (3d Cir 1955).

!
b.5. Keeping a double set of books. United Staes v. Daniels, 617
F.2d 146 (5th Cir. 1980).

!
b.6. Hiding, destroying, throwing away, or “losing” books and
records.

!
United States v. Walker, 896 F.2d 295, 300 (8th Cir. 1990)
(taxpayers hi records and assets in an attempt to conceal
them from the IRS). See United States v. Chesson, 933 F.2d
298, 304-05 (5th Cir. 1991)(taxpayer altered and destroyed
invoices after undergoing a civil audit for underreporting
income); United States v. Pistante, 453 F.2d 412 (9th Cir.
19971); United States v. Holovachka, 314 F.2d 345, 357 (7th
Cir 1963); Gariepy v. United States, 189 F.2d 459, 463 (6th
Cir. 1951).

!
b.7. Making or using false documents, false entries in books and
records, false invoices, and the like.
!266
!
United States v. Wilson, 118 F.3d 228, 236 (4th Cir. 1997); United
States v. Chesson, 933 F.2d 298, 304 (5th Cir. 1991); United
States v. Walker, 896 F.2d 295, 298 (8th Cir. 1990)
(defendants submitted false invoices to their family company
so that the company would treat their personal expenses as
business expenses).

!
b.8. Destruction of invoices to customers. United States v.
Garavaglia, 566 F.2d 1056, 1059 (6th Cir. 1977).

!
b.9. Nominees – Placing property or a business in the name of
another.

!
United States v. Daniel, 956 F.2d 540 (6th Cir. 1992); United States
v. Peterson, 338 F.2d 595, 597 (7th Cir. 1964); United States
v. Woodner, 317 F.2d 649, 651 (2d Cir. 1963); Banks v. United
States, 204 F.2d 666,672 (8th Cir. 1953), vacated and
remanded, 348 U.S 905 (1955), reaff‘d, 223 F.2d 884 (8th Cir.
1955)

!
b.10. Extensive use of currency or cashier’s checks.

United States v. Daniel, 956 F.2d 540 (6th Cir. 1992) (defendant
used cash extensively, immediately converted checks to
cash, and paid employees and insurance policies in cash);
United States v. Holovachka, 314 F.2d 345, 358 (7th Cir.
1963);Schuermann v. United States, 174 F.2d 397, 398 (8th
Cir. 1949).

!
!267
b.11. Spending large amounts of cash which could not be
reconciled with the amount of income reported

!
United States v. Simonelli, 237 F.3d 19,30 (1st Cir. 2001);
United States v. Olbres, 61 F.3d 967, 971 (1st Cir.1995);
United States v. Kim, 884 F.2d 189,192 (5th Cir. 1989); or
engaging in surreptitious cash transactions, United States v.
Skalicky, 615 F.2d 1117 (5th Cir. 1980). See also United States
v. Holladay, 566 F.2d 1018, 1020 (5th Cir 1978) United States
v. Mortimer, 343 F.2d 500, 503 (7th Cir. 1965) (money orders
and cashier’s checks).

!
b.12. Use of bank accounts held under fictitious names. United
States v. Ratner, 464 F.2d 101, 105 (9th Cir. 1972); Elwert v.
United States, 231 F.2d 928 (9th Cir. 1956); cf. United States
v. White, 417 F.2d 89, 92 (2d Cir. 1969).

!
b.13. Checks cashed and the currency deposited in an out-of-town
bank account. United States v. White, 417 F.2d 89, 92 (2d Cir.
1969).

!
b.14. Unorthodox accounting practices with deceptive results.
United States v. Slutsky, 487 F.2d 832 (2d Cir. 1973); United
States v. Waller, 468 F.2d 327, 329 (5th Cir. 1972).

!
b.15. Repetitious omissions of items of income, e.g., income from
various sources not reported.

!
United States v. Walker, 896 F.2d 295, 299 (8th Cir. 1990) (over
two year period taxpayer failed to report interest income

!268
 totaling $20,476); United States v, Tager, 479 F.2d 120,
122(10th Cir. 1973); Sherwin v. United States, 320 F.2d 137,
141 (9th Cir. 1963).

!
b.16. Prior and subsequent similar acts reasonably close to the
prosecution years.

!
United States v. Middleton, 246 F.3d 825, 836-837 (6th Cir. 2001);

Matthews v. United States, 407 F.2d 1371, 1381 (5th Cir. 1969);
United States v. Johnson, 386 F.2d 630 (3d Cir. 1967); United
States v. Magnus, 365 F.2d 1007 (2d Cir 1966); United States
v. Alker, 260 F.2d 135 (3d Cir. 1958); cf. Fed. R. Evid. Rule
404 (b).

!
b.17. Alias used on gambling trip – relevant to an intent to evade
taxes. United States v. Catalano, 491 F.2d 268, 273 (2d Cir.
1974).

!
b.18. The defendant’s attitude toward the reporting and payment
of taxes generally.

!
United States v. Hogan, 861 F.2d 312 (1st Cir. 1988); United
States v. Stein, 437 F.2d 775 (7th Cir. 1971); United States v.
O’Connor, 433 F.2d 752, 754 (1st Cir. 1970); United States v.
Taylor, 305 F.2d 183, 185 (4th Cir. 1962);

!
b.19. Background and experience of defendant. General
educational background and experience of defendant can be

!269
 considered as bearing on defentant’s ability to form willful
intent.

!
United States v. Guidry, 199 F.3d 1150, 1157-1158 (10th Cir.
1999) (willfulness inferred from defendant’s expertise in
accounting via her business degree and her work experience
as comptroller of a company); United States v. Klause, 80 F.
3d 55,63 (2d Cir.1996) (defendant’s background as a CPA,
and extensive business experience including that as a
professional tax preparer); United States v. Smith, 890 F.2d
711, 715 (5th Cir. 1989) (defendant’s background as an
entrepreneur probative of willfulness); United States v. Segal,
867 F.2d 1173,1179 (8th Cir. 1989) (defendant was a
successful and sophisticated businessman); United States v.
Rischard, 471 F.2d 105,108 (8th Cir. 1973);. See United
States v. Diamond, 788 F.2d 1025 (4th Cir. 1986); United
States v. MacKenzie, 777 F.2d 811, 818 (2d Cir. 1985)
(willfulness interfered from the fact that each defendant had a
college degree, one in economics and the other in business).

!
b. 20. Offer to bribe government agent. Barcott v. United States,
169 F.2d 929, 931-32 (9th Cir. 1948) (attempt to bribe revenue
agent.)

!
b.21. Use of false names and surreptitious reliance on the use of
cash. United States v. Walsh, 627 F.2d 88. 92 (7th Cir. 1980);
United States v. Holladay, 566 F.2d 1018,1020 (5th Cir. 1978).

!
b.22. Backdating documents, such as receipts, contracts, and the
like, to gain a tax advantage. United States v. Drape, 668 F.2d
22 (1st Cir. 1982); United States v.Crum, 529 F.2d 1380 (9th
Cir. 1976); United States v. O’Keefe, 825 F.2d 314 (11th Cir.
1987).

!270
!
b.23. Illegal sources of income. United States v.Palmer, 809 F.2d
1504, 1505-06 (11th Cir. 1987) (sale of narcotics).

V. TEMPLATES OF TRIAL BRIEFS

!
A. SEC.254. ATTEMPT TO EVADE OR DEFEAT TAX

!
[ ] Caption

____________________________________________________
_______________

!
[ ] Information Sheet (names, addresses and telephone numbers
of the investigators, parties, court)

_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Theory of the Case for the Prosecution

_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Theory of the Case for the Defense

!271
 _________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Issues

_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Stipulations

_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Admissions

_________________________________________________
_________________________________________________
_________________________________________________

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[ ] Elements

[ ] A tax imposed under Tax Code

!272
!
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] A person, natural or juridical, is liable to that tax

____________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Source of evidence:

_________________________________________________
_________________________________________________

!273
 _________________________________________________
_

!
!
!
!
[ ] Such person willfully attempts in any manner to evade or
defeat any tax imposed under the NIRC or the payment
thereof

____________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Probable proof of opponent

____________________________________________________
_________________________________________________
_______________________________________________
!274
!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

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[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________

!275
 _________________________________________________
_________________________________________________

!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

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[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

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[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witnesses

____________________________________________________
_________________________________________________
_______________________________________________

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[ ] Witnesses name:
_________________________________________________
_________________________________________________
_________________________________________________

!276
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Outline of Testimony:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Comment:

_________________________________________________
_________________________________________________
_________________________________________________

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[ ] Witnesses name:

_________________________________________________
_________________________________________________
_________________________________________________

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[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!277
[ ] Outline of testimony:
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________

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[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witness name:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

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[ ] Outline of testimony:
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________

!278
!
[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Documentary exhibits

!
[ ] SEC Certificate of Registration, Articles of Incorporation & By-
Laws or Articles of Partnership (in case of a corporation)

!
[ ] Corporate documents showing signature/participation in the
conduct of business

!
[ ] General Information sheet showing the identity of the corporate
officers as enumerated in Sec. 253(d)

!
[ ] Tax Return of the taxpayer

!
[ ] BIR registration (Integrated Tax System [ITS]/RDO certification)
to show that the person is a registered taxpayer

!
[ ] Deeds of Conveyance & Certificate Authorizing Registration (in
case of One-Time Transaction [ONETT])

!
[ ] Contracts

!279
!
[ ] Mayor’s Permit

!
[ ] DTI registration (if sole proprietorship)

!
[ ] Proof of income received or documents to show source of
income

!
[ ] Any other documents showing participation/involvement of
other persons in the commission of the offense

!
[ ] Third Party Certification (original or if unavailable, certified true
copy)

!
[ ] Certification from the district, region or ITS showing existence
or non-existence of return

!
[ ] Fraudulent Scheme:

[ ] In case of ONETT, 2 or more Deeds of Conveyance

[ ] Using a dummy/ies

[ ] Using fake Certificate Authorizing Registration (CAR) to

commit Tax Evasion

[ ] Badges of Fraud:

!
!280
[ ] intentional and substantial understatement of taxable income
as shown in the returns, financial statements, balance sheet,
or deeds of conveyance showing receipt of income
(underdeclaration of income);

!
[ ] intentional and substantial overstatement (over-claiming) of
deductions or exemptions as shown in returns, financial
statements, balance sheets, invoices;

!
[ ] any act or recurrence of the foregoing or similar circumstances
(Vitug, citing Collector vs. Reyes);

!
[ ] recurrence of failure to perform legal obligation, i.e., obligation
to file return, pay tax, withhold tax, remit tax, supply correct
and accurate information, refund excess taxes withheld on
compensation;

!
[ ] making it appear that one has filed a return and subsequently
withdraws the same after securing the official receiving seal
or stamp;

!
[ ] securing or use of multiple or different TIN;

!
[ ] in case of ONET, price/consideration in the deed inconsistent
with return or the CAR, use of falsified CAR to transfer
property;

!
[ ] other schemes to prove intent to evade tax;

!281
!
[ ] computation showing substantial under-declaration or
substantial overstatement;

!
[ ] Applicable laws and jurisprudence

____________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_____________________________

[ ] Other important points to consider:

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
___________________________________________

!
B. SEC. 255. FAILURE TO FILE RETURN, SUPPLY CORRECT
AND ACCURATE INFORMATION, PAY TAX WITHHOLD
AND REMIT TAX AND REFUND EXCESS TAXES
WITHHELD ON COMPENSATION

!
[ ] Caption

!282
 _________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Information Sheet (names, addresses and telephone numbers
of the investigators, parties, court)

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Theory of the Case for the Prosecution

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Theory of the Case for the Defense

____________________________________________________
_________________________________________________
_________________________________________________

[ ] Issues

_________________________________________________
_________________________________________________
_________________________________________________

!283
!
[ ] Stipulations

____________________________________________________
_________________________________________________
______________________________________________

!
[ ] Admissions

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Elements

____________________________________________________
_________________________________________________
______________________________________________

!
[ ] A person is required under the Tax Code, or by rules and
regulations, to pay any tax, make a return, keep any record,
or supply correct and accurate information

____________________________________________________
_________________________________________________
______________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
!284
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
!
[ ] At the time or times required by law or rules and regulations

____________________________________________________
_________________________________________________
______________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] As a result, such person failed to pay the correct tax

____________________________________________________
_________________________________________________
______________________________________________

!
[ ] Evidence:
_________________________________________________

!285
 _________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Probable proof of opponent

____________________________________________________
_________________________________________________
________________________________________________

!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!286
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
!287
[ ] Witnesses

!
[ ] Witnesses name:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Outline of Testimony:

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Comment:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witnesses name:

!288
 _________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

[ ] Outline of testimony:
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witness name:
_________________________________________________
_________________________________________________
_________________________________________________

[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
!289
[ ] Outline of testimony:
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Documentary exhibits

!
[ ] SEC Certificate of Registration, Articles of Incorporation &
By-Laws or Articles of Partnership (in case of a corporation)

!
[ ] Corporate documents showing signature/ participation in the
conduct of business

!
[ ] General Information sheet showing the identity of the
corporate officers as enumerated in Sec. 253(d)

!
[ ] Tax Return of the taxpayer

!
[ ] BIR registration (Integrated Tax System [ITS]/RDO
certification) to show that the person is a registered taxpayer
!290
!
[ ] Deeds of Conveyance & Certificate Authorizing Registration
(in case of One-Time Transaction [ONETT])

!
[ ] Contracts

!
[ ] Mayor’s Permit

!
[ ] DTI registration (if sole proprietorship)

!
[ ] Proof of income received or documents to show source of
income

!
[ ] Any other documents showing participation/ involvement of
other persons in the commission of the offense

!
[ ] Notice of Informal Conference

!
[ ] PAN

!
[ ] Formal Letter of Demand & FAN

!
[ ] Pro-forma Protest, if there’s any

!
!291
[ ] Certification from collection and Enforcement Division (CED) of
no payment

!
[ ] Tax Return

!
[ ] Third Party Information (certification) to show income

!
[ ] Other proof that income is received

!
[ ] First/Second/Final Request for Presentation of books of
accounts / accounting records

!
[ ] RDO Certification of no return filed

!
[ ] Certificate of creditable withholding tax

!
[ ] Certification from Government Agencies and/or private entities
to show income

!
[ ] Financial Statements

!
[ ] Alpha List from district, Withholding Tax Division or Large
Taxpayer Service

!
!292
[ ] Computation of Tax Liability

!
[ ] Applicable laws and jurisprudence

____________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Other important points to consider:

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

C. SEC. 257 (B)(8) – KNOWINGLY USES FAKE CERTIFICATE

AUTHORIZING REGISTRATION

[ ] Caption

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Information Sheet (names, addresses and telephone numbers
of the investigators, parties, court)

_________________________________________________
_________________________________________________
_________________________________________________

!293
!
[ ] Theory of the Case for the Prosecution

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Theory of the Case for the Defense

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Issues

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Stipulations

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Admissions

_________________________________________________

!294
 _________________________________________________
_________________________________________________

!
[ ] Elements

!
[ ] Any person, natural or juridical

!
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] He knowingly uses fake or falsified revenue official receipts,
Letters of Authority, certificates authorizing registration, Tax
Credit Certificates, Tax Debit Memoranda and other
accountable forms

!
[ ] Evidence:

_________________________________________________

!295
 _________________________________________________
_________________________________________________

!
[ ] Source of evidence:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Probable proof of opponent

!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Facts to be proven:
_________________________________________________

!296
 _________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witnesses

!297
!
[ ] Witnesses name:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Outline of Testimony:

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Comment:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witnesses name:

_________________________________________________

!298
 _________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Outline of testimony:
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witness name:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
!299
[ ] Outline of testimony:
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Documentary exhibits

!
[ ] SEC Certificate of Registration, Article of Incorporation & By-
Laws or Articles of Partnership (in case of a corporation)

!
[ ] Corporate documents showing signature/participation in the
conduct of business

!
[ ] General information sheet showing the identity of the corporate
officers as enumerated in Sec. 253 (d)

!
[ ] Tax Return of the taxpayer

!
[ ] BIR registration (Integrated Tax System [ITS]/RDO certification)
to show that the person is a registered taxpayer

!
!300
[ ] Deeds of Conveyance & Certificate Authorizing Registration (in
case of One-Time Transaction [ONETT])

!
[ ] Contracts

!
[ ] Mayor’s Permit

!
[ ] DTI registration (if sole proprietorship)

!
[ ] DTI or SEC records to show existence of business / operation

!
[ ] Proof of income received or documents to show source of
income

!
[ ] Any other documents showing participation/involvement of
other persons in the commission of the offense

!
[ ] Revenue official receipts

!
[ ] Letter of Authority

!
[ ] Certificate Authorizing Registration

!
[ ] Tax Credit Certificates

!301
!
[ ] Tax Debit Memoranda and other accountable forms

!
[ ] Certification from district, region, ITS as to authenticity of Tax
forms

!
[ ] Register of Deeds documents

!
[ ] Deeds of Conveyance

!
[ ] Contracts

!
[ ] Other documents to show that there was a fraudulent scheme
adopted to produce or use a falsified CAR or other forms

!
[ ] Applicable laws and jurisprudence

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Other important points to consider:

!302
 _________________________________________________
_________________________________________________
_________________________________________________
_

!
D. SEC. 258. UNLAWFUL PURSUIT OF BUSINESS

!
[ ] Caption

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Information Sheet (names, addresses and telephone numbers
of the investigators, parties, court)

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Theory of the Case for the Prosecution

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Theory of the Case for the Defense

!303
 _________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Issues

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Stipulations

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Admissions

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Elements

!304
[ ] A person, natural or juridical, carries on any business for which
annual registration fee imposed

!
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________

[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Such person did not pay the required annual fee

!
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Probable proof of opponent

!305
!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________

!306
 _________________________________________________
_________________________________________________

!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witnesses

!
[ ] Witnesses name:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!307
!
[ ] Outline of Testimony:

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Comment:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witnesses name:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Outline of testimony:
_________________________________________________

!308
 _________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witness name:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Outline of testimony:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
!309
[ ] Documentary exhibits

!
[ ] SEC Certificate of Registration, Article of Incorporation & By-
Laws or Articles of Partnership (in case of a corporation)

!
[ ] Corporate documents showing signature/participation in the
conduct of business

!
[ ] General information sheet showing the identity of the corporate
officers as enumerated in Sec. 253 (d)

!
[ ] Deeds of Conveyance & Certificate Authorizing Registration (in
case of One-Time Transaction [ONETT])

!
[ ] Contracts

!
[ ] Mayor’s Permit

!
[ ] DTI registration (if sole proprietorship)

!
[ ] DTI or SEC records to show existence of business / operation

!
[ ] Proof of income received or documents to show source of
income

!
!310
[ ] Any other documents showing participation/involvement of
other persons in the commission of the offense

!
[ ] Certification form district, region, ITS that person conducting
business is not a registered taxpayer or that no payment of
annual registration fee has been made

!
[ ] Third Party Information

!
[ ] Proof of conduct of business

!
[ ] Ocular Inspection

!
[ ] Certification from Collection and Enforcement Division

!
[ ] No official receipt registered with the BIR

!
!
[ ] Applicable laws and jurisprudence

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

!
!311
[ ] Other important points to consider:

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

!
!
E. SEC. 257. DECLATATION UNDER PENALTIES OF PERJURY

!
[ ] Caption

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Information Sheet (names, addresses and telephone numbers
of the investigators, parties, court)

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Theory of the Case for the Prosecution

!312
 _________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Theory of the Case for the Defense

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Issues

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Stipulations

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Admissions

_________________________________________________
_________________________________________________
_________________________________________________

!
!313
[ ] Elements

!
[ ] There is a declaration, return and other statement required
under this Code, which, in lieu of an oath, contains a written
that they are made under the penalties of perjury

!
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Any person, natural or juridical, willfully files a declaration,
return or statement containing information which is not true
and correct

!
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
!314
 _________________________________________________
_________________________________________________

!
[ ] Such untrue or incorrect statement/s is/are a material matter/s

!
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________

!
!
!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Probable proof of opponent

!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________

!315
 _________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
!316
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witnesses

!
[ ] Witnesses name:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Outline of Testimony:

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

!317
!
[ ] Comment:

____________________________________________________
_________________________________________________
______________________________________________

[ ] Witnesses name:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Outline of testimony:
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
!318
[ ] Witness name:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Outline of testimony:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Documentary exhibits

!
[ ] SEC Certificate of Registration, Article of Incorporation & By-
Laws or Articles of Partnership (in case of a corporation)

!
[ ] General information sheet showing the identity of the corporate
officers as enumerated in Sec. 253 (d)

!
!319
[ ] Deeds of Conveyance & Certificate Authorizing Registration (in
case of One-Time Transaction [ONETT])

!
[ ] Contracts

!
[ ] DTI registration (if sole proprietorship)

!
[ ] Tax Return

!
[ ] Proof of income

!
[ ] Certificate from district, region, ITS

!
[ ] Financial Statements

!
[ ] Third Party Information

!
[ ] Applicable laws and jurisprudence

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Other important points to consider:

!320
____________________________________________________
_________________________________________________
______________________________________________

F. SEC. 236 (J) – SECURING MORE THAN ONE TIN

!
[ ] Caption

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Information Sheet (names, addresses and telephone numbers
of the investigators, parties, court)

_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

!
[ ] Theory of the Case for the Prosecution

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Theory of the Case for the Defense

!321
 _________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Issues

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Stipulations

_________________________________________________
_________________________________________________
_________________________________________________

!
!
!
!
[ ] Admissions

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Elements

!
!322
[ ] Any person, natural or juridical, is a registered taxpayer

!
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Such person was assigned a TIN

!
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Such person secured another TIN

!
!323
[ ] Evidence:

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Probable proof of opponent

!
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!324
[ ] Facts to be proven:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Source of evidence:
_________________________________________________
_________________________________________________
_________________________________________________

!
!
[ ] Facts to be proven:
_________________________________________________
______________

!
[ ] Evidence:
_________________________________________________
______________

!
[ ] Source of evidence:
_________________________________________________
______________

!
[ ] Witnesses

!325
!
[ ] Witnesses name:
_________________________________________________
______________

!
[ ] Personal background:
_________________________________________________
______________

!
[ ] Outline of Testimony:

_________________________________________________
_________________________________________________
_________________________________________________
___________________________________________

!
[ ] Comment:

_________________________________________________
_______________

!
[ ] Witnesses name:

_________________________________________________
_______________

!
[ ] Personal background:
_________________________________________________
______________
!326
!
[ ] Outline of testimony:
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
__________________________________________

!
[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Witness name:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Personal background:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Outline of testimony:

_________________________________________________
_________________________________________________
_________________________________________________

!
!327
[ ] Comment:
_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Documentary exhibits

!
[ ] RDO Certification to show that taxpayer is a registered with the
BIR with the TIN assigned

!
[ ] Certification from ITS of the TIN being used/assigned

!
[ ] Certification from ITS of another TIN secured

!
[ ] Documents to show other TIN/s secured

!
[ ] Applicable laws and jurisprudence

_________________________________________________
_________________________________________________
_________________________________________________

!
[ ] Other important points to consider:

_________________________________________________
_________________________________________________
_________________________________________________

!328
 _________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_

!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!329
SAMPLE FORMATS
!!
NPS Sample Format “C”, s. 2008

!! Republic of the Philippines

REGIONAL TRIAL COURT
! National Capital Judicial Region
BRANCH__________
! MANILA
!
!
People of the Philippines,
Plantiff,
!
Crim. Case No. ___________________
- versus - For: violation of Sec. 3601
!
______________________,
of the Tariff and Customs Code

!! Accused.
x-----------------------------------x

!
MOTION FOR THE ISSUANCE OF
A HOLD-DEPARTURE ORDER
!! Undersigned State/Assistant Provincial/Assistant City Prosecutor,
! unto this Honorable Court most respectfully moves for the
issuance of a hold-departure order (HDO) in the above entitled
!! case, further stating that:

!
1. Accused stands charged of an offense that is of paramount
importance to the government in view of its far-reaching

!! deleterious effect on the national economy.

2. In order not to frustrate the ends of justice, as when the accused

! seeks refuge in another country to escape prosecution and there
enjoy the fruits of his crime, it is imperative that a hold-departure
! order be issued directing the Commissioner of the Bureau of
immigration to prevent the former from leaving the country during
!! the pendency of the instant case.

!
3. The instant motion is filed pursuant to Department of Justice
Circular No. 38 dated August 15, 1990 which directs prosecutors
! to move for the issuance of a hold-departure order in specific
cases, including violations of the Tariff and Customs Code. It is
! not intended to delay the proceedings or infringe upon the
accused’s right to travel but for the reasons stated above.
Page 1
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4. Page
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!330
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!331
WHEREFORE, it is respectfully prayed of this Honorable Court that the

! instant motion be granted and that a hold-departure order be issued

in the above-entitled case directing the Commissioner of the Bureau
! of Immigration to prevent the accused, _______________, from
leaving the country during the pendency of the instant case.
!
(Place/Date)
! ___________________________________

! State/Asst. City/Asst. Provincial/Prosecutor

!
NOTICE AND COPY FURNISHED:

!
Counsel for the Accused

!
(Address)

Private Prosecutor
!
(Address)

!! THE BRANCH CLERK

!
RTC Branch__________
______________________

!!
GREETINGS:
!! Please take notice that on __________________ at ____________a.m
! or soon thereafter, undersigned Prosecutor shall submit the
foregoing motion for the consideration of this Honorable Court.
! ___________________________________
State/Asst. Provincial/Asst. City Prosecutor
!
EXPLANATION
!
Due to the distance and lack of personnel to effect personal service,
! the foregoing Motion is being served upon the adverse parties via

! registered mail.

!! _____________________________________

! State/Asst. Provincial/Asst. City Prosecutor

Page 2
!
!332
!
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!

!333
!!
NPS Sample Format “D-1”, s. 2008

Republic of the Philippines

! Department of Justice
NATIONAL PROSECUTION SERVICE
! ____________________
____________________
!
MEMORANDUM
!
!!
For: The Secretary of Justice
!!
Thru : The Chief State/Regional State/Provincial/City Prosecutor

!!______________________________________

Re: Cancelation of Passport/Travel Document

!! People versus ___________________
! Criminal Case No. ________________, RTC ____________
For: ___________________________
!!
Date: ________________________
!! Please be informed that accused _______________________ in
! the above-entitled case has jumped bail and is reported to have
fled the country. Pursuant to Department Circular No. 38 dated

! August 15, 1990, the passport/travel document of the said

accused should be cancelled as to make him an undocumented
alien in the host country and should, therefore, be subjected to
!! deportation.

! Attached is a copy of the Court Order dated ________________

and the corresponding letter to the Secretary of Foreign Affairs.
!!For consideration and approval.
! _____________________________________
State/Asst. Provincial/Asst. City Prosecutor
!
RECOMMENDING APPROVAL:
___________________________________________
!!
Chief State/Regional State/Provincial/City Prosecutor

!
APPROVED:
________________________
Secretary
!!
Encls.: As stated.
!
!334
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!

!335
NPS Sample Format “D-2”, s. 2008
!!
! Republic of the Philippines
! Department of Justice
! NATIONAL PROSECUTION SERVICE
! ____________________
! ____________________
!!
!
_____________________

! (Date)

!!
!
The Honorable Secretary

!
DEPARTMENT OF FOREIGN AFFAIRS

!
Roxas Blvd., Pasay City

!!
!
Dear Secretary ___________________,

!!
! Our Office is presently prosecuting (complete name of accused) for
violation of ________________ in Criminal Case No.
! _______________, before the RTC _______________. In the
course of the criminal proceedings, the said accused has jumped
! bail and is reported to have fled the country. For this reason and
to better serve the ends of justice, we hereby request for the
! cancellation of the passport/travel document of the said accused
so as to make him an undocumented alien in the host country
! and, therefore, is subject to deportation.

!!
!336
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
APPENDICES
Appendix “A”
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department of Justice
Manila

DEPARTMENT CIRCULAR NO. 39

!
TO: ALL PROSECUTORS IN THE NATIONAL PROSECUTION
SERVICE

!337
 SUBJECT: RULES ON INQUEST WITH RESPECT TO
CHILDREN IN CONFLICT WITH THE LAW AS DEFINED
UNDER REPUBLIC ACT NO. 9344, OTHERWISE KNOWN
AS THE “JUVENILE JUSTICE AND WELFARE ACT OF
2006”

DATE: 15 August 2007

In the interest of the service and pursuant to existing laws,

Sec.3 of the New Rules on Inquest, which provides for the
termination of inquest proceedings within the period
prescribed in Article 125 of the Revised Penal Code, as
amended, shall not be applicable when the persons
arrested without the benefit of a warrant of arrest issued by
the court are children, as defined under Republic Act No.
9344, otherwise known as the “Juvenile Justice and Welfare
Act of 2006” who shall be treated as follows:

1. In cases of warrantless arrest involving a child in conflict with

the law (CICL) who is above fifteen (15) but below eighteen
(18) years of ages, and within eight (8) hours from such
arrest, the law enforcement officer concerned shall turn
over custody of the child to the Local Social Welfare
Development officer (LSWDO) for the determination by the
latter of the presence or absence of discernment of the child
(Rule 25, 1st Par., IRR of RA 9344).

2. The policy behind the juvenile justice system is, as much as

possible, to prevent the CICL from being brought within the
ambit of the judicial system; a fact which is entirely opposite
to the policy underlying Article 125 of the Revised Penal
Code, as amended.

2.1 Hence, the turning over the custody of the child to the
LSWDO and the latter’s custody of the child, shall not be
considered a detention; for which reason, in all cases of
warrantless arrest involving CICL, Article 125 of the Revised
Penal Code shall not be applicable.

3. Cases erroneously filed by the law enforcement officer

directly with the prosecution for inquest investigation shall
!338
 be dismissed without prejudice to the refilling of the
same, if so warranted:

a. Where the offense charged is punishable by imprisonment of

not more than six (6) years, the prosecutor shall direct the
law enforcement officer to turn over the custody of the CICL
to the LSWDO for the required diversion of or intervention
proceeding as the case maybe

a.1. Pending diversion proceedings, the LSWDO shall release the

child to his/her parents, or in the latter’s absence, to the
persons or agencies authorized by the law to take custody
of the child.

a.2. However, where diversion is inappropriate, or no diversion

agreed is agreed upon, or where there is a violation of such
contract by the child or by his/her parents, the complaint
maybe refilled, but shall undergo the regular preliminary
investigation.

b. Where the offense charged is punishable by imprisonment of

more than six (6) years, but the records of the case do not
show any document from the LSWDO certifying that the
child acted with discernment, the prosecutor shall direct the
law enforcement officer to turn over custody of the CICL to
the LSWDO for the latter to determine whether or not the
CICL acted with discernment.

b.1. The case may b revived for inquest proceeding should the
child be found to have acted with discernment

4. Within twenty four (24) hours from receipt of the LSWDO’s

finding of 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.

5. The CICL subject of the inquest proceedings may avail of his

right to Formal preliminary investigation, duly assisted by
counselor in the latter’s absence, by his/her parent, or
guardian or the LSWDO or representative from the

!339
 Barangay Council for the protection of the children, or any
other government agency or non-government organization
having custody of the child for in behalf of the LSWDO.

6. Where the child acted without discernment, the LSWDO shall

notify the law enforcement officer and the offended party or
the complainant (in case of victimless crimes), of such
finding. The LSWDO shall release or cause the release of
the child from custody, if within five (5) days from such
notice, the offended party or the complaint does not contest
the finding of absence of discernment of the child. Upon the
filing by the offended party or complaint with the LSWDO of
the notice to contest the latter’s finding, the child shall
continue to be under the custody of the LSWDO or any
other authorized agency in whose custody the child has
been delivered.

7. Within fifteen (15) days from receipt of the finding of absence

of discernment, the offended party or complaint may file an
action or appeal with the prosecutor questioning the finding
of the LSWDO. However, in cases punishable by reclusion
perpetua, life imprisonment or death, the finding by the
LSWDO of lack of discernment shall be the subject of an
automatic appeal to the investigating prosecutor and it
shall be the duty of the law enforcers to forward/transmit the
records of the case to the investigating prosecutor.

8. In cases where automatic appeal does not apply, and the

LSWDO’s finding of absence of discernment is not
contested within the fifteen (15) day period, the law
enforcement officer shall dismiss the case, and the LSWDO
shall release or cause the release of the child from custody,
but shall subject the child to an intervention program.

9. Upon receipt of the offended party’s or the complainant’s

appeal from the LSWDO’s finding of absence of
discernment of the child, the prosecutor shall conduct his/
her own assessment on the child’s discernment or absence,
thereof.

!340
 9.1 For purposes of such assessment, the prosecutor shall
require the law enforcement officer to forward the records of
the case to him/her; and conduct clarificatory hearing so the
latter could personally examine the CICL.

9.2 If the prosecutor deems it necessary, he/she may, at his/

her own discretion, and to aid him/her in his/her
assessment, require the LSWDO to forward to him/her a
copy of the case study on the child, if any or the records of
the LSWDO’s examination on the child, supporting its
finding of absence of discernment of the child, supporting its
finding of absence of discernment of the child.

9.3 If the child acted with discernment, the prosecutor shall

dismiss the case and order the release of the child and the
conduct of the intervention by tile LSWDO.

9.4 I the child acted with discernment, the prosecutor shall

conduct the inquest proceedings without prejudice to the
child’s right to a preliminary investigation.

This circular takes effect immediately.

For strict compliance.

(Sgd.) RAUL M. GONZALEZ

Secretary
!
!
!
APPENDIX “B”

Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department of Justice
Manila 26 June 2003

DEPARTMENT CIRCULAR NO.46

!

!341
SUBJECT: AUTOMATIC REVIEW OF DISMISSED CASES
INVOLVING RA 9165 (COMPREHENSIVE DANGEROUS
DRUGS ACT OF 2002)

TO: CHIEF STATE PROSECUTOR/REGIONAL STATE

PROSECUTORS / CITY AND PROVINCIAL
PROSECUTORS

In the interest of public service and pursuant to existing laws,

effective upon issuance hereof and until otherwise ordered,
the dismissal of all cases, whether on inquest/preliminary
investigation or on appeal, filed for violation of RA 9165 and
involving the maximum penalty of life imprisonment to
death, shall be subject to automatic review, as follows:

1. For cases dismissed by City and Provincial Prosecutors, by the

Regional State Prosecutor having jurisdiction over the
Prosecution Office concerned; and

2. For cases dismissed by the Chief State Prosecutor, Regional

State Prosecutors and City Prosecutors of cities in
Metropolitan Manila, by the Secretary of Justice.

!
The entire record of the case shall be elevated to the reviewing
authority concerned within three (3) days from issuance of
the resolution dismissing the compliant or appeal, as
applicable.

The automatic review shall be summary in nature and shall be

completed within thirty (30) days from receipt of the case
record.

This Department Circular shall apply to covered cases which

have been dismissed prior to the issuance hereof if such
dismissal has not yet attained finality as of the date of this
Circular.

This Department Circular amends or modifies all prior

issuances inconsistent herewith.

!342
For strict compliance.

!
( Sgd.) SIMEON A. DATUMANONG
Secretary
!
APPENDIX “C”

Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department of Justice
Manila 28 August 1991

DEPARTMENT ORDER NO. 318

!
SUBJECT: DEFINING THE AUTHORITY, DUTIES AND
R E S P O N S I B I L I T I E S O F R E G I O N A L S TAT E
PROSECUTORS

In the interest of public service and for the delivery of

prosecutorial services, the following appointed Regional
State Prosecutors:

REGION I APOLINARIO G. EXEVEA

San Fernando, La Union
!
REGION II RODOLFO B. CADELINA
Tuguegarao, Cagayan
!
REGION III MELCHOR Q. C. SADANG
San Fernado, Pampanga
!
REGION IV CLARO A. ARELLANO
San Pablo City
!
REGION V SANTIAGO M. TURINGAN
Legaspi City
!
REGION VI VICENTE E. ARAGONA
!343
 Iloilo City
!
REGION VII JOSE M. EZPELETA
Cebu City
!
REGION VIII FRANCISCO Q. AURILLO,JR.
Tacloban City
!
REGION IX WILFRIDO M. YU
Zamboanga City
!
REGION X JESUS A. ZOZOBRADO
Cagayan de Oro City
!
REGION XI EMANUEL D. GALICIA
Davao City
!
REGION XII SALIC B. DUMARPA
Iligan City
!
Shall exercise the following authority, duties and responsibilities:
!
1.Implement within the region policies, plans, programs,
memoranda, orders, circulars, rules and regulations of the
Department of Justice relative to the National Prosecution
Service (P.D. 1275);
!
2.Exercise immediate administrative supervision over all
provincial and city prosecutors and other prosecuting
officers of provinces and cities within the region;
!
3.Investigate and/or prosecute, upon the directive of the
Secretary of Justice, specific criminal cases filed within the
region.
!
!344
 4.Appoint personnel to positions in the first level and casual and
seasonal employees as may be necessary; and exercise
disciplinary actions over them in accordance with the Civil
Service Law; and approve transfer of subordinate personnel
within the region (E.O.292, s. 87; P.D. 1275);
!
5. Approved requests for sick, vacation and maternity leaves of
absence with or without pay, for a period not exceeding one
year; for overtime services; for permission to teach,
exercise their profession or to engage in business outside
of office hours in accordance with standards and guidelines
of the Civil Services Commission; for official travel within
the region for periods not exceeding thirty days; and for
claims for benefits under existing law (P.D. 1275 and E.O.
292);
!
6. Approve attendance of personnel in conference, seminars and
non degree training and programs within the region (E.O.
292);
!
7. Prepare the budget for the approval of the Secretary of
Justice and administer the same (P.D. 1275);
!
8. Approved requisition for supplies, materials and equipment as
well as books and periodicals, and other items for the
region, in accordance with the approved supply
procurement programs (E.O. 292);
!
9. Negotiate and conclude contracts for services or for furnishing
supplies, materials and equipment for amounts not
exceeding P50,000.00 for each quarter (P.D. 1275);
!
10. Monitor the submission of all reports required by the
Department of Justice in relation to the operations and field
activities of the prosecution offices within the region
(Department Order No. 150, s. 1989);
!
!345
 11. Designate a prosecutor from another province or city within
the region to investigate and prosecute a case in instances
where parties may question the partiality or bias of
prosecutors of a particular provincial or city prosecution
office;
!
12.Recommend to the Secretary of Justice the appointment and/
or promotion of any provincial or city prosecutor or their
assistants within the region;
!
13.Resolve with finality appeals from resolutions of dismissal of
provincial/city prosecutors and their assistants within the
jurisdiction of Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts or is punishable
with imprisonment of not exceeding four (4) years and two
(2) months, or a fine not more than four thousand pesos, or
both such fine and imprisonment;
14. Investigate administrative complaints against fiscals and
other prosecuting officers within the region and submit his
recommendation thereon to the Secretary of Justice who
shall, after review thereof, submit the appropriate
recommendation to the Office of the President: Provided,
that where the Secretary of Justice finds insufficient
grounds for the filing of charges he may render a decision
of dismissal thereof (P.D. 1275);
!
15. Investigate administrative complaints against subordinate
personnel of the region and submit his recommendations
thereon to the Secretary of Justice who shall have the
authority to render decision thereon;
!
16.Coordinate with the regional offices of the other departments
and bureaus/agencies under the Department of Justice and
with local governments, the police and military units in the
region (P.D.1275); and
!
!346
 17.Perform such other duties and functions as may be provided
by law or further delegated head of agency or other proper
authorities concerned (E.O. 292).
!
In the meantime that the Office of the Regional State
Prosecutor is without a complement of support staff
personnel, the Regional State Prosecutor is hereby
authorized to detail with his office such number of personnel
that may be needed from adjacent Provincial/City
Prosecution Offices so that it may be able to deliver and
perform its functions as herein provided in this Order.
Likewise, until it shall have a budget of its own, the office
supplies and equipment requirements of the Regional State
Prosecution Office shall be provided for by the central office
upon proper requisition of the Regional State Prosecutor.
!
This Order takes effect immediately and shall remain in force
until further orders.
!
All issuances inconsistent herewith are hereby superseded and
revoked.
!
(Sgd.) SILVESTRE H. BELLO
Acting Secretary of Justice
!
!
Copy furnished:
All concerned.
!
Appendix “D”
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department of Justice
Manila
February 20, 1992
!
DEPARTMENT ORDER NO. 54
!
!347
SUBJECT: Amending Department Order No. 318, Series of
1991, by specifying the instances where a Regional State
Prosecutor can designate an Acting City or Provincial
Prosecutor to handle the investigation/prosecution of a
particular case.
!In the interest of public service for the efficient delivery of
prosecutorial services and pursuant to existing laws,
paragraph 11 of Department Order No. 318, Series 1991 is
hereby amended to read as follows:

“Designate a prosecutor from another province or city within the

region or a state prosecutor in the Regional State
Prosecution Office, as Acting City or Provincial Prosecutor,
to investigate and prosecute a case in instances where
parties may question the partiality or bias of prosecutors of
a particular provincial or city prosecution office or where the
city of provincial prosecutor voluntarily inhibits himself by
reason of relationship to any of the parties within the sixth
civil degree of consanguinity or affinity.”
!This Order takes effect immediately and shall remain in force until
! further orders. (Sgd.) EDUARDO G. MONTENEGRO
Acting Secretary
!!
Copy furnished:
All concerned.
!
!
!
!
Appendix “E”
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department of Justice
Manila
May 11, 2000
!
DEPARTMENT CIRCULAR NO. 50
!348
!
TO: All Region State Prosecutors/Provincial/City Prosecutors
and their Assistants, State Prosecutors and Prosecution
Attorneys in the National Prosecution Service.
!
SUBJECT: Specifying Aggravating and Qualifying
Circumstances in all Information or complaints Filed in court
!
It has come to the attention of his Office that decision in several
cases wherein the penalty of death had been imposed by
the trial court were modified by the Supreme Court and
lowered to reclusion perpetua due to the failure of the
prosecutors to allege in the informations or complaints the
attendance of special and other qualifying circumstances.
!
Thus, in the case of People vs. Ramos, 296 SCRA 559, where
the prosecutor failed to allege in the information the
relationship of the victim under 18 years of age with the
offender who was her father, the Supreme Court “call (ed)
the attention of the members of the prosecution service and
peace officers charged with preparation of informations and
complaints, that the attendant circumstances provided by
Republic Act No. 9659 must be specifically alleged in an
information for rape in order that they may properly qualify
the crime to the penalty specially prescribed by the law.”
See also the cases of People vs. Gallo, G.R. 124736, Sept.
29, 1999, citing People vs. Garcia, 281 SCRA 463.
!
It has also been observed that prosecutors have been negligent
in failing not only to cite qualifying circumstances but also to
prove aggravating circumstances attendant to the case,
thus, instead of securing penalties in the maximum period,
only the minimum or medium periods are imposed by the
courts. There is a need to cite aggravating circumstances in
the information or complaint even if they can be proved in
court, if not alleged, for the following reasons: First. If the
accused pleads guilty during arraignment, there is no need
for the prosecution to present evidence in support thereof.

!349
 Second. The trial prosecutor may not be the same
prosecutor who conducted the preliminary investigation and
therefore, he may not be aware of the aggravating
circumstances established in said investigation. The
allegation of the aggravating circumstances in the
information or complaint will therefore serve as a reminder
to the trial prosecutor in his presentation of evidence.
!
For strict compliance.
!
(Sgd.) ARTEMIO G. TUQUERO
Secretary
!
Copy furnished:
All concerned.
!
!
!
!
!
!
!
!
!
!
!
!
Appendix “F”
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department of Justice
Manila
May 3, 2000
DEPARTMENT CIRCULAR NO. 47

SUBJECT: PREPARATION OF A TRIAL GUIDE

!350
!
In the interest of the service and for the purposed of promoting
efficient and effective administration of justice, the
preparation of a trial guide is henceforth required in the
prosecution of all cases involving heinous and grave
felonies or offenses.
!
The prosecutor assigned to prosecute the case shall prepare
the trial guide. The trial guide, as accomplished, shall be
made a permanent part of the prosecution’s records of the
case. Its preparation shall be in accordance with the
attached matrix.
!
Regional, Provincial and City Prosecutors, and their assistants,
and the State Prosecutors in the Office of the Chief State
Prosecutor are enjoined to strictly comply with this Circular.
!
This Circular takes effect immediately and shall remain in force
until revoked.
!
!
(Sgd.) ARTEMIO G. TUQUERO
Secretary
!
!
!
!
TRIAL GUIDE
!
A. The Case
I. A brief statement of the facts of the case.
!
II. The prosecution’s theory of the case.
!
III. Applicable laws and jurisprudence.
!
!351
B. Evidence for the Prosecution
I. The names of prosecution witnesses and the synopsis of the
facts to be testified by each.
!
II. A list of exhibits to be presented and marked in court.
!
III. A list of aggravating, mitigating, qualifying or other
circumstances that are present in the case.
!
IV. The facts or points to be proved during the trial.
!
C. Evidence for the Defense
!
I. The defense theory.
!
II. The names of probable defense. Witnesses and synopsis of the
facts to be testified by each.
!
III. A list of probable exhibits for the defense.
!
IV. The facts expected to be proved by the defense.
!
!
!
!
!
Appendix “G”
Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department of Justice
Manila
July 03, 2008
!
DEPARTMENT CIRCULAR NO. 26
!
!352
TO: ALL PROSECUTORS
!
SUBJECT: JURISDICTION TO CONDUCT PRELIMINARY
INVESTIGATION OF CASES AGAINST PUBLIC
OFFICERS/EMPLOYEES
!
In the Interest of the Service, and the pursuant to the Supreme
Court’s ruling in Honasan II vs. Department of Justice (DOJ)
Panel of Investigative Prosecutors G.R No. 159747, April
13, 2004 this Office hereby makes the following observation
relative to the exercise of this Department’s jurisdiction to
conduct preliminary investigation proceedings of cases
involving public officers and/or employees:
!
1. The DOJ is not precluded from conducting any
investigation of cases involving violations of penal
laws, even if the same involves public officers and/or
employees.- Sec. 13 Article XI of the constitution, Sec.15 of
the Ombudsman Act of 1989 and Sec.4 of the
Sandiganbayan Law, as amended, do not grant to the
Honorable Ombudsman exclusive jurisdiction to investigate
offenses committed by the public officers or employees. The
authority of the Ombudsman to investigate offenses
involving public officers or employees is concurrent with
other government investigating agencies such as provincial,
city and state prosecutors.
!
2. The DOJ need not be authorized or deputized by the
Ombudsman to conduct the preliminary investigation
for complaints against any person, including public
officers and employees, filed before it. The Department’s
jurisdiction is based on its authority as the government’s
principal law agency and prosecution arm tasked to
administer the criminal justice system, to investigate the
commission of crimes, and to prosecute offenders under
Chapter 1, Title III, Book IV of the 1987 Administrative
Code, as well as its responsibility for the investigation and
prosecution of all cases involving violations of penal laws

!353
 under Sec. 1 of P.D. 1275- which authorities are further
confirmed by Secs.2 and 4 Rule 112 of the Revised Rules
on Criminal Procedure. Hence, the power to investigate or
conduct preliminary investigation on charges against public
officers or employees by provincial or city prosecutors or
their assistants, either in their regular capacities or as
deputized Ombudsman prosecutors.
!
3. The authority to investigate charges of illegal acts or
omissions on the part of public officials is a shared or
concurrent authority on the part of the Ombudsman
and this Department. – The authority of the Ombudsman
to investigate any illegal act or omission of any public
official is not an exclusive authority but rather a shared or
concurrent authority in respect of the offense charged. The
case of Sanchez V. Demetriou, 227 SCRA 627, citing
Aguinaldo v. Domagas, GR No. 98452, September 26, 1991
and Deloso v. Domingo, 191 SCRA 545 (1990), even held
that the “non- involvement of the office of the Ombudsman
[in the present case] does not have any adverse legal
consequences upon the authority of the [panel of]
prosecutors to file and prosecute the information and
amended information”.
!
4. DOJ-OMB Joint Circular No. 95-001 is merely an internal
agreement between the Ombudsman and this
Department.- Considering that the Department’s authority
is based on Chapter 1, Title III, Book IV of the 1987
Administrative Code, Sec.1 of PD 1275, as confirmed by
Secs. 2 and 4, Rule 112 of the Revised Rules on Criminal
Procedure, there is not even a need to delegate the conduct
of the preliminary investigation to this Department
considering that it has the jurisdiction to do so in the first
place. The fact that all prosecutors are in effect deputized
Ombudsman prosecutors under OMB-DOJ Joint-Circular
No. 95-001 is a mere superfluity.
!
!354
5. The Ombudsman may, in the exercise of its primary
jurisdiction, take over at any stage only in cases falling
within the exclusive jurisdiction of the Sandiganbayan.-
The Ombudsman, in the exercise of its primary jurisdiction
over cases cognizable by the Sandiganbayan, may take
over, at any stage,from any investigating agency of the
government, the investigation such cases.
!
For proper guidance of all concerned, and in order to prevent
any undue delay caused by issues of jurisdiction between
this Department and the Ombudsman, it is thereby clarified
pursuant to existing jurisprudence, laws, rules and
regulations, that all prosecutors have legal authority to
take cognizance of, and conduct preliminary
investigation/inquest proceedings on, all complaints
field before them involving violations of penal laws,
regardless of whether or not the respondents therein
are public officials and/or employees; PROVIDED That,
for cases cognizable by the Sandiganbayan in the exercise
of its original jurisdiction Sec.4 (a), (b), and (c) of RA 7975,
as amended, the Ombudsman may take over at any stage
of the investigation, in line with its primary jurisdiction under
the last sentence Sec.15 (1) of RA 6670 conformably with
ruling in Honasan vs. Department of Justice (DOJ) Panel
of Investigating Prosecutors.
!
In Accordance with Sec. 4, Rule 112 of the Revised Rules on
Criminal Procedure, all resolutions on preliminary
investigation for cases involving offenses cognizable by
the Sandiganbayan in the exercise of its original
jurisdiction, shall within five (5) days from the issuance
thereof, be forwarded together with the case records to the
Ombudsman or his deputy. In such cases, no complaint
or information maybe filed or dismissed by an
investigating prosecutor without the prior written
authority or approval of the Ombudsman or his deputy.
!
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 Existing guidelines, procedure and issuance intended to
preserve and enhance the joint and mutual coordination
between the office of the Ombudsman and the Department
of Justice shall remain effective with this Circular and
applicable jurisprudence, laws, rules and regulations.
!
This Circular takes effect immediately, and shall remain in full
force until further others
!
(Sgd.) RAUL M. GONZALES
Secretary
Copy furnished:
All concerned.
!
Appendix “H”
!
GUIDE FOR MEDIA PRACTITIONERS ON THE REPOTING AND
COVERAGE OF CASES INVOLVING CHILDREN
!
Rationale
!
One of the landmarks of a democratic society is the access to
information on matters of public concern. Thus, Article III,
Section 7 of the Philippine Constitution provides: “The right
of the people to information on matters of public concern
shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts,
transactions or decisions, as well as to government
research data used as basis for policy development, shall
be afforded the citizen, subject to such limitations as may
be provided by law”.
!
As a cornerstone in a democratic society, Media provides the
means for a free market of ideas. Access by media to
information is given wide latitude most especially when it
comes to matters of governance, public and political affairs.
However, it must be noted that the very Constitutional

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 provision recognizing the right to access to information
likewise states that the right is not without limitations.
Access to information is “subject to limitations as may be
provided by law”. One such limitation is the access to
information, and the public thereof, on matters pertaining to
children.
!
The challenge to media practitioners is to carry out their duty of
informing the public effectively and at the same time being
aware of the need to protect and enhance the rights of the
child without in any way compromising the freedom of
expression r undermining their independence as journalists.
They are in the position to assess the efforts along this line
and challenge everyone to comply with domestic laws and
international commitments on the rights of the child.
!
This guide is intended to raise media awareness on issues
concerning the rights of the child and at the same time
reinforce journalistic standards, through self-regulation, and
contribute to the protection and promotion of these rights.
Existing laws passed protecting the child provides for
confidentiality. The confidentiality clauses are meant to
protect the child’s right to privacy and to prevent the child
from trauma, social stigma, and further suffering arising
from inappropriate publicity or approaches to media
coverage.
!
With the passage of new laws relating to children, the Special
Committee for the Protection of Children saw the need
to update the guidelines it formulated in 2000, consistent
with the provisions provided in the laws.
!
Declaration of State Policy
!
The 1987 Constitution declares that the State recognizes the
sanctity of family life and shall protect and strengthen the
family as a basic institution. The natural and primary right
and duty of parents is the rearing of the youth for civic

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 efficiency and the development of moral character shall
receive the support of the Government.
!
The state recognizes the vital role of youth in nation-building
and shall promote and protect their physical, moral,
spiritual, intellectual, and social well-being. It shall inculcate
in the youth patriotism, nationalism, and encourage
involvement in public and civil affairs.
!
The State, in the existence of parents patriae, has the inherent
duty to defend and care for its citizens, children included,
considering the special care they need vis-à-vis the right to
press freedom and the right to expression.
!
Children need special safeguards and care due to their size,
vulnerability and young age. Every effort must be exerted to
ensure that the children are accorded special protection to
enable them to grow and develop in an atmosphere of
peace, dignity, tolerance, freedom, equality and solidarity.
The best interest of the child shall be the primordial and
paramount concern of everyone.
!
The United Nations has recognized that children need special
care and protection. The Convention on the Rights of the
Child, to which the Philippines is a state party. Recognizes
that a child’s rights need to be protected and enhanced,
among these, the right to privacy, honor and reputation
either as a victim or in conflict with the law.
!
There are groups of children who need special protection.
Children as victims of abuse and those who are in conflict
with the law need to be shielded from inappropriate media
coverage and unwarranted publicity. Reporting of their
cases should be done in a manner that would promote their
best interest.
!
Legal Basis

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!
• Presidential Decree No. 603 (Child and Youth Welfare
Code) prvides for the destruction of the records of the case
such as files of the National Bureau of Investigation, any
police department and any other government agency, after
the charges have been dropped.
!
• Republic Act No. 7610 (Special Protection of Children
Against Child Abuse, Exploitation and Discrimination
Act) requires “strict confidentiality” on the identity of child
abuse victims and to all records pertaining to the case.
!
• Republic Act No. 8369 (Family Act of 1997) provides that all
hearings and conciliation of the child and family cases shall
be treated in a manner consistent with the promotion of the
child’s and family’s dignity and worth, and shall respect their
privacy at all stages of the proceedings. It further provides
for the confidentiality of all records of cases and the identity
of the parties involved therein unless necessary and without
court authority.
!
• Republic Act 9165 (Comprehensive Drugs Act of 2002)
provides for the confidentiality of records of children under
both the voluntary and compulsory submission program or
those of children discharged after compliance with
conditions of suspended sentence. It further provide records
of probation and community service of the child.
!
• Republic Act No. 9208 (Anti-Trafficking in Persons Act of
2003) provides for confidentiality of proceedings at any
stage of the investigation. It shall be unlawful to cause
publicity of any case of trafficked persons when prosecution
or trial is conducted behind closed-doors.
!

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• Republic Act No. 9262 (Anti-Violence Against Women and
Their Children Act of 2004) provides that all records
pertaining to cases of violence against women and their
children shall be confidential… and the right to privacy of
the victim shall be respected. Whoever publishes or cause
to be published, in any format, the name, address,
telephone number, school, business address, employer, or
other identifying information of a victim or an immediate
family member, without the latter’s consent shall be liable to
the contempt power of the court.
!
• Republic Act No. 9344 (Juvenile Justice and Welfare Act of
2006) mandates that all records and proceedings involving
children in conflict with the law from initial contact until final
disposition of the case shall be considered privileged and
confidential.
!
• Rule on Examination of Child Witnesses as promulgated by
the Supreme Court
!
The said laws/rule provides for penal sanctions for any violation
of the abovementioned confidentiality provisions.
!
Coverage and Definitions
!
This guide is primarily intended for media practitioners in the
reporting and coverage of cases involving children.
!
A. For purposes of this guide, the term “media practitioners” refers
to all persons who are involved in any form of mass media,
including internet, and are not limited to editors, publishers,
reporters, columnist, writers, photo journalists, cameramen,
announcers, program hosts, program content producers
and directors.
!
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B. The child refers to a person below eighteen (18)years of age or
one who is eighteen (18) tears of age or over but is unable
to fully take care of or protect himself/herself from abuse,
neglect, cruelty, exploitation, or discrimination because of a
physical or mental ability or condition. In particular are the
following:
!
a. Child Victim – is a child who suffered from abuse, exploitation,
neglect and discrimination (e.g. sexual, physical, emotional,
verbal, psychological, economic). The term includes
Children Involved in Armed Conflict (CIAC).
b. Child in Conflict with the Law (CICL) – refers to a child who is
alleged as, accused of, or adjudged as, having committed
an offense under Philippine laws
c. Child Witness – is any person who at the time of giving
testimony is below the age of eighteen (18) years
!
Principles and Guide
!
Principles 1
!
Children have an absolute right to privacy. The highest
ethical and professional standards in reporting and
covering cases of children must be observed such that
in all publicity concerning children, the best interest of
the child shall be the primary concern.
!
Guide
!
1. In the best interest of the child, the identity of a child victim of
abuse, child witness, CIAC or a CICL shall not be disclosed
whether directly or indirectly. No information that would lead
to the identity of the child or any member of his/her family
shall be published or broadcast.
!
2. Photographs, images, or video footage of the face or any
distinguishing feature or information of a child victim of

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 abuse, child witness, CIAC or a child in conflict with the law
including his or her family members shall not be taken,
published, or shown to the public in any manner.
!
3. Exception to this are missing children, children looking for their
parents or relatives or any other similar cases where
revealing the identify, is for the best interest of the child.
!
4. The disclosure of any private or graphic detail of the case,
including the medico-legal findings, in public, is a violation
of confidentiality provisions under the law.
!
5. The access, use or dissemination as well as the provision of
records of a child shall be subject to sanctions under
existing laws. Records, materials and other evidence
recovered or confiscated during rescue operations of child
victims are considered confidential when they form part of
police, prosecution or court records.
!
6. In the best interest of the child, interview(s) of a child victim of
abuse, child witness, child involved in armed conflict and a
child in conflict with the law should be conducted only when
the child interviewee is assisted by a psychologist or a
social worker known to her or him. In this case, the media
practitioner should take into consideration the level of
comfort of the child when asking questions and the length of
time spent in the interview. This is to prevent the child from
further traumatisation or victimization.
!
7. In reporting or covering cases on abuse and exploitation
involving children, media practitioners are encourage to
discuss the issues surrounding the case rather than the
personal circumstances of the victim.
!
Principle 2
!
The child’s dignity must be respect at all times.

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!
Guide
!
1. The use of sexualized images of children is a violation of the
child’s rights. Obscene or pornographic materials, videos,
photographs and other related media should not be
subjects of circulation, publication or broadcast as it is a
violation of the right of the child to dignity and self-worth.
!
2. Crimes of violence by or against children must be reported
factually and seriously without passing judgment,
stereotyping, or sensationalism.
!
3. There should be a conscious effort to avoid sensationalism and
exploitation of the child in need of any assistance. The
release of the child’s identity to elicit financial support or aid
for the child’s medical care is strongly discouraged.
!
4. The personal circumstances of the child which will tend to
sensationalize the case must be avoided. The child’s life
should not be treated as a movie.
!
Principle 3
!
Children have the right to be heard. Access to media by
children should be encouraged.
!
Guide
!
1. Whenever possible, give children access to media for them to
be able to express their own opinions without inducement of
any kind, in any manner or procedure affecting them.
!
2. When the child is the source of crime-related news or
information, his/her identity should be protected at all times.
!
Principle 4

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!
The mass media is a partner in the promotion of child rights
and the prevention of child delinquency, and is
encouraged to relay consistent messages through a
balanced approach.
!
Journalistic activity which touches on the lives and welfare of
children must be carried out with sensitivity and
appreciation of the vulnerable situation of children, so
that children are not re-victimized or re-traumatized.
!
Guide

1. On media coverage of specific cases, the present as well as

long-term implications for the child’s recovery, rehabilitation
and reintegration shall be taken into consideration by all
those involved in deciding on and implementing and said
approaches to media coverage.

2. It is the responsibility of the media to verify the status of an

organization which purports to speak or represent the child,
before any airing, broadcasting or publication in behalf of
the child. The organization must be duly accredited,
registered or licensed by the Department of Social Welfare
and Development (DSWD) or by any appropriate
government agency.

3. Media is urged to undertake investigative journalism and to

report on violations of children’s rights, and other issues
relating to children’s safety, privacy, security, education,
health and social welfare and all forms of exploitation and
discrimination.

4. There are government agencies responsible for the care of

children such as the Department of Social Welfare and
Development (DSWD), or the local social welfare offices,
Department of Labor and Employment (DOLE), Movie and
Television Review and Classification Board (MTRCB),
including private organizations or institutions which have

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 adopted and are implementing guidelines on dealing with
child sensitive coverage, reportage, and access to media.
Media organizations are urged to develop their own internal
policies and procedures aligned and consistent with these
guidelines, including monitoring systems and protection
mechanisms on the engagement of children in any media
program to ensure that children are free from physical and
psychological risks and that they are not exploited for
commercial purposes.

5. Media organizations are encourage to exercise self-regulation

through responsibility in programming, publication or
posting of any information affecting the physical, social,
emotional, mental and moral development of the child. The
publication of images or broadcast of programs containing
information detrimental to child development should be
shown or aired outside of the time slots allotted for children.

REFERENCES:

RA No. 8369, Sec. 12; RA No. 9165; RA No. 9280, Sec. 7; RA

No. 9262, Sec. 44; RA No. 9344, Sec. 23; Supreme Court
Rule on the Examination of Child Witnesses and the UN
Convention on the Rights of the Child.

ADDITIONAL REFERENCE

International Federation of Journalists’ Draft Guidelines and

Principles for Reporting on Issues Involving Children
(Adopted at Recife, Brazil, 2nd May 1998)

All journalists and media professionals have a duty to maintain the

highest ethical and professional standards and should
promote within the industry the widest possible
dissemination of information about the International
Convention on the Rights of the Child and its implications
for the exercise of independent journalism.

Media organizations should regard violations of the rights of

children and issues related to children’s safety, privacy,
security, their education, health and social welfare and all

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 forms of exploitation as important questions for investigation
and public debate. Children have an absolute right to
privacy, the only exceptions being those explicitly set out in
these guidelines.

Journalistic activity which touches on the lives and welfare of

children should always be carried out with appreciation of
the vulnerable situation of children. Journalists and media
organizations shall strive to maintain the highest standards
of ethical conduct in reporting children’s affairs and, in
particular, they shall:

• Strive for standards of excellence in terms of accuracy and

sensitivity when reporting on issues involving children;

!
• Avoid programming and publication of images which intrude
upon the media space for children with information which is
damaging to them;

!
• Avoid the use of stereotypes and sensational presentation to
promote journalistic material involving children;

!
• Consider carefully the consequences of publication of any
material concerning children and shall minimize harm to
children;

!
• Guard against visually or otherwise identifying children unless it
is demonstrably in the public interest;

!
• Give children, when possible, the right of access to media to
express their own opinions without inducement of any kind;

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!
• Ensure independent verification of information provided by
children and take special care to enschild informants at risk;

!
• Avoid the use of sexualized images of children;

• Use fair ,open and straight forward methods for obtaining

pictures and whenever possible, obtain them with the
knowledge and consent of children or a responsible adult,
guardian or care giver;

!
• Verify the credentials of any organization purporting to speak
for or represent the interest of children;

!
• Not make payment to children for material involving the welfare
of children or to parents or guardians of children unless it is
demonstrably in the interest of the child;

!
Journalists should put to critical examination the reports submitted
and the claims made by Governments on implementation of
the UN Convention on the Rights of the Child in their
respective countries.

!
Media should not consider and report the conditions of children
only as events but should continuously report the process
likely to lead or leading to the occurrences of these events.

!
!
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