FIRING MISSES (Terminating Employment the Philippine Way)

By Siesta-friendly

For business folk, Philippine labor laws can be too protective of labor. And it’s not as simple as Mr. Donald Trump saying “you’re fired!”  The prime example is the provisions on security of tenure -

“ART. 279. Security of tenure. - In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title.”

The Labor Code’s Implementing Rules specifically Rule I, Book VI add the relevant security of tenure provisions applicable to non-regular employees –

“Section 2. Security of tenure.

xxx

b)      The foregoing [security of tenure provisions in cases of regular employment] shall also apply in cases of probationary employment: Provided, however, that in such cases, termination of employment due to failure of the employee to qualify in accordance with the standards of the employer made known to the former at the time of engagement may also be a ground for termination of employment.

c)      In cases of employment covered by contracting or subcontracting arrangements, no employee shall be dismissed prior to the expiration of the contract between the principal and contractor or subcontractor as defined in Rule VIII-A, Book III of these Rules, unless the dismissal is for just or authorized cause, or is brought about by the completion of the phase of the contract for which the employee was engaged but, in any case, subject to the requirements of due process or prior notice.”

Just and Authorized Causes for Termination

So, in general, just or authorized causes naturally negate security of tenure. What are these just or authorized causes?

The just causes for terminating an employee are found in Article 282 of the Labor Code:

“ART. 282. Termination by employer. - An employer may terminate an employment for any of the following causes:

(a)    Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b)    Gross and habitual neglect by the employee of his duties;

(c)    Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

(d)   Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

(e)    Other causes analogous to the foregoing.”

The authorized causes are in the succeeding articles: 283 (Closure of establishment and reduction of personnel) and 284 (Disease as ground for termination).  They are as follows:

1)      installation of labor-saving devices

2)      redundancy

3)      retrenchment to prevent losses

4)      the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, or

5)      when the employee has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees.

And if you fire your employee without any legal cause?

“An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.” (ART. 279.).

Backwages, mind you, can run indefinitely as long as the case is pending thereby resulting in a windfall for the employee.  Unless, of course, you’re PAL or you have PAL’s lawyer and a mere letter to the Supreme Court can change everything.

Anyway, here’s what the Supreme Court has had to expound on the matter -

“… an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement.  The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted.  In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages.

           

The normal consequences of [the employee’s] illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement.  Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative.  The payment of separation pay is in addition to payment of backwages.” (Mt. Carmel College vs. Resuena, et al. G.R. No. 173076, October 10, 2007)

Due Process: 2 Written Notices + 1 Hearing rule

Finding just or authorized causes is not enough.  The laws are strict on due process and have imposed the following requirements –

“For termination of employment based on just cases as defined in Article 282 of the Labor Code:

(i)     A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.

(ii)   A hearing or conference during which the employee concerned, with the assistance of counsel, if he so desires, is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.

(iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.

For termination of employment as defined in Article 283 of the Labor Code, the requirement of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate Regional Office of the Department of Labor and Employment at least thirty days before effectivity of the termination, specifying the ground or grounds for termination.

If the termination is brought about by the completion of a contract or phase thereof, or by failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination.” (Section 2, Rule I, Book VI, Implementing Rules of the Labor Code)

Check out how the Supreme Court strictly applied the due process rule despite the existence of sufficient cause for termination -

“.. respondent [employee] was not issued a written notice charging him of committing an infraction. The law is clear on the matter. A verbal appraisal of the charges against an employee does not comply with the first notice requirement. In Pepsi Cola Bottling Co. v. NLRC, the Court held that consultations or conferences are not a substitute for the actual observance of notice and hearing. Also, in Loadstar Shipping Co., Inc. v. Mesano, the Court, sanctioning the employer for disregarding the due process requirements, held that the employee’s written explanation did not excuse the fact that there was a complete absence of the first notice.

Second, even assuming that [employer] petitioner KKTI was able to furnish respondent an Irregularity Report notifying him of his offense, such would not comply with the requirements of the law. We observe from the irregularity reports against respondent for his other offenses that such contained merely a general description of the charges against him. The reports did not even state a company rule or policy that the employee had allegedly violated. Likewise, there is no mention of any of the grounds for termination of employment under Art. 282 of the Labor Code. Thus, KKTI’s "standard" charge sheet is not sufficient notice to the employee.

Third, no hearing was conducted. Regardless of respondent’s written explanation, a hearing was still necessary in order for him to clarify and present evidence in support of his defense. Moreover, respondent made the letter merely to explain the circumstances relating to the irregularity in his October 28, 2001 Conductor’s Trip Report. He was unaware that a dismissal proceeding was already being effected. Thus, he was surprised to receive the November 26, 2001 termination letter indicating as grounds, not only his October 28, 2001 infraction, but also his previous infractions.

xxx

WHEREFORE, the petition is PARTLY GRANTED and the September 16, 2004 Decision of the CA is MODIFIED by deleting the award of backwages and 13th-month pay. Instead, petitioner KKTI is ordered to indemnify respondent the amount of thirty thousand pesos (PhP 30,000) as nominal damages for failure to comply with the due process requirements in terminating the employment of respondent.” (King Of Kings Transport, et al. vs, Tinga, et al., G.R. No. 166208, June 29, 2007).  

So employers, be very careful how you hire and fire your people. Even with a just or authorized cause for termination and the termination is declared legal, you may still end up being penalized for not following the required manner by which the firing should have been done.  There may be no award of backwages, reinstatement or separation pay but you may still be ordered to pay nominal damages as in the case above.

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CAM ON QUEZON CITY (Why Quezon City’s “no CCTV, no business permit” policy is unconstitutional)

By Siesta-friendly

Several news articles last week reported Quezon City’s plans to “strictly implement the no-CCTV no business permit policy in line with the city’s peace and order campaign particularly against carnapping and kidnapping ... CCTVs will also be used by the city for disaster preparedness purposes …”.[1]  

Before Quezon City enacts a law to that effect, they should find guidance from the Bill of Rights -

“No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. “ (Sec. 1, Article III Bill of Rights means, Philippine Constitution)

The Due Process and Equal Protection clauses above mean that if a government plans to restrict an individual or a class of individuals’ rights to life, liberty, property and equality, the restriction must be reasonable and not arbitrary and such individuals or classes must be treated in the same manner as others in similar conditions and circumstances

Should Quezon City be of the impression that they can proceed with their policy in its exercise of police power, the Supreme Court has several times upheld the doctrine that -

The “exercise of police power is subject to judicial inquiry and could be set aside if it is either capricious, discriminatory, whimsical, arbitrary, unjust, or a denial of the due process and equal protection clauses of the Constitution.”[2]

Equal Protection of the Laws

The Supreme Court, as recently as December 2010 in the consolidated cases declaring the unconstitutionality of the Truth Commission[3] - having been tasked to investigate corruption only during Gloria Arroyo’s administration - , reiterated the settled doctrine that to be valid, a law which denies protection to one class of subject “must pass the test of reasonableness. The test has four requisites: (1) The classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It applies equally to all members of the same class.”

By requiring only businesses to install CCTV cameras, Quezon City has denied protection to the former that other classes like individuals, residences, government agencies, non-profit entities enjoy since the latter classes are not similarly required.

The classification must rest on substantial distinctions

In the context of peace and order for which the CCTVs are apparently required, what is the substantial distinction between businesses and other entities that justifies Quezon City’s singling out businesses?  Are residences and government offices free from crime?  Do all businesses pose a significantly high crime risk than other entities?  Quezon City has a high rate of carnapping.  Are the carnap victims predominantly business owners or do the incidents mostly occur in business premises?

What is the relation of crime and disaster preparedness to business establishments which does not exist with other entities that only businesses are required to install CCTV cameras?

Let’s take an example of reasonable classification. Requiring banks to have CCTV cameras is not unreasonable because of the money and other valuables deposited therein, the interest by their depositors in the safety of their deposits and the banks’ easy accessibility to the general public.  Banks are clearly substantially different from all other entities in any given city and may be justifiably required to raise their security by installing CCTV cameras in the interest of peace and order. Although in the interest of disaster preparedness … not so much.

The classification must be germane to the purpose of the law

What binds all businesses together that they should all be required, regardless of nature, purpose, size, location, or anything else, to install CCTVs in the interest of peace and order and disaster preparedness?    

How crucial is it for a beauty parlor to have a CCTV camera in the pursuit of peace and order and disaster preparedness?  What crimes and disasters in a carinderia would a CCTV camera frequently capture?  What is so precious inside a bakery – or how disaster prone exactly is a bakery - that CCTV cameras must be installed?  What threat to peace and order and disaster risk is being prevented by installing a CCTV camera in a Mr. Quickie shop?

                        

What is it in all business establishments that attracts threats to peace and order and raises the risks of disaster that necessitate the installation of CCTV cameras in their premises, which other entities have not?  

The classification applies equally to all members of the same class

“The mayor [Herbert Bautista] reminded business establishments, particularly the high-risk ones such as car dealership stores (both high-end and trade-ins), as well as schools, convenience stores, gasoline stations and banks to comply with the CCTV requirement or face non-renewal of their business permit.”[4] 

If the mayor readily admits some businesses as high-risk, why then require all businesses to install CCTV cameras? 

In the case of businesses that own shops, stalls and carts, where should the CCVTV cameras be installed, in the office or in each of their shops, stalls and carts or in all of them?  Do all shops, stalls and carts in a mall need to have a CCTV camera each?

And in the near future when people realize that CCTV cameras do not substantially prevent crime – as frequent news reports of crimes captured by CCTV cameras (here and abroad) show and because criminals can so readily buy and put on ski masks – nor crucially alert people to disasters, what then?  Should the whims of a city government be allowed to extend to a new law requiring all businesses to employ security guards prior to obtaining their business licenses?  Whims can be so hard to suppress.

The job of peace and order preservation and disaster prevention belongs to the government.  It is already unfair for any government to delegate that job, especially a first class city that should have enough funds to effectively accomplish such job.  It becomes more unreasonable and arbitrary when the government singles out a class of subjects for purposes that affect other classes equally.

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[1]  Chavez, C.A. (2011, June 14). QC wants CCTV as tool to deter crimes and disasters. Retrieved from http://www.mb.com.ph/articles/322632/qc-wants-cctv-tool-deter-crimes-and-disasters

[2]  Central Bank v. Court of Appeals, G.R. Nos. L-50031-32, July 27, 1981, 106 SCRA 143

[3]  Biraogo v. The Philippine Truth Commission of 2010 (G.R. No. 192935) and Lagman, et al. vs. Executive Secretary, et al. (G.R. No. 193036), December 7, 2010, citing Beltran v. Secretary of Health, 512 Phil 560, 583 (2005).

[4]  Chavez, ibid.

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Due Process for All

By Siesta-friendly

No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.[1]

If only everybody would find these words as precious as their own lives, liberties, and properties.  For from these words do we go out and return home in peace.   

Thus, it is maddening to hear criticisms against those who denounce the police force’s apparent lack of respect for due process in subduing their suspects.  Why people find it acceptable that extralegal means can be used to fight crime indicates a chilling lack of respect for every person’s fundamental rights.    

The latest example is that of the killing of suspected carnapping syndicate leader Ivan Padilla.  Padilla was finally caught after an alleged shootout.  News cameramen arrived on the scene and the police called their attention to presumably film the wounded Ivan then sitting at the back of a police van.  A remarkable scene considering Ivan had just been shot in the head.  The film showed he was, however, still conscious and able to answer his name when asked.  After the very short “news interview”, the van left.  30 minutes later, Padilla was left alone in a hospital 15 minutes away from the “shootout” scene. Within 10 minutes, he was declared dead.  The death certificate signed by the Makati Health Department and funeral officials stated his death was due to “asphyxia as a result of blunt force to the throat.”[2]

From the “alleged” shootout, the lack of care in handling a seriously wounded suspect, the delay in bringing to the hospital the suspect who’d been shot, the cause of death coming out of nowhere, the police actions surrounding the arrest and death of Ivan Padilla raise suspicions.

But why don’t we just celebrate the death of a serial carnapper, a scourge of society, instead of question the police’s actions?  Because without due process, where evidence are laid out and the accused is given the opportunity to defend himself and refute the evidence against him, the fact of the crime and the guilt of the criminal are left to the discretion of government authorities.  Think of all the extrajudicial killings - of farmers, laborers and students – allegedly made by the military in their fight against “insurgents”.  Without due process, the number of our extrajudicial killings would increase and shame the Khmer Rouge.

Without due process, all that law enforcement forces need is the belief that a crime has been committed, that the suspects committed it and the suspect needs to be eliminated.  We might as well abolish the courts.

Without due process, law enforcers can easily claim “shootouts” in neutralizing suspects and no one can make law enforcers accountable for their lapses or excesses or outright lies during these encounters. 

With no respect for due process, Engr. Alfonso De Vera’s SUV was shot 84 times with 24 shots concentrated on the vehicle's windshield and bumper as the SUV ended at the tail end of a vehicle convoy of bank robbers the Philippine National Police’s Highway Patrol Group had just then intercepted and engaged in a shootout.  After alighting from his SUV to carry his 7-year old daughter to safety, the police pursued, shot and killed him and his daughter.  Engr. De Vera and his daughter, Lia, were among 6 innocent bystanders killed in the encounter.[3]  Engr. De Vera and his daughter were both shot in the head.[4]  

In the case of the De Veras, the Commission on Human Rights found that the police violated the Police Operational Procedures including Rule 8 which states: “Moving vehicles may not be fired upon solely to disable them. The driver or other occupant of a moving motor vehicle may be fired upon if the police have probable cause to believe that the suspects pose an imminent danger of death to the police or other persons.”[5]   With no apparent threat coming from the De Veras, the sole assumption by the police that the De Veras were robbers sealed their deaths.

Unforgettable and heartbreaking, the killing of the De Veras is distressingly only one of many instances of the acute disregard of government authorities for fundamental human rights.

These days, shootouts are not that uncommon in the Philippines.  Are our criminals that violent or are our law enforcers just undisciplined?  How many among the victims of law enforcers are totally innocent?  How many shootouts are actually rubouts? Without due process, we wouldn’t know.

It is a truism that it is better that the courts acquit ten guilty men than mistakenly imprison one innocent man.   A verdict of guilty as passed by the courts is subject to appeal.  But before it is issued, the evidence is heard.  A verdict of guilty from the barrel of a gun is final and unappealable.  Nothing is heard except the wails of the bereaved. 

---

[1]  Sec. 1, Art III, 1987 Constitution

[2]  Chr to probe padilla's death; mom suspects rubout . (2010, August 4). Retrieved from http://www.abs-cbnnews.com/nation/08/04/10/padillas-family-urges-chr-probe-ivans-death

[3]  Dizon , N. (2009, January 7). Only cops could have killed de veras . Retrieved from http://www.inquirer.net/specialreports/paranaqueshootout/view.php?db=1&article=20090107-182002

[4]  A Letter from lilian de vera. (2009, March 17). Retrieved from http://www.filipinowriter.com/a-letter-from-lilian-de-vera

[5]  Kwok, A, & Dizon, N. (2010, January 11). Charge cops in death of 16 in parañaque shootout—chr . Retrieved from http://www.inquirer.net/specialreports/paranaqueshootout/view.php?db=1&article=20100111-246713

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THE POISON TREE (On Inadmissible evidence)

By Obiter07

The Supreme Court has used this phrase “fruit of the poisonous tree” in a number of cases. It is not an agricultural term, but something that was coined with respect to the inadmissibility of evidence illegally obtained. It is a legal doctrine that serves to enforce the prohibition against illegal searches and seizures as enshrined in the Constitution.

Sections 1, 2 and 3 of Art. III of the Constitution read:

“Section 1. No person shall be deprived of life, liberty, or property without due process of law …

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge. . .

SEC. 3. . . .

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. . ..”

So what is this tree and why is its so- called fruit poisonous? As held in EJERCITO vs. SANDIGANBAYAN, et al. [G.R. Nos. 157294-95. November 30, 2006.]:

“The "fruit of the poisonous tree" principle, which states that once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible, xxx”

This means that any evidence that is to be used against the accused must have been obtained through legitimate means. Anything that can be traced to an unlawful search or seizure may not be used as evidence against the accused. How does this work in practical terms?

Case samples

In VALDEZ vs. PEOPLE [G.R. No. 170180. November 23, 2007.], the factual milieu was as follows:

“Bautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was conducting the routine patrol along the National Highway in Barangay San Benito Norte, Aringay, La Union together with Aratas and Ordoño when they noticed petitioner, lugging a bag, alight from a mini-bus. The tanods observed that petitioner, who appeared suspicious to them, seemed to be looking for something. They thus approached him but the latter purportedly attempted to run away. They chased him, put him under arrest and thereafter brought him to the house of Barangay Captain Orencio Mercado (Mercado) where he, as averred by Bautista, was ordered by Mercado to open his bag. Petitioner's bag allegedly contained a pair of denim pants, eighteen pieces of eggplant and dried marijuana leaves wrapped in newspaper and cellophane. It was then that petitioner was taken to the police station for further investigation.”

The Court, in acquitting the accused made a number of findings in disallowing the evidence against him. The evidence against the accused may only be admissible if incident to a lawful arrest. None of the circumstance where an arrest without warrant is lawful was found to obtain in the case at bar.[1]

The accused has just alighted from the bus. Even if it were true that he ran from the tanods, flight is not synonymous with guilt. “It is not unreasonable to expect that petitioner, walking the street at night, after being closely observed and then later tailed by three unknown persons, would attempt to flee at their approach.” Under the circumstances, “petitioner's flight lends itself just as easily to an innocent explanation as it does to a nefarious one.”

The accused has the right “to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty being a most basic and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law."

The same legal principle was relied upon in another case where the accused was accosted as he alighted from a ship and his personal effects searched [PEOPLE vs. AMINNUDIN, G.R. No. 74869. July 6, 1988.]. The authorities had every opportunity to secure a warrant to arrest and search but failed to do so. They had advanced knowledge of his identity and even the ship he was to board and seized him based on the “furtive finger” of an informant. There was no basis for a warrantless arrest and therefore no basis for the ensuing search and seizure of the marjiuana he was allegedly carrying.

Without the evidence of the marijuana seized from the accused, there is no basis for the charge against him. That evidence cannot be admitted since it is “the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase.” The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible.

The Court stated that those “who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminal should escape than that the government should play an ignoble part."

Warrantless Searches

There are recognized exceptions where “a search may be validly made without warrant and articles may be taken validly as a result of that search.” These include “a warrantless search … made incidental to a lawful arrest, as when the person being arrested is frisked for weapons he may otherwise be able to use against the arresting officer. Motor cars may be inspected at borders to prevent smuggling of aliens and contraband and even in the interior upon a showing of probable cause. Vessels and aircraft are also traditionally removed from the operation of the rule because of their mobility and their relative ease in fleeing the state's jurisdiction. The individual may knowingly agree to be searched or waive objections to an illegal search. And it has also been held that prohibited articles may be taken without warrant if they are open to eye and hand and the peace officer comes upon them inadvertently. ROAN vs. GONZALES, et al. [G.R. No. 71410. November 25, 1986.]”

But arms seized after a shoot-out from a compound cannot be used in evidence against the accused where soldiers raided a compound in search of loose firearms, ammunition and explosives [RIZAL ALIH, et al. vs. CASTRO, et al., G.R. No. L-69401. June 23, 1987]. The search cannot be justified based on the receipt of “superior orders” which cannot countermand the Constitution. The Court adverted to U.S. Supreme Court in Ex parte Milligan:

"The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.

xxx

“It is no exaggeration that the basest criminal, ranged against the rest of the people who would condemn him outright, is still, under the Bill of Rights, a majority of one.”

The respondents had every opportunity to get a search warrant from the courts but failed to do so. This failure makes the arms seized inadmissible as evidence in any proceeding against the accused. The Court made a statement how a man’s home is his castle:

"It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of England may not enter. All the forces of the Crown dare not cross the threshold of the ruined tenement."

However, the Court did allow the arms to be kept in custody pending a determination of their legality.

One may ask why the accused should go free despite an illegal search if illegal arms and drugs are found nonetheless. In the same aforecited case, the Court relayed Judge Learned Hand’s observation: "Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will the wrong be repressed."

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[1] Under present Rules, an arrest without a warrant may only be made in the following instances:

“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. xxx”[ Rule 113]

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Obstruction of Justice

by Obiter07

What are you guilty of if you trip a Justice of the Court? Obstruction of Justice. Corny, yes. But it is no laughing matter where you see it in the headlines to justify the “arrest” of househelp, drivers and even relatives of the deceased in a suspected killing or suicide without warrants or apparently, formal charges.

The charge is based on a 1981 Presidential Decree “PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL OFFENDERS” (P.D. No. 1829). The Decree imposes the penalty of imprisonment or a fine of up to P6,000 (Section 1) or both upon “upon any person who knowingly or willfully obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases by committing any of the following acts:

(a) preventing witnesses from testifying in any criminal proceeding or from reporting the commission of any offense or the identity of any offender/s by means of bribery, misrepresentation, deceit, intimidation, force or threats;

(b) altering, destroying, suppressing or concealing any paper, record, document, or object, with intent to impair its verity, authenticity, legibility, availability, or admissibility as evidence in any investigation of or official proceedings in, criminal cases, or to be used in the investigation of, or official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has reasonable ground to believe or suspect, has committed any offense under existing penal laws in order to prevent his arrest, prosecution and conviction;

(d) publicly using a fictitious name for the purpose of concealing a crime, evading prosecution or the execution of a judgment, or concealing his true name and other personal circumstances for the same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing the service of process or court orders or disturbing proceedings in the fiscal's offices, in Tanodbayan, or in the courts;

(f) making, presenting or using any record, document, paper or object with knowledge of its falsity and with intent to affect the course or outcome of the investigation of, or official proceedings in, criminal cases;

(g) soliciting, accepting, or agreeing to accept any benefit in consideration of abstaining from, discontinuing, or impeding the prosecution of a criminal offender;

(h) threatening directly or indirectly another with the infliction of any wrong upon his person, honor or property or that of any immediate member or members of his family in order to prevent such person from appearing in the investigation of, or official proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in order to prevent a person from appearing in the investigation of or in official proceedings in, criminal cases;

(i) giving of false or fabricated information to mislead or prevent the law enforcement agencies from apprehending the offender or from protecting the life or property of the victim; or fabricating information from the data gathered in confidence by investigating authorities for purposes of background information and not for publication and publishing or disseminating the same to mislead the investigator or the court.

If any of the acts mentioned herein is penalized by any other law with a higher penalty, the higher penalty shall be imposed.”

Based on newspaper accounts, those arrested are being charged for obstruction for “cleaning” the scene of the crime, the vehicle used to bring the victim to the hospital and the alleged weapon, a pistol. Letters (a) and (b) above seem to be the most applicable to the case.

We will not comment on whether the charges will prosper as that will be something that will ultimately be up to the prosecutor and later the courts to decide. But the manner by which people were picked up can be open to question.

If the “suspects” were arrested, this does not appear to be one of the instances where warrantless arrests are allowed. Under Rule 113 of the Rules on Criminal Procedure, a warrantless arrest is justified only in the following instances:

“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. xxx”

Only the first and second instances could be argued to apply in this case. However, if the acts have been completed there can no longer be any arrest. There was no crime committed in the presence of the police. For the second instance, this typically envisions a “hot pursuit” after an offense has “just been committed” and there is personal knowledge on the part of the arresting officer that the person arrested has committed the same.[1]

How long a time passed between the alleged commission of the offense and the arrests seen on T.V.? Why could not the police wait to file formal charges and wait for a warrant of arrest? Could not the witnesses have been invited or questioned and not treated as accused?

We appear to have enforcers of the law who are prone to shortcuts, either out of ignorance of the law or by ignoring its requirements when it suits them. Being deprived of liberty and brought to detention is a serious matter and contravenes rights guaranteed by the Constitution. “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws (Article III, Section 1). These rights seem empty and unenforceable now.

During this spectacle, who obstructs justice, the police who are sworn to uphold it, or the suspects who are entitled to the presumption of innocence?[2]

The Supreme Court has already issued this warning once:

“We cannot close this ponencia without a word of caution: those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes once said, "I think it is less evil that some criminals should escape than that the government should play an ignoble part." It is simply not allowed in free society to violate a law to enforce another, especially if the law violated is the Constitution itself. PEOPLE vs. LAGUIO, JR., et al.[G.R. No. 128587. March 16, 2007.]

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[1] This interdiction against warrantless searches and seizures, however, is not absolute and such warrantless searches and seizures have long been deemed permissible by jurisprudence in instances of (1) search of moving vehicles, (2) seizure in plain view, (3) customs searches, (4) waiver or consented searches, (5) stop and frisk situations (Terry search), and search incidental to a lawful arrest. The last includes a valid warrantless arrest, for, while as a rule, an arrest is considered legitimate [if] effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrest, to wit: (1) arrest in flagrante delicto, (2) arrest effected in hot pursuit, and (3) arrest of escaped prisoners. 48 (Emphasis supplied.) PEOPLE vs. CABUGATAN, [G.R. No. 172019. February 12, 2007.]

[2] SECTION 14. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.(ARTICLE III, Constitution)

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