Sunday, October 23, 2016

Overdue process?

No person shall be deprived of life, liberty or property without due process of law…” is the most basic right enshrined in the first section of our Constitution’s Bill of Rights. Deprivation is not necessarily unconstitutional. What is prohibited is deprivation without due process.

Illegal arrests and searches. Moreover, the second section of the Bill of Rights guarantees “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.”

To deprive a person of this right—that is, to be able to arrest him/her, or to search his/her “body, houses, papers, and effects”—the arresting officer must first secure an arrest or search warrant from a judge.

In turn, to issue either or both warrants, the judge is required to personally determine “probable cause” by examining under oath the complainants (or the police officers) and the witnesses they may produce. The warrant must specify the place to be searched and the persons or things to be seized. It cannot be used to search any place or to seize any person or thing other than those specified therein.

My Oct. 6 column (“Dismal record in prosecuting drug cases”) explained the exceptions to the need for warrants, like those made in flagrante delicto and in “hot pursuit.

Note that courts strictly construe these exceptions. Defects in the warrants, like where the judge did not personally examine the witnesses, or where the arresting officer did not have personal knowledge of the facts and depended merely on “surveillance operations,” make the arrest and/or search illegal.

Similarly, our Constitution grants suspects the so-called “Miranda rights” requiring the arresting officer to inform suspects of their rights to remain silent and to have competent and independent counsel; otherwise, the arrest and search would likewise be illegal.

Moreover, confessions extracted with “torture, force, violence, threat, intimidation, or any other means which vitiate the free will” would also be illegal.

In all these instances, the illegally obtained evidence, even if tending to prove guilt, would be inadmissible in evidence, and would thus result in the acquittal of the accused.

Libertarian pendulum. Why is the Constitution so protective of suspects and so strict on police officers? Because when it was crafted in 1987, the horrifying abuses during the martial law regime were still fresh. Our constitution drafters wanted iron-clad protection for the innocent, especially the poor and the marginalized.

However, the libertarian pendulum swung too much to the opposite direction, resulting in the timidity of the police, lest they be held liable administratively and criminally. The net result is the rise in criminality. Grafters, killers, rapists and drug lords misuse the liberality of the Constitution to evade liability for their crimes and misdeeds.

And even when police officers strictly observe constitutional rights, some prosecutors and judges, out of sheer ignorance, apathy, laziness, or corruption, fail the justice system. So, too, witnesses are bribed, lose their memory, or otherwise disappear. Many lawyers thrive in technicalities and delays, rather than in their sworn duty to do justice to everyone.

Extralegal solutions. The consequence is a general revulsion against democratic methods, overlooking that means are as important as ends. Due process is equated with costly suits, tiring delays, inexplicable technicalities, long-winded trials, interminable appeals, unwelcome acquittals and plain injustice.

In frustration, people tend to take matters into their own hands and turn to extralegal and extrajudicial shortcuts.

To solve this revulsion to “overdue process,” the police, the prosecutors, the lawyers and the judges will have to cooperate, think outside the box, moderate the pendulum swing and craft innovative ways to provide quality and speedy justice for all. There must be a way to safeguard our precious constitutional rights without the “over” in due process.

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Monday, August 1, 2016

Last will executed by blind person valid

Dear PAO,
My aunt suffered a stroke last year. She was able to recover but the incident resulted in the loss of her eyesight. Just recently, she sought my assistance to type and print her last will because she says she wants to secure my future and my sister’s in case anything should happen to her. She has no children of her own and was never married but she was the one who took care of us because our parents passed away when I was ten years old. Will her will be considered valid despite her being blind? What other regulations should she consider? Any advice will be appreciated. Thank you and more power.
Dear Athena,
All persons may make a last will and testament, provided that they are not expressly prohibited by law, not under 18 years of age and must be of sound mind at the time of the execution of such will (Articles 796, 797 and 798, New Civil Code of the Philippines).
To be of sound mind, the law states that it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It is only necessary that he knows, at the time of making the will, the nature of the estate to be disposed of, the proper objects of their bounty and the character of their testamentary act (Article 799, Ibid.).
Accordingly, we find nothing amiss if your aunt executes her last will and testament as long as she possesses the foregoing qualifications. The fact that she has lost her eyesight because of the stroke that you said she suffered last year will not affect her legal capacity to execute her will.
Nevertheless, we wish to emphasize that your aunt’s typewritten and printed will should be subscribed by her at the end thereof or by her name written by some other person in her presence and with her express direction, and attested and subscribed by three (3) or more credible witnesses who appear before her and of one another. The will must also be signed by your aunt or the person she requested to write her name as well as the instrumental witnesses to her will on the left margin of each and every page thereof, except the last. The pages of her will must be numbered correlatively in letters placed on the upper part of each page. The attestation must state the number of pages used upon which her will is written, and the fact that she signed the will and every page thereof, or caused some other person to write her name, under her express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of your aunt and of one another. Should the attestation clause be written in a language not known to any of the witnesses, it shall be interpreted to them (Article 805, Id.).
Your aunt’s last will and testament must be acknowledged by her and her witnesses before a notary public (Article 806, Id.).In addition, her will must be read to her twice; once, by one of her subscribing witnesses, and again, by the notary public before whom she acknowledged the will (Article 808, Id.).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to

Monday, June 13, 2016

Helping a friend by being his judicial guardian

Dear PAO,
My family friend owns a successful food catering business. I was once his business partner, but I have already withdrawn my share and interests from the business to start my own family. I found out, however, that my friend had an accident that rendered him severely injured that caused serious brain damage to him. As a result of the injury, he now has the mental capacity of a five-year-old boy. His business is now in shambles, because of his inability to attend to his food catering and the constant in-fighting among his family members as to who will now manage his business and property. These have already resulted in serious losses to his business.
As a close friend and former business partner, I am sincerely concerned about this and I want to help his family on what to do legally in making sure his business is attended to and administered well. Because of this, can you please advise us on what we can do to legally protect him and his business and property by administering them, considering his current medical situation? Thank you for any advice.
Dear Hector,
Considering the personal condition of your friend at present and the necessity to legally secure his business interests, you may advise his family to consider the appointment of a judicial guardian who will formally guard over your handicapped friend and his property. A judicial guardian is a competent person appointed by the court over the person and/or property of either a minor or an incompetent ward to represent the latter in all of his civil acts and transactions (Florenz D. Regalado, Remedial Law Compendium Volume II, 10th Revised Edition, 2004).
Based on your narration, it appears that your family friend may qualify as an incompetent under the definition of the law on guardianship, which defines an incompetent as:
“Sec. 2. Meaning of word “incompetent.” – Under this rule, the word “incompetent” includes persons suffering the penalty of civil interdiction or who are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but by reason of age, disease, weak mind and other similar causes, cannot, without outside aid, take care of themselves and manage their property, becoming thereby an easy prey for deceit and exploitation” (Rule 92, Revised Rules of Court).
Since that present medical condition of your friend at present falls under the above-mentioned description as to who may be considered as incompetent, then you as a friend or any of his family members may file a petition before the court to be appointed as his guardian. If you do not wish to be your friend’s guardian, his other relatives may also apply for the appointment as guardian. The law provides as to who else may file a petition for guardian, to wit:
“Sec. 1. Who may petition for appointment of guardian for resident. – Any relative, friend, or other person on behalf of a resident minor or incompetent who has no parent or lawful guardian, or the minor himself if fourteen years of age or over, may petition the court having jurisdiction for the appointment of a general guardian for the person or estate, or both, of such minor or incompetent. xxx” (Rule 93, Ibid., emphasis supplied).
The appointed judicial guardian acts as the administrator and manager of the property and affairs of the ward. The general duties and responsibilities of a guardian are laid down under Rule 96 of the Revised Rules of Court that includes among others: payment of the ward’s debts, settling of his accounts, collecting debts, rendering an inventory of the ward’s estate, appearing in court in actions for the ward and other duties specified by the rule.
By having a judicial guardian appointed for your friend, his person and his property can be protected and administered properly to avoid further unnecessary losses to his property.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to