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When a Protest Letter on the Night Court Becomes a Violation of New Code of Judicial Conduct?

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This paper is about the night court protest.

Text of When a Protest Letter on the Night Court Becomes a Violation of New Code of Judicial Conduct?

WHEN A PROTEST LETTER ON THE NIGHT COURT BECOMES A VIOLATION OF NEW CODE OF JUDICIAL CONDUCT?

BY JUDGE ELIZA B. YU, LLM, DCL

Court Administrator D initiated an administrative complaint against Judge A for writing a protest letter about the night court operation in X City questioning its legality, rationality and productivity. Judges, like any other citizen in this country, have the constitutionally - enshrined freedom of speech and expression. However, there is a difference between freedom of expression and compromising the dignity of the Court through written or published emotional outbursts and destructive criticisms. From the standpoint of conduct and demeanor expected of a judge, resort to extreme and intemperate language only detracts from the respect due a member of the judiciary and becomes self-destructive. In the letter to Secretary of Tourism, Judge A disparaged the establishment of night courts in a manner which is critical, defiant and scathing, fully aware that the order which she is defying is an administrative order issued by no less than the Chief Justice himself. To quote the subject letter of Judge A:

XXXXXXXXX

This Court learned that you requested for the designation of night courts in X City that resulted to the issuance of Administrative Order No. 0 - 123 (Establishing Night Courts in the Metropolitan Trial Courts of X City and Y City).

With due respect, there is insufficient basis for your request. There was no statistical data presented or there was no study conducted by your department recommending the necessity of establishing night courts in X City. For the record, this Court is yet to hear a case involving any tourist. Moreover, the tourists should be advised not to roam around the city at night so as not to be victims of various crimes. Usually, the perception of the tourists who are going around the city at night is negative, for they are likely to be engaging in unlawful nocturnal activities. They are at their own risk at night.

There was no prior consultation with the police officers, public attorneys, public prosecutors, judges and their staff before your department requested for the creation of night courts in X City.

There are many concerns which your department did not consider.

First, some of the rights of the accused who were charged with cases covered by the Summary Procedure are impaired by the operation of night courts. The 1991 Revised Rule on Summary Procedure provides the procedure to be followed in commencing a criminal action. Under Section 12 thereof, it states: " xxx (b) If commenced by information . - When the case is commenced by 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 to the complainant or prosecutor not later than ten (10) days from receipt of said order. The prosecution, may reply affidavits within ten (10) days after receipt of the counter-affidavits of the defense. In view of this, the accused cannot be immediately arraigned on the same day,' of his arrest at night. Neither can this Court order the arrest of the accused for the purpose of his arraignment at night. Section 16 of the same Rule declares:" The Court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall be either on bail or on recognizance by responsible citizen acceptable to the court." Neither can the police officers apprehend and detain the accused charged with cases covered by the Rule on Summary Procedure for the sole purpose of attending the hearing at night by the court without being liable for Arbitrary Detention under Article 124 of the Revised Penal Code. Said article provides the penalty of arresto mayor in its maximum period ( 4 months and 1 day to 6 months) to prision correctional in its minimum period (6 months and 1 day to 2 years and 4 months) of imprisonment, if the detention shall not exceed in three (3) days, committed by a police officer or employee who detains a person without any legal ground. There is no legal basis to detain the accused by the police officer at night before the night court opens to hear the cases because the accused is not required to post bail at all.

The night inquest without the corresponding release of the accused charged with cases covered by the Rule on Summary Procedure is questionable exposing the public prosecutor to criminal and administrative liabilities. 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 (Section 1, DOJ Circular No. 61 , September 21, 1993). 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. Under the 1985 Rules on Criminal Procedure Court effective January 1, 1985 as amended in 1988 and October 1, 1994, Rule 113, Section 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 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 Rule 112, Section 7." 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 must sign a waiver of the provisions of Article 125 of the Revised Penal Code as amended (Section 7, Rule 112, 1985 Rules on Criminal Procedure Court effective January 1, 1985 as amended in 1988 and October 1, 1994).

UndertheOldRule,itissilentastotheperson arrested without warrant for an offense cognizable by the Metropolitan Trial Court or first level courts. Thus, it necessarily follows that inquest can be conducted only on cases cognizable by the Regional Trial Court. The Rules on Criminal Procedure was amended in 2000. The provision of Rule 112, section 11 was also amended which read as follows: "When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules, xxx Before the complaint or information is filed, the person arrested may ask for a preliminary , investigation in accordance with this Rule, but he may sign a waiver of the provisions of Article 125 of the Revised Penal Code, xxx After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for preliminary investigation with the same right to adduce evidence in his defense as provided in this rule." What are the cases subject to preliminary investigation under the New Rule? The answer is in Rule 112, Section 1 that states:" a preliminary investigation is required to be conducted before the filing of a complaint 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. "Under the Old Rule, the offense covered is six (6) years or more. Thus, now the inquest can be conducted only where the penalty is four (4) years, two (2) months and one (1) day and above. Thus, the public prosecutors cannot conduct inquest of the night arrests of the suspected criminals because the penalty involved in cases covered by the Rule on Summary Procedure is not more than six (6) months.

Second, night courts in W City and Z City are criticized for being ineffective and non-functional, in W City, when I was a public prosecutor, I questioned as to the legality of the detenti

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