Philippine Criminal Law: Murder



Murder is the unlawful killing of any person which is not parricide or infanticide, provided that any of the following circumstances is present:

1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense, or of means or persons to insure or afford impunity

2. In consideration of a price, reward or promise Note: For reward and promise to be considered, the same must the primary consideration in the commission of a crime
or felony. If this aggravating circumstance is present in the commission of the crime, it affects not only the person who received the money or reward but also the person who gave it.

3. By means of inundation, fire, poison, explosion, shipwreck, stranding on a vessel, derailment or assault upon a railroad, fall of an airship, by motor vehicles, or with the use of any other means involving great waste and ruin

4. On occasion of any of the calamities enumerated in the preceding paragraph, or of an earthquake, eruption of volcano, destructive cyclone, epidemic, or other
public calamity

5. With evident premeditation
Note: The offender must have taken advantage of the same and the resultant condition.

6. With cruelty, by deliberately and inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse.

Note: Cruelty includes the situation where the victim is already dead and yet, acts were committed which would decry or scoff the corpse of the victim. The crime becomes murder.

There is no cruelty if the act is the result of an impulse of passion or extreme obfuscation as such will be inconsistent with the concept of deliberateness in augmenting the suffering of the victim

Philippine Criminal Law: I killed my wife after I saw her having sex with another man!



Article 247 of the Revised Penal Code  affords  protection  to  a  spouse considered  to  have  acted  in  a  justified  outburst  of  passion or  a  state  of  mental  disequilibrium.  The offended  spouse  has  no  time  to  regain  his  self‐control.

However the following circusmstances must be present:


1. A legally married person or a parent surprises his spouse or daughter, the latter under 18 years of age and living with him, in the act of committing sexual intercourse.

2. He or she kills any or both of them or inflicts upon any or both of them any serious physical injury in the act or immediately thereafter.

3. He has not promoted or facilitated the prostitution of his wife or daughter, or that he or she has not consented to the infidelity of the other spouse.

Philippine Criminal Law: What is parricide?


Parracide is a criminal act of killing his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants, or descendants, or his spouse,hall be punished by the penalty of reclusion perpetua to death.


The relationship, except the spouse, must be in the direct line and not in the collateral line. Hence, if  father the killed his son and was assisted by his nephew , then father is guilty of parricide while the nephew committed murder or homicide as case maybe.

Rights of persons under Custodial Investigation in the Philippines

 custodial investigation

(1) The rights of an accused person under in-custody investigation are expressly enumerated in Sec. 12, Art. III of the Constitution, viz: 

(a)Any person under investigation for the commission of an offense shall have the right to be informed of his rights to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel;
(b)No torture, force, violence, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited;
(c)Any confession or admission in violation of this or Sec. 17 (Self-Incrimination Clause) hereof shall be inadmissible in evidence against him;
(d)The law shall provide for penal and civil sanctions for violation of this section as well as compensation to aid rehabilitation of victims of torture or similar practice, and their families.
(2) Under RA 7834, the following are the rights of persons arrested, detained or under custodial investigation:
(a)Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel;
(b)Any public officer or employee, or anyone acting under his order or in his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his right to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer;
(c)The custodial investigation report shall be reduced to writing by investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever;
(d)Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter‘s absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding;
(e)Any waiver by person arrested or detained under the provisions of Art. 125 of the Revised Penal Code or under custodial investigation, shall be in writing signed by such person in the presence of his counsel; otherwise such waiver shall be null and void and of no effect;
(f)Any person arrested or detained or under custodial investigation shall be allowed visits by his or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by his counsel, or by any national NGO duly accredited by the Office of the President. The person‘s ―immediate family‖ shall include his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece and guardian or ward.

(3) Three rights are made available by Sec. 12(1):

(a)The right to remain silent — Under the right against self-incrimination in Sec. 17, only an accused has the absolute right to remain silent. A person who is not an accused may assume the stance of silence only when asked an incriminatory question. Under Sec. 12, however, a person under investigation has the right to refuse to answer any question. His silence, moreover, may not be used against him (People vs. Alegre and Gordoncillo, 94 SCRA 109);
(b)The right to counsel — Example of those who are not impartial counsel are (1) Special counsel, private or public prosecutor, counsel of the police, or a municipal attorney whose interest is adverse to that of the accused; (2) a mayor, unless the accused approaches him as counselor or adviser; (3) a barangay captain; (4) any other whose interest may be adverse to that of the accused (People vs. Tomaquin, GR 133188, July 23, 2004);
(c)The right to be informed o his rights — the right guaranteed here is more than what is shown in television shows where the police routinely reads out the rights from a note card; he must also explain their effects in practical terms (People vs. Rojas, 147 SCRA 169). Short of this, there is a denial of the right, as it cannot then truly be said that the person has been informed of his rights (People vs. Nicandro, 141 SCRA 289).
(4) Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody otherwise deprived of his freedom of action in any significant way. The right to custodial investigation begins only when the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements (Escobedo vs. Illinois, 378 US 478; People vs. Marra, 236 SCRA 565). It should be noted however, however, that although the scope of the constitutional right is limited to the situation in Escobedo and Marra, RA 7438 has extended the guarantee to situations in which an individual has not been formally arrested but has merely been ―invited‖ for questioning (People vs. Dumantay, GR 130612, May 11, 1999; People vs. Principe, GR 135862, May 2, 2002).


Rights of accused at the trial in the Philippines


rightof the accused

Rights of accused at the trial

(1) In all criminal prosecutions, the accused shall be entitled to the following rights:
(a)To be presumed innocent until the contrary is proved beyond reasonable doubt.
(b)To be informed of the nature and cause of the accusation against him.
(c)To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without any justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.
(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him;
(e) To be exempt from being compelled to be a witness against himself.
(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.
(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed by law (Sec. 1).




Information about Bail in the Philippines



Bail (Rule 114) Nature


(1) All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required (Sec. 13, Art. III, The Constitution).
(2) Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance (Sec. 1).
(3) Bail is the security required by the court and given by the accused to ensure that the accused appear before the proper court at the scheduled time and place to answer the charges brought against him. It is awarded to the accused to honor the presumption of innocence until his guilt is proven beyond reasonable doubt, and to enable him to prepare his defense without being subject to punishment prior to conviction (Cortes vs. Catral, 279 SCRA 1. Its main purpose is to relieve an accused from the rigors of imprisonment until his conviction and secure his appearance at the trial (Paderanga vs. CA, 247 SCRA 741).
(4) The person seeking provisional release need not wait for a formal complaint or information to be filed against him as it is available to all persons where the offense is bailable, so long as the applicant is in the custody of the law (Paderanga vs. CA, 247 SCRA 741).

(5) Kinds of bail:

(a)Corporate bond — one issued by a corporation licensed to provide bail subscribed jointly by the accused and an officer duly authorized by its board of directors (Sec. 10).
(b)Property bond — an undertaking constituted as a lien on the real property given as security for the amount of the bond (Sec. 11).
(c)Recognizance — an obligation of record entered into usually by the responsible members of the community before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual act being to assure the appearance of the accused for trial (People vs. Abner, 87 Phil. 566).
(d)Cash deposit — the money deposited by the accused or any person acting on his behalf, with the nearest collector of internal revenue, or provincial, city or municipal treasurer. Considered as bail, it may be applied to the payment of any fees and costs, and the excess, if any, shall be returned to the accused or to whoever made the deposit (Sec. 14).

When a matter of right; exceptions

(1) 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. 4, Rule 114).
(2) If bail can be granted in deportation cases, we see no justification why it should not also be allowed in extradition cases. After all, both are administrative proccedings where the innocence or guilt of the person detained is not in issue (Govt. of Hongkong vs. Olalia, GR 153675, April 19, 2007).
(3) Bail is a matter of right before final conviction, but the rule is not absolute. The exception is when a person is charged with a capital offense when the evidence of guilt is strong, or when the offense for which on is charged is punishable by reclusion perpetua. The exception to this rule, however, is even if a person is charged with a capital offense where the evidence of guilt is strong, if the accused has failing health, hence, for humanitarian reasons, he may be admitted to bail, but that is discretionary on the part of the court (De La Ramos vs. People‘s Court, 77 Phil. 461; Catiis vs. CA, 487 SCRA 71).

When a matter of discretion

(1) Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.
Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.
If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;
(c) That he committed the offense while under probation, parole, or under conditional pardon;
(d) That the circumstances of his case indicate the probability of flight if released on bail; or
(e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the
Regional Trial Court after notice to the adverse party in either case (Sec. 5, Rule 114).
(2)Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, whether on preliminary investigation, trial, or on appeal (Sec. 17[a]).
(3)The discretion lies in the determination of whether the evidence of guilt is strong. If it is determined that it is not strong, then bail is a matter of right. There is no more discretion of the court in denying the bail, the moment there is a determination that the evidence of guilt is not strong.
Hearing of application for bail in capital offenses
(1) A bail application in capital offense does not only involve the right of the accused to temporary liberty, but likewise the right of the State to protect the people and the peace of the community from dangerous elements. Accordingly, the prosecution must be given ample opportunity to show that the evidence of guilt is strong, because, by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is exercised in determining whether the evidence of guilt is strong is a matter of judicial discretion. Though not absolute nor beyond control, the discretion within reasonable bounds (People vs. Antona, GR 137681, Jan. 31, 2002).
(2) A hearing in an application for bail is absolutely indispensable before a judge can properly determine whether the prosecution‘s evidence is weak or strong. In receiving evidence on bail, while a court is not required to try the merits of the case, he must nevertheless conduct a summary hearing which is ―such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is to determine the weight of the evidence for purposes of the bail (In re complaint against Judge Elma, AM RTJ-94-1183, Feb. 8, 1994).
(3) A judge should not hear a petition for bail in capital offenses on the same day that the petition was filed. He should give the prosecution a reasonable time within which to oppose the same. Neither is he supposed to grant bail solely on the belief that the accused will not flee during the pendency of the case by reason of the fact that he had even voluntarily surrendered to the authorities. Voluntary surrender is merely a mitigating circumstance in decreasing the penalty that may eventually be imposed upon the accused in case of conviction but is not a ground for granting bail to an accused charged with a capital offense (Sule vs. Judge Bitgeng, 60 SCAD 341,April 18, 1995).


Guidelines in fixing amount of bail

(1) The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required (Sec. 9).

Bail when not required

(1)No bail shall be required when the law or these Rules so provide.
When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.
A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court (Sec. 16).
Increase or Reduction of Bail
(1)After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody (Sec. 20).
Forfeiture and Cancellation of bail
(1) When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must:
(a) produce the body of their principal or give the reason for his non-production; and
(b) explain why the accused did not appear before the court when first required to do so.
Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted (Sec. 21).
(2) Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail (Sec. 22).


Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation

(1) The posting of the bail does not constitute a waiver of any question on the irregularity attending the arrest of person. He can still question the same before arraignment, otherwise, the right to question it is deeme3d waived. It was also said that posting bail is deemed to be a forfeiture of a habeas corpus petition which becomes moot and academic (Arriba vs. People. `07 SCRA 191; Bagcal vs. Villaroza, 120 SCRA 525).
(2)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 therefor, 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 (Sec. 26).
(3)The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender (Mendoza vs. CFI of Quezon, 51 SCAD 369). an accused need not wait for his arraignment before filing a petition for bail. In Lavides vs. CA, 324 SCRA 321, it was held that in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. This pronouncement should be understood in the light of the fact that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. It was explained that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between: (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held; and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his constitutional right not to be put on trial except upon a valid complaint or information sufficient to charge him with a crime and his right to bail. It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment (Serapio vs. Sandiganbayan, GR Nos. 148468-69, 149116, Jan. 28, 2003).



Warrant of Arrest in the Philippines



Requisites of a valid warrant of arrest

(1) Requisites for arrest warrant issued by a RTC judge under Sec. 5, Rule 112: 
(a) Within 10 days from the filing of the complaint or information 
(b) The judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. 
(c) If he finds probable cause, he shall issue a warrant of arrest 
(d) In case of doubt on the existence of probable cause 
1)The judge may order the prosecutor to present additional evidence within 5 days from notice; and 
2)The issue must be resolved by the court within 30 days from the filing of the complaint of information. 
(2) Requisites for issuing search warrant under Sec. 4, Rule 126: 
(a)It must be issued upon probable cause in connection with one specific offense; 
(b)The probable cause must be determined by the judge himself and not by the applicant or any other person; 
(c)In the determination of probable cause, the judge must examine under oath or affirmation, the complainant and the witness he may produce; and 
(d)The warrant issued must particularly describe the place to be searched and the things to be seized which may be anywhere in the Philippines.





When warrant of arrest may issue

(1)(a) By the Regional Trial Court. – Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 6 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information.
(b) By the Municipal Trial Court. – When required pursuant to the second paragraph of section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court shall be conducted by the prosecutor. The procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section.
(c) When warrant of arrest not necessary. – A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the Municipal Trial Court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 6 of this Rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction (Sec. 5, as amended by AM 05-8-26-SC).

Cases not requiring a preliminary investigation

(1) No preliminary investigation is required in the following cases:
(a) If filed with the prosecutor. – If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within (10) days from its filing.
(b) If filed with the Municipal Trial Court. – If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court, for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of the said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest (Sec. 8).

Remedies of accused if there was no preliminary investigation

(1) One remedy if there was no preliminary investigation is to hold in abeyance the proceedings and order the prosecutor to hold preliminary investigation (Pilapil vs. Sandiganbayan, April 7, 1993).
(2) Section 7, last paragraph thereof, provides that if the case has been conducted, the accused may within five (5) days from the time he learns of its filing ask for a preliminary investigation. The five-day period to file the motion for preliminary investigation is mandatory, and an accused is entitled to ask for preliminary investigation by filing the motion within the said period. The failure to file the motion within the five-day period amounts to a waiver of the right to ask for preliminary investigation. Apart from such waiver, posting bail without previously or simultaneously demanding for a preliminary investigation justifies denial of the motion for investigation (People vs. CA, 242 SCRA 645).
Arrest (Rule 113)
(1) Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec 1).
Arrest, how made
(1)An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall he used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention (Sec. 2).
Arrest without warrant, when lawful
(1) 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 (Sec. 5).
Method of arrest
(1) Method of arrest by officer by virtue of warrant. – When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable (Sec. 7).
(2) Method of arrest by officer without warrant. – When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest (Sec. 8).
(3) Method of arrest by private person. – When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest (Sec. 9).

Determination of Probable Cause for issuance of warrant of arrest

(1) It is the judge alone who determines the probable cause for the issuance of warrant of arrest. It is not for the provincial fiscal or prosecutor to ascertain (People vs. Inting, 187 SCRA 788).
Distinguish probable cause of fiscal from that of a judge
(1) The determination by the prosecutor of probable cause is for the purpose of either filing an information in court or dismissing the charges against the respondent, which is an executive function. The determination by the judge of probable cause begins only after the prosecutor has filed the information in court and the latter‘s determination of probable cause is for the purpose of issuing an arrest warrant against the accused, which is judicial function (People vs. CA, 301 SCRA 475).
(2)Probable cause to hold a person for trial refers to the finding of the investigating prosecutor after the conduct of a preliminary investigation, that there is sufficient ground to hold a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial. Based on such finding, the investigating prosecutor files the corresponding complaint or information in the competent court against the accused. The determination of probable cause to issue a warrant of arrest is a judicial function. A judge cannot be compelled to issue a warrant of arrest if he or she believes honestly that there is no probable cause for doing so (People vs. CA, 102 SCAD 375, Jan. 21, 1999).



Anti-Violence Against Women and Their Children Act (RA 9262)

Anti-Violence Against Women and Their Children Act (RA 9262)


What is Republic Act No. 9262?

RA 9262 is the Anti-Violence Against Women and Their Children Act of 2004. It seeks to address the prevalence of violence against women and children (VAWC), abuses on women and their children by their partners like:


Husband or ex-husband
Live-in partner or ex-live in partner
Boyfriend/girlfriend or ex-boyfriend/ex-girlfriend
Dating partner or ex-dating partner
The Act classifies violence against women and children (VAWC) as a public crime.


What is VAWC under the law?

It refers to “any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.

It includes, but is not limited to, the following acts:

Physical violence refers to acts that include bodily or physical harm;

Sexual violence refers to an act which is sexual in nature, committed against a woman or her child. It includes but is not limited to:

Rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim’s body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;
Acts, causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion;
Prostituting the woman or her child.
Psychological violence refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

Economic abuse refers to acts that make or attempt to make a woman financially dependent. This includes but is not limited to the following:

Withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;
Deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common;
Destroying household property;
Controlling the victim’s own money or properties or solely controlling the conjugal money or properties.
Children are those below 18 years of age or those, regardless of age, who are incapable of taking care of themselves (as stated in Republic Act 7610). It includes the biological children of the victim and other children under her care. A dating relationship is one which has a romantic involvement. It means that a relationship existed between a woman and a partner who is abusive or has previously a bused her, whether or not the relationship was formal.

Sexual relations refer to a single sexual act which mayor may not result to a bearing of a child.


Who gets protected under the law?

The law recognizes the unequal relations of a man and a woman in an abusive relationship where it is usually the woman who is disadvantaged. Thus, the law protects the woman and her children.

The victim, the child who is a minor (legitimate and illegitimate), and a person aged 18 years and beyond who doesn’t have the ability to decide for herself/himself because of an emotional, physical and mental illness can make full use of the law.
Any child under the care of a woman is also protected under the law.

Is VAWC committed by men alone?

Women can also be liable under the law. These are the lesbian partners/girlfriends or former partners of the victim with whom she has or had a sexual or dating relationship. (Source: Barangay Protection Order RA 9262: A Primer. Department of Interior and Local Government, National Barangay Operations Office, 2004.)


What if the female victim commits violence against her partner?

The law acknowledges that women who have retaliated against their partners or who commit violence as a form of self-defense may have suffered from battered women syndrome (BWS).

BWS is a “scientifically defined pattern of psychological and behavioral symptoms found in women living in battering relationships as a result of cumulative abuse.” (Source: Salient Features: A Guide to Anti-Violence Against Women and their Children [RA 9262]. Philippine Information Agency and National Commission on the Role of Filipino Women, 2004. )

Any victim who suffers from BWS should be diagnosed by a psychiatric expert or a clinical psychologist. This will also help the victim in obtaining a just decision in her case.


What if the male spouse/partner complains about abuses committed by his wife/partner?

He may file a complaint or case under the Revised Penal Code.


What are the penalties for committing VAWC?

If the courts have proven that the offender is guilty of the crime, he may be imprisoned and will be obliged to pay P100,000 to P300, 000 in damages. The length of imprisonment depends on the gravity of the crime.


What can women and children do under the law?

The law allows women and their children to secure barangay protection order and/or temporary or permanent protection order from the courts.


They can also file an independent civil action for damages and criminal action for the violation of anti-VAWC Act.

What is a protection order?

It is an order prescribed in the Anti-VAWC Act to prevent further abuse of or violence against a woman and her child. It also provides them relief from said abuse or violence.


Who may file the protection order?

Anyone of the following may also file the protection order in behalf of the victim/s:

Parent or guardian
Children and grandchildren
Relatives (aunts, uncles, cousins, in-laws)
Local officials and DSWD social workers
Health care providers (nurses, doctors, barangay health workers)
Any two people who came from the city or municipality where VAWC happened and who have personal knowledge of the crime.