NON-ATTENDANCE TO NIGHT COURT: A VIOLATION OF ARTICLE 231 OF

THE REVISED PENAL CODE?

Four Judges and seventy court employees charged Judge A with willful
defiance of Administrative Order No. 0-123 issued by a Chief Justice and
Memorandum No. 0-123 issued by an Executive Judge. According to seventy-four
complainants, Judge A disobedience of an administrative order is illegal that
draws its basis in the provision of Article 231 of the Revised Penal Code.
This provision of law says, viz:
Article 231. Open Disobedience. Any judicial or executive officer who shall
openly refuse to execute the judgment, decision or order of any superior authority
made within the scope of the jurisdiction of the latter and issued with all the legal
formalities, shall suffer the penalties of arresto mayor in its medium period to
prision correccional in its minimum period, temporary special disqualification in its
maximum period and a fine not exceeding 1,000 pesos. xxx This act of openly
defying the administrative order and memorandum has no legal justification
because no one can openly disobey an order until the orders are revoked. The
indifference of Judge A is motivated by bad faith and deliberate refusal to obey
legal and valid orders that has exposed Judge A to criminal prosecution. Judge
A was Motivated by bad faith, dishonesty, malice, and fraud in deliberately
refusing to obey Administrative Order No. 0-123 and Memorandum No. 0-123 to
get even.
Is Judge A criminally liable in not rendering night court duties? The
answer is in the negative.

The elements of the crime of Article 231 of the Revised Penal Code are:
1. That the offender is a judicial or executive officer;
2. That there is a judgment, decision or order of a superior authority;
3. That such judgment, decision or order was made within the scope of all the
legal formalities; and
4. That the offender is without any legal justification, openly refuses to execute the
said judgment, decision or order, which he is duty bound to obey (2 Viada 575
cited by JBL Reyes, Revised penal Code, Book II, Thirteenth Edition, p. 397)
Not all the elements of the foregoing crime are present in the criminal
complaint.

First, the offending Judge A is not a judicial or executive officer.

One of the WHEREAS clauses of the Administrative Order No. 0-123

states: "The Executive Judges of the Metropolitan Trial Courts and Municipal
Trial in Cities of the Cities and Municipalities comprising Metro X may assign all
judges to hold night court sessions daily from Monday to Friday and on official
holidays and special days." Therefore, Administrative Order No. 0-123 is an
invalid order that is addressed solely to executive judges in Y City and Z City
not to any Judge who is not holding any office like the Office of the Executive

Judge to be considered as a judicial officer under Article 231 of the Revised

Penal Code.

Second, there is an order of a superior authority.

Administrative Order No. 0-123 was issued by the Chief Justice. However,
there was a pending night court protest made that is pending for resolution by the
High Court as a collegial body. Thus, this criminal complaint should be dismissed
on the ground of prematurity.
There is no element of willfulness characterized by perverse attitude to
disobey because of the unresolved protest to the night court that was made
earlier than the criminal complaint by seventy-four complainants. Prematurity is a
ground for the dismissal of any complaint. This criminal complaint is not yet ripe
for judicial determination because of the pendency of protest to the night court.
There must be first resolution of the night court protest before my subsequent
action thereto can be considered as a breach of the norms of judicial ethics.
Ripeness refers to the readiness of a case for litigation; "a claim is not ripe for
adjudication if it rests upon contingent future events that may not occur as
anticipated, or indeed may not occur at all." Without undertaking to survey the
intricacies of the ripeness doctrine it is fair to say that its basic rationale is to
prevent the courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative policies, and also to
protect the agencies from judicial interference until an administrative decision has
been formalized and its effects felt in a concrete way by the challenging parties.
The problem is best seen in a twofold aspect, requiring us to evaluate both the
fitness of the issues for judicial decision and the hardship to the parties of
withholding court consideration. To apply by analogy is the jurisprudence in DBP
vs. Licuanan, G.R. No. 150097, February 26, 2007: Since demand, which is
necessary to make respondents guilty of default, was never made on
respondents, the CA and RTC correctly ruled that the foreclosure was premature
and therefore null and void. The night court protest letter was made earlier than
the criminal complaint of four Judges and seventy court employees. Thus, the
criminal complaint must be dismissed on the ground of prematurity.
Be it noted that there was no deliberate refusal not to obey the same
administrative order instead there was a non-compliance of the same order
because of the pending protest to night court. The protest to night court will
become moot and academic if Judge A will report to night court duties without
waiting for the Supreme Court En Banc resolution. In Gunsi, Sr. vs.
Commissioners, The Commission on Elections, G.R. No. 168792, February
23, 2009, the Supreme Court defined a moot and academic case as follows: A
moot and academic case is one that ceases to present a justiciable controversy
by virtue of supervening events, so that a declaration thereon would be of no
practical value. As a rule, courts decline jurisdiction over such case, or dismiss it
on ground of mootness.
The criminal complaint is not supported by any evidence, rather it consisted
of mere expression of opinion that appeared to be bias towards to the protestant
in the creation of
night
court
because
of
the
Constitutional
and
statutory issues involved similar to opening a convenience store in the
mountaintop. If the protest letter will be read by legal scholars and legal
luminaries, they will not reach the same evaluation and conclusion by the seventyfour complainants. The burden of proof is incumbent upon the seventy-four
complainants who failed to discharge this burden for failure to provide convincing
proof of each and every element of all the charges leveled against Judge A.

Clearly, there was misinterpretation of the actions and protest to night court that
the seventy-four complainants opted to administratively charge Judge A instead
of meeting the vital issues head on and recommending for the speedy resolution
of the night court protest by the Supreme Court En Banc. It was made known on
record that Judge A will report for night court duties upon receipt of the
Supreme Court En Banc resolution pertaining to the protest to night court. This
un-refuted and no-contest fact alone is a sufficient proof of lack of any wrongful
intent as well as criminal intent to commit disobedience. In fact, all court staff of
Judge A who waived their night court protest reported for night court duties
where their attendance sheets are copy furnished to the Office of the Chief
Justice.

Third, such order was not made within the scope of all the legal formalities.

The Administrative Order No.0-123 did not comply fully with the requisites
for validity of administrative order, rules or regulations with penalties which are:
(1) Issued under the authority of law;
(2) Issued within the scope and purview of 1aw;
(3) It must be reasonable;
(4) There must be publication;
(5) If the administrative rules have penal sanctions, the law must itself declare as
punishable the violation of administrative rule or regulation; and
(6) If the administrative rules have penal sanctions, the law should define or fix
the penalty for the violation of administrative rule or regulation.
The case law applicable to this is Executive Secretary et al. vs. Dizon et
al., GR No. 164171, February 20, 2006. Thus, Administrative Order No. 0-123 is
invalid. As such, no rights and obligations are created from it especially that it
was not approved by the Supreme Court En Banc as mandated by our
Constitution. The Chief Justice has deprived the High court as a collegial body of
its constitutional duty to exercise administrative supervision over the judiciary in
unilaterally issuing the questioned administrative order. From this conclusion,
there are no legal formalities for Article 231 of the Revised Penal Code to attach
to it.
Moreover, non-compliance thereof has no corresponding penal sanction,
among other reasons, it uses the word "may" that is merely directory. There is no
question that the Arcinues' motion tailed to comply with the requirement of Section
11, Rule 13 of the 1997 Rules of Civil Procedure. But the above does not provide
for automatic sanction should a party fail to submit the required explanation. It
merely provides for that possibility considering its use of the term "may" (Lim vs.
NPC GR No. 178789, November 14, 2012). The use of the word "may" clearly
shows that it is directory in nature and not mandatory as petitioner contends.
When used in a statute, it is permissive only and operates to confer discretion;
while the word "shall" is imperative, operating to impose a duty which may be
enforced (Ombudsman vs. Undutan Jr., G.R. No. 164679,July 27, 2011).
Evident from the usage of the word "may", the language of the subject provision
denotes that it is merely directory, and not mandatory (San Miguel vs.
COMELEC, G.R. No. 188240, December 23, 2OO9). The use of the word "may"
is ordinarily construed as permissive or directory, indicating that is a matter of
discretion is involved. Thus, the word "may," when used in a statute, does not
generally suggest compulsion (Ombudsman vs. CA, GR No.159395, May 7,

2OO8). Ordinarily the word "may" is directory (Magpayo vs. Republic, GR No. L5387, April 27, 1954 citing Crawford, op. cit., sec. 262, p. 519). Another proof
that the administrative order is directory not mandatory is found at the back page
of the same order stating: xxx WHEREFORE, it is hereby directed that:

Fourth, the offending Judge A is with legal justification in non-complying

with the administrative order on night court duties.

Judge A protest letters showed legal justifications against night court

operations.
The questioned Administrative Order No. 19-2001 is a mere reiteration of
Administrative Order No. 72 dated June 30, 1988 instead of the 1991 Revised
Rules on Summary Procedure. This is an honest mistake committed by the
drafters of Administrative Order No. 0-123 and by the Chief Justice. They
overlooked the fact that Administrative Order No. 0-123 was based in the 1983
Rule on Summary Procedure in Special Cases pursuant to Section 36, Batas
Pambansa Blg. 129. This 1983 Rule on Summary Procedure in Special Cases
was revised by the 1991 Revised Rules on Summary Procedure that took effect
on November 15, 1991. The effect of this revision is that there was a change of
procedure that the objective of speedy disposition of cases will not be attained.
The primary change is the reverse of provisions on duty of the court and the
arraignment, viz:
Under 1983 Rule on Summary Procedure in Special Cases:
Sec. 10. Duty of the Court. - On the basis of the complaint of information and the affidavits
accompanying the same, the court shall make a preliminary determination whether to
dismiss the case outright for being patently without basis or merit, or to require further
proceedings to be taken. In the latter case, the court may set the case for immediate
arraignment of an accused under custody, and if he pleads guilty, may render judgment
forthwith. If he pleads not guilty, and in all other cases, the court shall issue an order,
accompanied by copies of all the affidavits submitted by the complainant, directing the
defendant(s) to appear and submit his counter-affidavit and those of his witnesses at a
specified date not later than ten (10) days from receipt thereof.Failure on the part
of the defendant to appear whenever required, shall cause the issuance of a
warrant for his arrest if the court shall find that a probable cause exists after an
examination in writing and under oath or affirmation of the complainant and his
witnesses.
Under the 1991 Revised Rules on Summary
Procedure:
Sec. 12. Duty of court.
(a) If commenced by complaint. On the basis of the complaint and the
affidavits and other evidence accompanying the same, the court may dismiss the
case outright for being patently without basis or merit and order the release of the
accused if in custody.
(b) If commenced by information. When the case is commenced by
Sec. 13. Arraignment and trial. Should the court, upon a consideration of the
complaint or information and the affidavits submitted by both parties, find no
information, or is not dismissed pursuant to the next preceding paragraph, the
court shall issue an order which, together with copies of the affidavits and other

evidence submitted by the prosecution, shall require the accused to submit his
counter-affidavit and the affidavits of his witnesses as well as any evidence in his
behalf, serving copies thereof on the complainant or prosecutor not later than ten
(10) days from receipt of said order. The prosecution may file reply affidavits
within ten (10) days after receipt of the counter-affidavits of the defense.
cause or ground to hold the accused for trial, it shall order the dismissal of the
case; otherwise, the court shall set the case for arraignment and trial.
If the accused is in custody for the crime charged, he shall be immediately
arraigned and if he enters a plea of guilty, he shall forthwith be sentenced.
Based from the foregoing provisions, there is a material change that
should have been considered by the drafters of Administrative Order No. 0-123
because in the 1983 Rule on Summary Procedure in Special Cases, there is first
an arraignment before the court issue an order, accompanied by copies of all the
affidavits submitted by the complainant, directing the defendant(s) to appear and
submit his counter-affidavit and those of his witnesses at a specified date not later
than ten (10) days from receipt thereof which is reversed in 1991 Revised Rules on
Summary Procedure because there is first a court order for the accused to submit
his counter-affidavit and the affidavits of his witnesses as well as any evidence in
his behalf, serving copies thereof on the complainant or prosecutor not later than
ten (10) days from receipt of said order and the prosecution is given ten (10) days
after receipt of the counter-affidavits of the defense to file reply-affidavits before
arraignment. Because of this, accused of cases covered by 1991 Revised Rules
on Summary Procedure has the right to due process (Article III, Section 1, 1987
Constitution) before arraignment, that is, the right to defer arraignment because of
their right to file counter-affidavits to refute the criminal charges before their
arraignment. Thus, contrary to the WHEREAS clauses on speedy disposition of
cases in the Administrative Order No. 0-123, these cannot be attained. There are
procedural barriers to contend with in the immediate arraignment of the accused in
the night court. Not only with respect to the pertinent provisions of the 1991
Revised Rules on Summary Procedure that hinder the immediate arraignment of
accused in the night court, there are provisions in the 1997 Rules on Civil
Procedure and 2000 Rules on Criminal Procedure that can be availed of by
accused that can negate the laudable objective of speedy disposition of cases in
the first level courts. In other words, the accused can file motions allowed by our
Rules to prevent immediate arraignment. These are as following grounds that are
not exclusive in nature because there are other ways to postpone a case not
explicitly found in the Rules:
Rule 30, Section 3, Revised Rules of Court:
A motion to postpone a trial on the ground of absence of evidence can be
granted only upon affidavit showing the materiality or relevancy of such evidence,
and that due diligence has been used to procure it. But if the adverse party admits
the facts to be given in evidence, even if he objects or reserves the right to their
admissibility, the trial shall not be postponed.
Rule 116, Section 11, Revised Rules of Court:
Upon motion by the proper party, the arraignment shall be suspended in the
following cases:
(1) The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to
plead intelligently thereto. In such case, the court shall order his mental
examination and, if necessary, his confinement for such purpose;

(2) There exists a prejudicial question; and

(3) A petition for review of the resolution of the prosecutor is pending at either the
Department of Justice, or the Office of the President; provided that the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office.
The construction of custody under the law in 1983 Rule on Summary
Procedure in Special Cases and the 1991 Revised Rules on Summary Procedure
presupposes that bail is not required, only in the former, there are few exceptions
that are contrary to right to bail under the 1973 and the 1987 Philippine
Constitutions. To support this is the following case law, Tan vs. Judge
Tabin,
A.M.
No.
MTJ-09-1729,
January
20,
2009
penned by Justice Ma. Alicia Austria- Martinez:
Sections 10 and 12 of the 1983 Rules on Summary Procedure in Special
Cases (As Amended) state:
Sec. 10. Duty of the Court. - On the basis of the complaint of information and the
affidavits accompanying the same, the court shall make a preliminary determination
whether to dismiss the case outright for being patently without basis or merit, or to require
further proceedings to be taken. In the latter case, the court may set the case for
immediate arraignment of an accused under custody, and if he pleads guilty, may render
judgment forthwith. If he pleads not guilty, and in all other cases, the court shall issue an
order, accompanied by copies of all the affidavits submitted by the complainant, directing
the defendant(s) to appear and submit his counter-affidavit and those of his witnesses at
a specified date not later than ten (10) days from receipt thereof.
Failure on the part of the defendant to appear whenever required, shall cause the
issuance of a warrant for his arrest if the court shall find that a probable cause exists after
an examination in writing and under oath or affirmation of the complainant and his
witnesses. (Emphasis supplied)
Sec. 12. Bail not required; Exception. --- No bail shall be required except when a
warrant of arrest is issued in accordance with Section 10 hereon or where the accused
(a) is a recidivist; (b) is fugitive from justice; (c) is charged with physical injuries; (d) does
not reside in the place where the violation of the law or ordinance was committed, or (e)
has no known residence.
Section 12 of the 1983 Rules on Summary Procedure was not reproduced in the
1991 Revised Rules on Summary Procedure, while Section 10 was revised and portions
thereof reproduced in Sections 12 and 16 of the 1991 Rules on Summary Procedure.
Granting, arguendo, that Sections 10 and 12 of the 1983 Rules on Summary Procedure in
Special Cases were not repealed by the 1991 Revised Rules, still it does not justify the
warrant of arrest issued in this case. Section 12 talks of instances when bails are required,
one of which is when the accused does not reside in the place where the violation of the
law or ordinance was committed. It does not state, however, that a warrant of arrest shall
immediately issue even without actual notice to the accused. Respondent's interpretation
ascribes to the rules those which were not expressly stated therein and unduly expands
their meaning.
To add the explication of former Justice Ma. Alicia AustriaMartinez in the foregoing case law is this provision of the 1991 Revised Rules on
Summary Procedure:
Sec. 16. Arrest of the accused. The court shall not order the arrest of
the accused except for failure to appear whenever required. Release of the

person arrested shall either be on bail or on recognizance by a responsible citizen

acceptable to court.
It is vivid that no bail is required thus the accused should not be placed in custody
by the police officers in warrantless arrest.
Section 16 of the 1991 Revised Rules on Summary Procedure is the
Supreme Court En Bancs interpretation that no bail is required contained in the
Laurel law, RA No. 6036, that took effect on August 4, 1968. The seven (7)
exceptions of the RA No. 6036 that bail shall not, with certain exceptions, be
required in cases of violations of municipal or city ordinances and in criminal
offenses when the prescribed penalty for such offenses is not higher than arresto
mayor (6 months) of imprisonment and/or a fine of Two Thousand Pesos (P2,000).
One of the exceptions is when a person is caught committing the offense in
flagrante which is construed as no bail is still required because there is no legal
justification for the arrested person to remain in custody of police officers,
not only because of no bail required under
Section 16 of the 1991 Revised
Rules on Summary Procedure but also because there is no inquest to be
conducted for the purpose of preliminary investigation involving offenses covered
by the Summary Procedure. Persons who are subjected to warrantless arrests
are brought to the public prosecutors for inquest to determine the legality or
illegality of their arrests pursuant to DOJ Circular No. 61 (September 21, 1993)
known as the New Rules on Inquest. To quote the pertinent provisions thereof
from in the article titled Conflicting Practices in Inquest: 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 custody and correspondingly be charged in court.The
inquest prosecutor determines the legality of the warrantless arrest of an arrested
and detained person. When the warrantless arrest was improperly made, the
inquest prosecutor shall, among others, recommend the release of the arrested
and detained person. On the other hand, when the warrantless arrest was
properly made, the inquest prosecutor shall inform the arrested and detained
person if he wants to avail a preliminary investigation, in which case, he shall
execute a waiver of the provisions of Article 125 of the Revised Penal Code. If
the said arrested and detained person did not avail a preliminary investigation or
did not execute a waiver, the inquest prosecutor shall proceed with the inquest. If
the inquest prosecutor finds probable cause, he shall prepare the information
which shall indicate the offense committed and the amount of bail recommended,
if bailable. Indubitably, there is an inquest for the determination of the legality
and propriety of the warrantless arrest.

If there was an illegal or improper warrantless arrest, the inquest

prosecutor shall recommend for the release of the person arrested or detained. In
this situation, bail is definitely not required on the part of the arrested or detained
suspect for violating cases covered by the Rules on Summary Procedure.
Therefore, when a person is caught committing the offense in flagrante under
Section 1 (a) of RA No. RA No. 6036 it does not mean that he will post a bail for
his release. He can invoke Section 16 of the 1991 Revised Rules on Summary
Procedure that no bail is required. The Supreme Court made it a rule that
commands obedience that a first level court cannot issue a warrant for his arrest.
Neither can the court authorize his warrantless arrest because there is no
preliminary investigation required for violation of cases covered by the 1991
Revised Rules on Summary Procedure in relation with Rule 112, Section 1 of the
2000 Rules on Criminal Procedure. Assuming that the suspected person in

warrantless arrest escapes from police custody, the police officers cannot rearrest him because the court shall not issue warrant for his arrest except for his
failure to appear whenever required. More so if there is no information filed
against the suspect subject of warrantless arrest, the court did not acquire yet
jurisdiction over his person.
Former Associate Justice Minita Chico-Nazario made this distinction in
Santiago vs. Vasquez, G.R. Nos. 99289-90, January 27, 1993: One can be
under the custody of the law but not yet subject to the jurisdiction of the court over
his person, such as when a person arrested by virtue of a warrant files a motion
before arraignment to quash the warrant. What more for the first level court to
acquire jurisdiction over the person of arrested or detained person during custody
for the purpose of inquest when it is not empowered to issue warrant of arrest with
only except of failure to appear in court whenever required and no inquest is
required in his case under the 2000 Rules on Criminal Procedure. In fact, even
there is an exercise of the judicial determination of probable cause under Section
12 of the 1991 Revised Rules on Summary Procedure, the court finds the
presence of probable cause that the accused committed the offense so his
arraignment and trial should proceed, it is not empowered to issue warrant of
arrest to bring the accused to its jurisdiction unlike in cases covered by the regular
procedure, when there is probable cause, there is issuance of warrant of arrest by
the court under Rule 112, Section 6 (b) of the Revised Rules of Court. The legal
philosophy of this is for Supreme Court Justices determination for public
information and guidance. Because jurisprudence is about legal philosophy and
Supreme Court Justices as jurists are legal philosophers.
This interpretation may mean 1991 Revised Rules on Summary
Procedure is pro-poor, to enhance access to justice by the poor whose offenses
are petty crimes or misdemeanors that do not call for harsh penalties under the
Revised Penal Code and special penal laws like city or municipal ordinances,
traffic violation, violation of rental laws to name a few. This interpretation is in line
with Supreme Court Justices constitutional mandate under Article VIII, Section
5(5), 1987 Constitution in the exercise of the Rule-Making Power such as to
promulgate rules for the protection and enforcement of constitutional rights and
legal assistance to the under privileged. It is the High Court Justices
constitutional duty to give life to the provision on Social Justice and Human
Rights in Section 1, Article XIII of the 1987 Constitution. In this jurisprudence of
Sy Tiong et al., vs. Sy Chim et al., G.R. No. 174168 March 30, 2009, Wellentrenched rule in statutory construction, that every part of the statute must be
interpreted with reference to the context, i.e., that every part of the statute must
be considered together with the other parts, and kept subservient to the general
intent of the whole enactment. Statutes, including rules, should be construed in
the light of the object to be achieved and the evil or mischief to be suppressed
and they should be given such construction as will advance the object, suppress
the mischief and secure the benefits intended. A statute should therefore be read
with reference to its leading idea, and its general purpose and intention should be
gathered from the whole act, and this predominant purpose will prevail over the
literal import of particular terms or clauses, if plainly apparent, operating as a
limitation upon some and as a reason for expanding the signification of others, so
that the interpretation may accord with the spirit of the entire act, and so that the
policy and object of the statute as a whole may be made effectual and operative
to the widest possible extent. Otherwise stated, the spirit, rather than the letter of
a law determines its construction; hence, a statute, as in the rules in this case,
must be read according to its spirit and intent.

Is preliminary investigation required in cases covered by the 1991 Revised Rules

on Summary Procedure?

The answer is in the negative.

Consequently, there is no basis and justification to detain the arrested suspect
for inquest. To do so is not only anti-poor access to justice as envisioned by the
Laurel law, it will contravene the basic principle of preliminary investigation and
violate the constitutional right to bail under Article III, Section 13 of the 1987
Constitution.
What are the grounds to support this answer? The following are the
pertinent provisions of the Rules of Court starting first with the 1985 Rules of
Court and then followed by 1997 Revised Rules of Court adopted on April 8, 1997
per resolution of the Supreme Court En banc in Bar Matter No. 803:

1985 RULES OF CRIMINAL PROCEDURE

Rules 110 to 127
[As Amended per Resolutions Adopted by the Supreme Court
on June 17, 1988 and July 7, 1989]
CRIMINAL PROCEDURE
RULE 110
PROSECUTION OF OFFENSES
Section 1. How instituted.
For offenses not subject to the rule on summary procedure in special cases, the
institution of criminal actions shall be as follows:
(a) For offenses falling under the jurisdiction of the Regional Trial Courts, by
filing the complaint with the appropriate officer for the purpose of conducting the
requisite preliminary investigation therein;
(b) For offenses falling under the jurisdiction of the Municipal Trial Courts and
Municipal Circuit Trial Courts, by filing the complaint or information directly with
the said courts, or a complaint with the fiscals office. However, in Metropolitan
Manila and other chartered cities, the complaint may be filed only with the office of
the fiscal.
In all cases, such institution shall interrupt the period of prescription of the offense
charged.
XXXXXXXXX
RULE 112
PRELIMINARY INVESTIGATION
Section 1. Definition.
Preliminary investigation is an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to engender a well-founded belief
that a crime cognizable by the Regional Trial Court has been committed and that
the respondent is probably guilty thereof, and should be held for trial.
Sec. 7. When accused lawfully arrested without warrant.
When a person is lawfully arrested without a warrant for an offense cognizable by
the Regional Trial Court the complaint or information may be filed by the offended
party, peace officer or fiscal without a preliminary investigation having been first

conducted, on the basis of the affidavit of the offended party or arresting officer or
person.
However, before the filing of such complaint or information, the person arrested
may ask for a preliminary investigation by a proper officer in accordance with this
Rule, but he must sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, with the assistance of a lawyer and in case of nonavailability of a lawyer, a responsible person of his choice. Notwithstanding such
waiver, he may apply for bail as provided in the corresponding rule and the
investigation must be terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having been
first conducted, the accused may within five (5) days from the time he learns of
the filing of the information, ask for a preliminary investigation with the same right
to adduce evidence in his favor in the manner prescribed in this Rule.
XXX

XXX

XXX

RULE 113
ARREST
Sec. 5. Arrest without warrant; when lawful.
A peace officer or a private person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating 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 temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he
shall be proceeded against in accordance with Rule 112, Section 7.
THE REVISED RULES OF CRIMINAL PROCEDURE
(RULES 110 - 127, RULES OF COURT)
[Effective December 1, 2000]
RULE 110 - PROSECUTION OF OFFENSES
Section 1. Institution of criminal actions. Criminal actions shall be instituted
as follows:
(a) For offenses where a preliminary investigation is required pursuant to section
1 of Rule 112, by filing the complaint with the proper officer for the purpose of
conducting the requisite preliminary investigation.
(b) For all other offenses, by filing the complaint or information directly with the
Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with
the office of the prosecutor. In Manila and other chartered cities, the complaints
shall be filed with the office of the prosecutor unless otherwise provided in their
charters.

The institution of the criminal action shall interrupt the running of the period of
prescription of the offense charged unless otherwise provided in special laws.
XXX

XXX

XXX

RULE 112 - PRELIMINARY INVESTIGATION

Section 1. Preliminary investigation defined; when required. 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.
Except as provided in Section 7 of this Rule, a preliminary investigation is
required to be conducted before the filing of a compliant or information for an
offense where the penalty prescribed by law is at least four (4) years, two (2)
months and one (1) day without regard to the fine.
X X X X X X X X X
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person
to be arrested has committed it; 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.
In cases falling under paragraphs (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the nearest police station
or jail and shall be proceeded against in accordance with section 7 of Rule 112.
Based from the foregoing, only criminal cases cognizable by the
Regional Trial Court can be subjected to preliminary investigation in the 1985
Rules of Criminal procedure. Legal luminary and former Court of Appeals Justice
Oscar Herrera, a consultant of Narvasa Committee for the revision of 1985 Rules
on Criminal procedure, wrote that formerly the right to preliminary investigation
refers only to offenses cognizable by the Regional Trial Court.6 Hence, cases
covered by the Summary Procedure are not subject for inquest proceedings for
the purpose of preliminary investigation. There are few changes with the
foregoing Rules, noticeable is the imposition of the requirement for offenses
covered by the preliminary investigation by putting the penalty prescribed by law
is at least four (4) years, two (2) months and one (1) day without regard to the
fine. Because of this, cases within the jurisdiction of the first level courts like the
Metropolitan Trial Courts are now subject to preliminary investigation like violation
of PD No. 1602 (Illegal Gambling) with penalties of among others, prision
correctional in its medium period or a fine from P1,000 to P6,000, Grave
Coercion with penalties of prision correctional and fine not more than P6,000,
acts of lasciviousness with penalty of prision correctional, Theft of P200 to
P6,000 value of the stolen property with penalty of prision correctional in its
minimum and medium periods, and violation of PD No. 1866 with penalty of

among others, prision correctional to state a few examples. When the suspect
was caught in flagrante delicto and was arrested by police officers for committing
the enumerated examples of crime or offense, the warrantless arrest is proper and
justified for inquest purposes because preliminary investigation is required. Their
detention is also proper and justified because they will be required to execute a
waiver for arbitrary detention under Article 125 of the Revised Penal Code under
DOJ Circular No. 61. But this is not so with criminal cases under the 1991 Revised
Rules on Summary Procedure which are:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty prescribed by law for the offense
charged is imprisonment not exceeding six months, or a fine not exceeding
(P1,000.00), or both, irrespective of other imposable penalties, accessory or
otherwise, or of the civil liability arising therefrom: Provided, however, that in
offenses involving damage to property through criminal negligence, this Rule
shall govern where the imposable fine does not exceed ten thousand pesos
(P10,000.00).
This Rule shall not apply to a civil case where the plaintiffs cause of action is
pleaded in the same complaint with another cause of action subject to the
ordinary procedure; nor to a criminal case where the offense charged is
necessarily related to another criminal case subject to the ordinary procedure.
The last paragraph will explain the nature of custody under Section 12 (a)
and Section 13 of the 1991 Revised Rules on Summary Procedure. Because no
bail is required, the accused is in custody because the crime or offense he
committed covered by the Summary Procedure is complexed with crime or
offense covered by the Regular Procedure for example Slight Physical Injuries
complexed with Rape, a preliminary investigation is mandatory for the charge of
Rape but not physical injuries. As a general rule, new Rules of Court on
procedure apply to pending cases (People vs. Sumilang, 77 Phil. 764). Being
procedural in nature, those provisions may be applied retroactively (Executive
Order No. 864, dated January 17, 1983 cited in Alday vs. Camilon 120 SCRA
522).
Moreover, the custody mentioned in the 1983 Rule on Summary
Procedure in Special Cases and the 1991 Revised Rules on Summary Procedure
would also refer to the institution of the case by complaint before first level courts
outside Manila and other chartered cities. The judges of first level courts outside
the territory of Manila and other chartered cities conduct preliminary investigation
of the complaint before. This is not true today. Therefore, no custody of the
suspect or accused can be justified. It is by practice that suspect or accused is in
custody while conducting a preliminary investigation or probable cause for
indictment copied with the inquest procedure for preliminary investigation by the
Regional Trial Courts. This practice is not supported by the Rules of Court. The
case law to support this removal of preliminary investigation in the first level courts
is penned by our current PHILJA Chancellor and former Justice Adolfo S. Azcuna
who is greatly credited for his monumental contribution regarding the Rules on the
Writ of Amparo (A.M. No. 07-9-12-SC). In Sibulo vs. Judge Mupas, A.M. No.
MTJ-07-1686, June 12, 2008: As correctly pointed out by complainant, judges of
first level courts are no longer authorized to conduct preliminary investigation. This
is pursuant to the amendment made by the Supreme Court on August 30, 2005 in
A.M. No. 05-8-26-SC Re: Amendment of Rules 112 and 114 of the Revised Rules
on Criminal Procedure by Removing the Conduct of Preliminary Investigation
from Judges of the First Level Courts, which took effect on October 3, 2005. The

Supreme Court even now strongly reiterates that incumbent judges should
relentlessly be mindful that the Rules on Summary Procedure were issued for the
purpose of achieving "an expeditious and inexpensive determination of cases"
and were espoused primarily to enforce the constitutional rights of litigants to the
speedy disposition of cases; hence, strict adherence to their letter and intent
should at all times be earnestly observed. The Revised Rules of Criminal
Procedure (Rules 110 to 127 of the Revised Rules of Court) that became effective
on December 1, 2000 can be applied suppletorily with the 1991 Revised Rule on
Summary Procedure.
In view of the foregoing, there is no more reason to construe the term
custody appearing in 1983 Rule on Summary Procedure in Special Cases and the
1991 Revised Rules on Summary Procedure to be justified and proper under
preliminary investigation of complaint by judges of first level courts outside Manila
and other chartered cities. Because of this, the accused arrested during the night
in Metro Cities and all other chartered cities cannot be compelled to undergo an
arraignment immediately. They can invoke Section 12 of the 1991 Revised Rules
on Summary Procedure to be given time to submit their counter-affidavits. They
can also post bail at night time at the same time questioned the legality of their
arrest and subsequent inquest because of Section 16 of the 1991 Revised Rules
on Summary Procedure in relation with Section 1, Rule 112 of the 2000 Rules of
Criminal Procedure. Under the same section of the Rules, when the court received
the Information, the first duty is to determine probable cause, then require the
submission of counter-affidavit within ten (10) days and set the case for
arraignment. To perform a duty that is contrary to the 1991 Revised Rules on
Summary Procedure merits a disciplinary sanction for gross ignorance of
the law and procedure. The provisions of
1991 Revised Rules on Summary
Procedure are mandatory. There are many case laws to support this emphasis.
There are many judges who were found administratively liable for gross ignorance
of the 1991 Revised Rules on Summary Procedure.
The questioned Administrative Order No. 10-123 reiterated
Administrative Circular No. 58-002, November 14, 2002 for the expeditious
disposition of criminal cases involving tourists. This is again an honest mistake
committed by the drafters of administrative order. They overlooked the existence
of RA No. 4908 approved on June 17, 1967, an act requiring judges of the courts
speedily to try criminal cases wherein the offended party is a person about to
depart from the Philippines with no definite intention of return, to quote a pertinent
portion of it: The trial in these 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 the ground of the illness on the part of the accused or other
grounds beyond the control of the accused. This is clear also that the tourist
accused of the crime shall not be arraigned immediately like our countrymen
accused of the crime covered by Summary Procedure. The tourist accused can
also question his arrest, detention and immediate arraignment at night before the
night court. He can also post a bail while questioning the legality of his arrest and
detention under the following 2000 Rules of Criminal Procedure under Rule 114
aside from the above-cited provisions of the 1991 Revised Rules on Summary
Procedure so that no arraignment will proceed defeating the objective of speedy
disposition of criminal case in Administrative Order No. 19-2011:
Sec. 4. Bail, a matter of right; exception. All persons in custody shall be
admitted to bail as a matter of right, with sufficient sureties, or released on
recognizance as prescribed by law or this Rule (a) before or after conviction by
the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities,
or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial

court of an offense not punishable by death, reclusion perpetua, or life imprisonment.

Sec. 16. Bail, when not required; reduced bail or recognizance. No bail shall be
required when the law or these Rules so provide.
Sec. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary
investigation. An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued therefore, or
from assailing the regularity or questioning the absence of a preliminary investigation
of the charge against him, provided that he raises them before entering his plea. The
court shall resolve the matter as early as practicable but not later than the start of the
trial of the case.
Likewise, nothing can prevent the tourists from other countries who stayed
here for brief vacation to leave our country anytime when they are charged with criminal
cases covered by the 1991 Revised Rules on Summary Procedure because of the SC
circular and the DOJ Rules on Hold Departure Order (HDO). Among the exclusions of
the coverage of HDO are the criminal cases covered by the 1991 Revised Rules on
Summary Procedure. This is a big blow to Administrative Order No. 0-123 in its pursuit
of swift justice.

The jurisprudence of Luz vs. People, G.R. No. 797788, February 29, 2012
supports one of the legal arguments. In this landmark case, it was held, under
R.A. 4136, or the Land Transportation and traffic Code, the procedure for
dealing with traffic violation is not the arrest of the offender but the confiscation of the
driver's license of the latter. At the time that he was waiting for PO3 Alteza to write his
citation ticket, petitioner could not be said to have been "under arrest." There was no
intention on the part of PO3 Alteza to arrest him, deprive him of his liberty, or take him
into custody. Prior to the issuance of the ticket, the period in which at the police station
may be characterized merely as waiting time. In fact, as found by the trial court, PO3
Alteza himself testified that the only reason they went to the police sub-station was that
petitioner had been flagged down "almost in front" of that place. Hence, it was only for
the sake of convenience that they were waiting there. There was no intention to take
petitioner into custody. It also appears that, according to City Ordinance No. 98012,
which was violated by petitioner, the failure to wear a crash helmet while riding a
motorcycle is penalized by a fine only. Under the Rules of Court, a warrant of arrest
need not be issued if the information or charge was filed for an offense penalized by a
fine only. It may be stated as a corollary that neither can a warrantless arrest be made
for such an offense. Now to relate this jurisprudence with the 1991 Revised Rules on
Summary Procedure, one of the offenses under the same Rules is violation of traffic
laws, rules and regulations [Section 1, B (1) RRSP] that is covered by A.O. No. 192011. Therefore, the arrest and detention of nighttime violators of traffic law, rules and
regulations for the night court operation under A.O. No. 19-2011 are illegal.

Under Section 1, Rule XVII of the Omnibus Rules Implementing Book V of the
Administrative Code of 1987:
Officers and employees of all departments and agencies, except those covered by
special laws, shall render not less than eight (8) hours of work a day for five days a
week or a total of forty (40) hours a week, exclusive of time for lunch. As a general rule,
such hours shall be from eight o'clock in the morning to twelve o'clock noon and from
one o'clock to five o'clock in the afternoon on all days except Saturdays, Sundays and
Holidays."

The foregoing provisions of law lay the ground rules on government officer hours.
It mandates an eight-hour daily work schedule, or a total of forty hours a week, for all
government employees, exclusive of the lunch break. Night court duties are from 4:30
p.m. to 11:00 p.m., these are beyond the Principle of Eight Hour Period of Work.

However, none of the judges and court personnel reporting for night court duties
can avail of overtime pay because of Sections 278 and 283, Chapter 4, Volume I,
Government Accounting and Auditing Manual for lack of urgency of work completion.
This a violation of constitutional rights under Article II, Section 18 and Article XIII,
Section 3 of the 1987 Constitution. In PNB vs. PEMA and CIR, G.R. No. L-30279, July
30, 1982: Why is a laborer or employee who works beyond the regular hours of work
entitled to extra compensation called in this enlightened time, overtime pay? Verily,
there can be no other reason than that he is made to work longer than what is
commensurate with his agreed compensation for the statutorily fixed or voluntarily
agreed hours of labor he is supposed to do. When he thus spends additional time to his
work, the effect upon him is multifaceted: he puts in more effort, physical and/or mental;
he is delayed in going home to his family to enjoy the comforts thereof; he might have
no time for relaxation, amusement or sports; he might miss important pre-arranged
engagements; etc., etc. It is thus the additional work, labor or service employed and the
adverse effects just mentioned of his longer stay in his place of work that justify and is
the real reason for the extra compensation that he called overtime pay. Overtime work
is actually the lengthening of hours developed to the interests of the employer and the
requirements of his enterprise. It follows that the wage or salary to be received must
likewise be increased, and more than that, a special additional amount must be added
to serve either as encouragement or inducement or to make up for the things he loses
which we have already referred to. And on this score, it must always be borne in mind
that wage is indisputably intended as payment for work done or services rendered.

In the landmark case of Ynot vs. IAC, G.R. No. 74457, March 20, 1987, the
Supreme court notes that "if the petitioner had not seen fit to assert and protect his
rights as he saw them, this case would never have reached us and the taking of his
property under the challenged measure would have become a fait accompli despite its
invalidity. We commend him for his spirit. Without the present challenge, the matter
would have ended in that pump boat in Masbate and another violation of the
Constitution, for all its obviousness, would have been perpetrated, allowed without
protest, and soon forgotten in the limbo of relinquished rights. The strength of
democracy lies not in the rights it guarantees but in the courage of the people to
invoke them whenever they are ignored or violated. Rights are but weapons on the
wall if, like expensive tapestry, all they do is embellish and impress. Rights as
weapons must be a promise of protection. They become truly meaningful and fulfill the
role assigned to them in the free society if they are kept bright and sharp with use by
those who are not afraid to assert them."

The actual case is OCA IPI No. 11-2378-MTJ

Judge Bibiano Colasito, Vice
Executive Judge Bonifacio Pascua, Judge Restituto Mangalindan Jr. , Judge
Catherine Manodon, Miguel Infante, Emma Annie Arafiles, Racquel Diano, Pedro
Doctolero Jr., Lydia Casas, Auxencio Clemente, Ma. Cecilia Gertrudes R. Salvador,
Zenaida N. Geronimo, Virginia D. Galang, Elsa Garnet, Amor Abad, Emelina J. San
Miguel, Maxima C. Sayo, Romer H. Aviles, Froilan Robert L. Tomas, Dennis M.
Echegoyen, Norman Garcia, Noel Labid, Eleanor N. Bayog, Leilani A. Tejero
Lopez, Ana Maria V. Francisco, Soledad J. Bassig, Marissa Mashhoor Rastgooy,

Marie Luz M. Obida, Evelyn P. Depalobos, Joseph B. Pamatmat, Zenaida N.

Geronimo, Benjie V. Ore, Fortunato E. Diezmo, Nomer B. Villanueva, Edwina A.
Jurok, Fatima V. Rojas, Eduardo E. Ebreo, Ronalyn T. Almarvez, Ma. Victoria C.
Ocampo, Elizabeth Lipura, Mary Ann J. Cayanan, Manolo Manuel E. Garcia,
Petronilo C. Primacio Jr., Edward Eric Santos, Armina B. Almonte, Elizabeth G.
Villanueva, Erwin Russ B. Ragasa, Bien T. Camba, Marlon M. Suligan, Chanda B.
Tolentino, Ferdinand R. Molina, Lanie F. Aguinaldo, Jasmine L. Lindain, Emilio P.
Domine, Arnold P. Obial, Ricardo E. Lampitoc, Jerome H. Aviles, Ana Lea M.
Estacio, Cristina E. Lampitoc, Melanie DC Begasa, Evangeline M. Ching, Karla Mae
Pacunayen, Ronaldo S. Quijano, Domingo H. Hocosol, Edwin P. Ubana, Marvin O.
Balicuatro, Ma. Luz D. Dionisio, Maribel A. Molina, Sevilla B. Del Castillo, Aida
Josefina Ignacio, Benigno A. Marzan, Ignacio Gonzales, Lawrence D. Perez, and
Edmundo Vergara vs. Judge Eliza B. Yu

The Philippine Supreme Court sustained the legal arguments of Judge Eliza B. Yu.

16