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Atty. Robert Divinagracia

Updates in Philippine Jurisprudence

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What is a waiver of the

provisions of Art. 125 of the
Revised Penal Code?

A waiver of the provisions of Art. 125 of the Revised Penal Code

signed by the arrested person so he can avail of a preliminary in-
vestigation allows the authorities to detain a person arrested
without a warrant beyond the periods specified under Article 125
within which they are required to deliver a person arrested with-
out warrant to the proper judicial authorities. But how long
should the preliminary investigation be conducted for the waiver
to be effective? Does the execution of the waiver by the accused a
license for authorities to indefinitely incarcerate an accused?

T
he Integrated Bar of the Philippines, in representation of
Jay-Ar Senin, a detainee who executed a waiver of deten-
tion under Article 125 of the Revised Penal Code, after be-
ing arrested for violation of Republic Act 9165, whose case was
dismissed by the public prosecutor, but his release was held in
abeyance in view of the DOJ circular which mandates that all dis-
missal of drugs cases by the public prosecutors shall be subject to
automatic review by the DOJ Secretary, filed petition for habeas
corpus to assail the constitutionality of the different DOJ circulars
which mandated the continued detention of persons who execut-
ed waivers of detention under Art. 125 of the Revised Penal Code
while their case undergo the automatic review of the DOJ Secre-
tary. Specifically, they assail DOJ Circular No. 12 Series of 2012,
which call for automatic review for not more than 30 days all dis-
missal of cases under RA 9165 punished by reclusion perpetual
or life imprisonment; D.C. No. 22, series of 2013, entitled Guide-
lines on the Release of Respondents/Accused Pending Automatic
Review of Dismissed Cases Involving Republic Act (R.A.) No. 9165;
and D.C. No. 50, series of 2012, entitled Additional Guidelines on
the Application of Article 125 of the Revised Penal Code, as
Amended (RPC).

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For the IBP, it is the height of injustice that a detainee should be

placed in detention without any charges being filed against them
while they await the decision on the automatic review of their
cases by the DOJ Secretary.

While the petition was pending, the dismissal of Senin-s case was
reversed, and an information filed against him; the IBP however
prayed that the petition not be dismissed for mootness, as the
same is capable of repetition in view of the different enactments
made by the DOJ.

Who Is the Real Jesus?

What does historical evidence reveal about Jesus’ true
identity?

On December 18, 2015, D.C. No. 50 was issued by then Secretary

of Justice (SOJ), now Associate Justice Alfredo Benjamin S.
Caguioa of this Court. In brief, D.C. No. 50 stated that a person
with a pending case for automatic review before the DOJ shall be
released immediately if the review is not resolved within a peri-
od of 30 days

The Issue:

Whether or not the petition is mooted.

Whether or not a waiver of Article 125 of the Revised Penal Code

constitute a license for the indefinite detention of accused while
their case is being heard by the Department of Justice.

The Ruling:

History of the DOJ Issuances

D.C. No. 46, dated June 26, 2003

The process of automatic review of dismissed drug cases was first

instituted in 2003.

Due to numerous complaints about illegal drug cases being

whitewashed or dismissed due to sloppy police work, former SOJ
Simeon Datumanong issued D.C. No. 46, empowering the DOJ to
automatically review dismissed cases filed in violation of R.A. No.
9165 and involving the maximum penalty of life imprisonment
or death.

Who Is the Real Jesus?

What does historical evidence reveal about Jesus’ true
identity?

The circular also applied to cases which had been dismissed prior
to its issuance if such dismissal had not yet attained finality as of
the date of the circular.

D.C. No. 12, dated February 13, 2012

D.C. No. 46 was followed by D.C. No. 12 in which former SOJ Leila
M. De Lima, for the most part, reiterated the provisions of the
first circular but added that automatic review of dismissed drug
cases shall be without prejudice to the right of the respondent to
be immediately released from detention pending automatic re-
view, unless respondent is detained for other causes.

D.C. No. 22, dated February 12, 2013

A year after, SOJ De Lima revised the guidelines directing the

continued detention of some respondents accused of violating
R.A. No. 9165. She reasoned that cases, where the maximum im-
posable penalty reclusion perpetua or life imprisonment, are pre-
sumably high-priority drug cases whose alleged perpetrators
should remain in custody.

In this circular, the only respondents who may be released, pend-

ing automatic review of their cases by the SOJ, are those whose
cases were dismissed during inquest proceedings on the ground
that the arrest was not a valid warrantless arrest under Section 5,
Rule 113 of the Rules of Criminal Procedure, or that no probable
cause exists to charge respondents in court.

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The respondents shall remain in custody, pending automatic re-

view of the dismissal of their cases, in the following instances as
provided for under the circular:

1. When during inquest proceedings, respondent elects to avail of a

regular preliminary investigation and waives in writing the pro-
visions of Article 125 of the RPC;

2. When an information is filed in court after inquest proceedings

and the accused is placed in the custody of the law, but the court
allows the accused to avail of a regular preliminary investigation,
which results in the dismissal of the case, the handling prosecu-
tor shall insist that the accused shall remain in the custody of the
law pending automatic review by the SOJ, unless the court pro-
vides otherwise, or until the dismissal is affirmed by the SOJ and
the corresponding motion to dismiss or withdraw information is
granted by the court;

3. When an information is filed in court after preliminary investiga-

tion proceedings and the accused is placed in the custody of the
law, but the court allows the accused to avail of reinvestigation,
which results in the dismissal of the case, the accused shall re-
main in custody of the law pending automatic review by the SOJ,
unless the court provides otherwise, or until the dismissal is af-
firmed by the SOJ and the corresponding motion to dismiss or
withdraw information is granted by the court; and

4. When the case against respondent is dismissed after due reinves-

tigation, if the case was commenced as an inquest case but was
converted to a regular preliminary investigation after respon-
dent elected the same and waived the provisions of Article 125 of
the RPC.

D.C. No. 50, dated December 18, 2015

In order to address the problem of delay in the disposition of cas-

es subject to automatic review and the prolonged detention of
drug suspects without any case filed against them, then SOJ
Caguioa issued D.C. No. 50, directing all heads of prosecution of-
fices to immediately issue corresponding release orders in favor
of respondents whose cases are still pending automatic review
before the SOJ beyond the 30-day period prescribed in the subject
circular, unless respondents are detained for some other causes.

D.C No. 003, dated January 13, 2016

In view of the considerable number of petitions for habeas cor-

pus filed against the DOJ by accused languishing in jail for years
while their cases were pending automatic review by the DOJ,
then SOJ Caguioa revoked D.C. No. 50 dated December 18, 2015
and D.C. No. 22, dated February 12, 2013.

SOJ Caguioa then reinstated D.C. No. 12, dated February 13, 2012,
mandating immediate release of respondents pending automatic
review, unless respondents are detained for other causes.

D.C. No. 004, dated January 4, 2017

SOJ Vitaliano Aguirre, in this latest circular, reiterated the provi-

sions of D.C. No. 3, dated January 13, 2016, in so far as it orders
the respondent/s to be immediately released from detention,
pending automatic review, unless detained for other causes.

Petition is moot and academic

The Court agrees with the OSG that this controversy has become
moot and academic. First, the DOJ already issued D.C. No. 004, se-
ries of 2017, which recognizes the right of a detainee to be re-
leased even if the dismissal of the case on preliminary investiga-
tion is the subject of automatic review by the SOJ. Second, records
show that the order of dismissal was reversed; that upon filing of
the information with the court, there was judicial determination
of probable cause against Senin; and that following such judicial
determination, the court issued a warrant of arrest and a com-
mitment order.

The rule pertaining to pre-trial

detainees whose cases are under

preliminary investigation, or

whose cases have been dismissed

on inquest, preliminary

investigation but pending appeal,

motion for reconsideration,

reinvestigation or automatic

review

Although the latest circular of Secretary Aguirre is laudable as it

adheres to the constitutional provisions on the rights of pre-trial
detainees, the Court will not dismiss the case on the ground of
mootness. As can be gleaned from the ever-changing DOJ circu-
lars, there is a possibility that the latest circular would again be
amended by succeeding secretaries. It has been repeatedly held
that “the Court will decide cases, otherwise moot, if: first, there is
a grave violation of the Constitution; second, the exceptional
character of the situation and the paramount public interest are
involved; third, when the constitutional issue raised requires for-
mulation of controlling principles to guide the bench, the bar,
and the public; and fourth, the case is capable of repetition yet
evading review.All four (4) requisites are present in this case.

As the case is prone to being repeated as a result of constant

changes, the Court, as the guardian and final arbiter of the Con-
stitutionand pursuant to its prerogative to promulgate rules con-
cerning the protection and enforcement of constitutional
rights, takes this opportunity to lay down controlling principles
to guide the bench, the bar and the public on the propriety of the
continued detention of an arrested person whose case has been
dismissed on inquest, preliminary investigation, reinvestigation,
or appeal but pending automatic review by the SOJ.

The rule is that a person subject of a warrantless arrest must be

delivered to the proper judicial authoritieswithin the periods
provided in Article 125 of the RPC, otherwise, the public official
or employee could be held liable for the failure to deliver except
if grounded on reasonable and allowable delays. Article 125 of
the RPC is intended to prevent any abuse resulting from confin-
ing a person without informing him of his offense and without
allowing him to post bail. It punishes public officials or employ-
ees who shall detain any person for some legal ground but fail to
deliver such person to the proper judicial authorities within the
periods prescribed by law. In case the detention is without legal
ground, the person arrested can charge the arresting officer with
arbitrary detention under Article 124 of the RPC. This is without
prejudice to the possible filing of an action for damages under
Article 32 of the New Civil Code of the Philippines.

Article 125 of the RPC, however, can be waived if the detainee

who was validly arrested without a warrant opts for the conduct
of preliminary investigation. The question to be addressed here,
therefore, is whether such waiver gives the State the right to de-
tain a person indefinitely.

The Court answers in the negative.

The waiver of Article 125 of the RPC does not vest upon the DOJ,
PPO, BJMP, and PNP the unbridled right to indefinitely incarcer-
ate an arrested person and subject him to the whims and
caprices of the reviewing prosecutor of the DOJ. The waiver of
Article 125 must coincide with the prescribed period for prelimi-
nary investigation as mandated by Section 7, Rule 112 of the
Rules of Court. Detention beyond this period violates the ac-
cused’s constitutional right to liberty.

Stated differently, the waiver of the effects of Article 125 of the

RPC is not a license to detain a person ad infinitum. Waiver of a
detainee’s right to be delivered to proper judicial authorities as
prescribed by Article 125 of the RPC does not trump his constitu-
tional right in cases where probable cause was initially found
wanting by reason of the dismissal of the complaint filed before
the prosecutor’s office even if such dismissal is on appeal, recon-
sideration, reinvestigation or on automatic review. Every per-
son’s basic right to liberty is not to be construed as waived by
mere operation of Section 7, Rule 112 of the Rules of Court. The
fundamental law provides limits and this must be all the more
followed especially so that detention is proscribed absent proba-
ble cause.

Accordingly, the Court rules that a detainee under such circum-

stances must be promptly released to avoid violation of the con-
stitutional right to liberty, despite a waiver of Article 125, if the
15-day period (or the thirty 30-day period in cases of violation of
R.A. No. 9165) for the conduct of the preliminary investigation
lapses. This rule also applies in cases where the investigating
prosecutor resolves to dismiss the case, even if such dismissal
was appealed to the DOJ or made the subject of a motion for re-
consideration, reinvestigation or automatic review. The reason is
that such dismissal automatically results in a prima facie finding
of lack of probable cause to file an information in court and to
detain a person.

The Court is aware that this decision may raise discomfort to

some, especially at this time when the present administration ag-
gressively wages its “indisputably popular war on illegal drugs.”
As Justice Diosdado Peralta puts it, that the security of the public
and the interest of the State would be jeopardized is not a justifi-
cation to trample upon the constitutional rights of the detainees
against deprivation of liberty without due process of law, to be
presumed innocent until the contrary is proved and to a speedy
disposition of the case.

WHEREFORE, it is hereby declared, and ruled, that all detainees

whose pending cases have gone beyond the mandated periods
for the conduct of preliminary investigation, or whose cases have
already been dismissed on inquest or preliminary investigation,
despite pending appeal, reconsideration, reinvestigation or auto-
matic review by the Secretary of Justice, are entitled to be re-
leased pursuant to their constitutional right to liberty and their
constitutional right against unreasonable seizures, unless de-
tained for some other lawful cause.

SO ORDERED.

MENDOZA, J.:

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta,

Bersamin, Del Castillo, Perlas-Bernabe, Leonen, Jardeleza, Mar-
tires, Tijam, and Reyes, Jr., JJ., concur.

Caguioa, J., no part.

G.R. No. 232413, July 25, 2017, IN THE MATTER OF THE PETI-
TION FOR ISSUANCE OF WRIT OF HABEAS CORPUS WITH PE-
TITION FOR RELIEF

INTEGRATED BAR OF THE PHILIPPINES PANGASINAN LEGAL

AID AND JAY-AR R. SENIN, PETITIONERS, VS. DEPARTMENT
OF JUSTICE, PROVINCIAL PROSECUTOR’S OFFICE, BUREAU OF
JAIL MANAGEMENT AND PENOLOGY, AND PHILIPPINE NA-
TIONAL POLICE, RESPONDENTS.

Citations omitted.

SEE ALSO:

A petition declaring the presumptive death of a person for pur-

poses other than remarriage is not a valid suit.

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SEE ALSO:

The filing of the com- An accused who has The determination of

plaint for preliminary been sentenced by fi- the judge of the prob-
investigation inter- nal judgment to pay a able cause for the
rupts the running of fine only and is found purpose of issuing a
the prescriptive peri- to be insolvent and warrant of arrest
od of criminal cases, could not pay the fine does not mean that
whether under the for this reason, can- the trial court judge
Revised Penal Code or not be compelled to becomes an appellate
special laws. serve the subsidiary court for purposes of
May 9, 2020 imprisonment provid- assailing the determi-
In "CRIMINAL LAW" ed for in article 39 of nation of probable
the Revised Penal cause of the
Code. prosecutor.
June 1, 2020 June 7, 2020
In "BP 22" In "REMEDIAL LAW"

! June 14, 2020 ! Robert Divinagracia ! REMEDIAL LAW ! ARBITRARY

DETENTION, CRIMINAL LAW, HABEAS CORPUS, PRELIMINARY INVESTIGATION,
WAIVER OF ART 125 RPC

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