Rules of Court – Page 96 – marichulambino.com

Vasily Vereshchagin. Two Hawks (Bashibazouks). 1878-1879. Oil on canvas. The Museum of Russian Art, Kiev, Ukraine. Right-clicked from www.abcgallery.com

Comment from val:

Razon said in an interview that they were following the sop when they arrested the journalists who were with trillanes in the manila pen at the makati stand off. Is this sop on the books, our laws, codes? Was the action by the police lawful?Nov 30, 9:57 AM —

My comment:

Hi! Thank you for writing. The CIDG who forcibly took the media people into custody said that they were going to be processed, not arrested. But the circumstances of forcing the media people to raise their hands, frisking them, putting tight nylon cuffs and hauling them off to Bicutan, are all acts that evidence an arrest. Under the Rules of Court provision on arrests, which implement the constitutional right against unreasonable searches and seizures:Warrantless arrests can be validly made when a crime has just been committed in the presence of the arresting officer and the officer has personal knowledge that the person to be arrested committed the crime. Here, certain crimes were probably committed and the reporters were in the vicinity. There was also reportedly an intelligence report that the Magdalo soldiers had disguised themselves into mediamen and were going to escape.

Does an intelligence report qualify as personal knowledge? In the leading case of Posadas, Torres-Yu and Lambino vs. Ombudsman and NBI agent Orlando Dizon, the Supreme Court speaking through then Justice Vicente V. Mendoza, held that: No, mere intelligence reports do not qualify as personal knowledge as to meet the requirement that the Rules of Court had set; and the warrantless arrests cannot be validly made on the basis thereof.

Therefore, the warrantless arrests made here of the media persons were not valid, were in fact illegal; illegal arrests being also defined in the cited case.

So, how does one enforce valid warrantless arrests when there is much confusion and the suspects might have mixed with ordinary persons and the reporters and photographers; and that there is a need to ferret them out. Lay down the basis of your probable cause: such as the following: 1) existence of a crime: check: 2) there are suspects in the vicinity: check. 3) approximate height, build, the gender, and physical appearance of the suspects that you are looking for. On the basis of all that, pick out from among the persons in the vicinity those against whom you might have probable cause (see my checklist) and bring them in for questioning (invite for questioning or arrest): but you have to charge them within 12/18/36 hours depending on the crime, or else you have to release them. Those against whom you do not have probable cause: verify their I.D.’s, right there and take down their names and addresses, for future summoning as witnesses.

The problem here is, i’m not even sure CIDG Chief Asher Dolina and his deputy (the bespectacled intel officer running alongside him with a checklist and a ballpen, he was ticking off his list and looking at the hapless arrested media persons for a semblance of being systematic) knew what they were looking for, so they just handcuffed everyone. Not legal.

Arresting officers who rough up, handcuff, and haul off anyone at the crime scene without probable cause, are liable for a host of crimes, which I will write about in the next post.

Thanks!

XXXXX

End notes:

Revised Penal Code. Art. 146. Illegal assemblies. — The penalty of prision correccional in its maximum period to prision mayor in its medium period shall be imposed upon the organizers or leaders of any meeting attended by armed persons for the purpose of committing any of the crimes punishable under this Code, or of any meeting in which the audience is incited to the commission of the crime of treason, rebellion or insurrection, sedition or assault upon a person in authority or his agents. Persons merely present at such meeting shall suffer the penalty of arresto mayor, unless they are armed, in which case the penalty shall be prision correccional.chan robles virtual law library If any person present at the meeting carries an unlicensed firearm, it shall be presumed that the purpose of said meeting, insofar as he is concerned, is to commit acts punishable under this Code, and he shall be considered a leader or organizer of the meeting within the purview of the preceding paragraph. As used in this article, the word “meeting” shall be understood to include a gathering or group, whether in a fixed place or moving. (Reinstated by E.O. No. 187).

Hans Holbein. The Triumph of Riches (copy by Lucas Vorsterman the Elder after Hans Holbein the Younger). Pen and brown ink with brown, grey and green washes, black and red chalks and blue and white bodycolor. Ashmolean Museum, Oxford, UK. Right-clicked from http://www.abcgallery.com

(Update as of 2:26 pm: According to inquirer.net, Uno through Atty. Tamano filed a 38-page supplemental complaint to the impeachment complaint against the President while Atty. Roque filed an 11-page supplemental complaint to the impeachment complaint against Abalos, impleading the President; the complaint against Abalos was reportedly never archived but remained pending.)

* * *

The “opposition” through representatives said they would either (1) file asupplemental pleading or (2) file a supplement; or (3) file an amended one; or, a fourth option, implead the President in the archived impeachment complaint against Benjamin Abalos.

The Rules of Court govern in a suppletory manner. That means when the rules of procedure of the House do not provide for a specific situation, the Rules of Court can be used to fill the gap.

A supplemental pleading and filing “supplements” are different from each other.

On supplemental pleading: A party may, upon motion, be allowed to file a supplemental pleading to an initiatory pleading (here, the original impeachment complaint) for occurrences that took place after the initiatory pleading was filed.

According to former Justice Regalado, the difference between an amended pleading and a supplemental pleading are as follows:

Quote “ (a)Amended pleadings refer to facts existing at the time of the commencement of the action; supplemental pleadings refer to facts arising after the filing of the original pleading.

Quote “ (b) An amended pleading results in the withdrawal of the original pleading; a supplemental pleading is merely in addition to but does not result in the withdrawal of the original pleading.

Quote “(c) An amended pleading can be made as of right, as when no responsive pleading has been filed; supplemental pleadings are always with leave of court.” Closed-quote. (Regalado, Remedial Law Compendium).

A “supplement” consisting of affidavits on the other hand is different; it’s like, the party simply wants to submit additional annexes; it does not touch the initiatory pleading itself, and, in my practice, can be filed ex parte without leave of court and without even a hearing on it; it’s “non-adversarial” for lack of a better term on my part, ex parte means the party is allowed to file it even without notice and participation of the other party. So, all that would be required is something like a motion to admit Annex “A-1” to “A-27” and Annexes “Z” , “T” “E”, for example.

For a supplemental pleading (the first i discussed), here’s the provision:

“Rules of Court. Rule 10. Sec. 6. Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading.”

Salvador Dalí. The Invisible Man. 1929-33. Oil on canvas. 140 x 81 cm. Museo Nacional Centro de Arte Reina Sofia, Madrid, Spain. Right-clicked from http://www.abcgallery.com

For a “supplement” or “supplements”, that would just be a Motion to Admit Annexes etc. , that’s a motion, and not a pleading so the party filing it does not have to jump the hoops on initiatory pleadings, and amended and supplemental, etc.; the general rules on motions apply; it shouldn’t be much bother because in fact it can be filed ex parte.

For impleading the President in the archived impeachment complaint against Ben Abalos, I blogged about it last October 1, 2007, minutes after Abalos resigned. Here’s the link. following the evidence At that time, nobody thought of impleading the President (as i blogged about) before the impeachment complaint was archived.

There’s also another one. Practically unwritten or implied. You can actually introduce and present evidence on matters newly discovered and not raised in the initiatory pleading. That’s what we did when the House impeached Estrada, and during the trial in the Senate; it’s allowed by the rules of procedure, except in the end, the eleven Senator-judges voted not to allow us anymore to present evidence even if the rules allow it. The rules allow it as follows:

“Rules of Court. Rule 10. Sec. 5. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made.”

But that day in 2001, it wasn’t the Rules of Court that changed the world.