WHEN A PROTEST LETTER ON THE NIGHT COURT BECOMES A GROSS

INSUBORDINATION?

Court Administrator D charged Judge A for Gross Insubordination in writing a protest

letter about the night court operation in X City questioning its legality, rationality and
productivity. To quote the subject letter of Judge A:

XXX XXX XXX

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
1
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

2
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).

Under the Old Rule, it is silent as to the person 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.

3
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 detention of the accused being arraigned at night for violation of ordinances. When I
was not given any legal justification, I requested to be relieved from night court. My
experience showed that night court is a waste of time for all. The cases tried at night
court can be tried during day time without burdening the three (3) pillars of our criminal
justice system. For example, in W City, the crime suspected was arrested at 3:00 p.m.
for illegal vending, and information against him was filed at 4:00 p.m. at court. The
police officer detains the accused from 4:00 p.m. to 7:00 p.m. or until such when the
night court opens. If it opens at 7:30 p.m., there is arraignment of the accused. Usually,
the accused enters a plea of guilty because there is only a fine of P200. If the accused
refuses to enter into a plea of guilty, his case will be calendared in a regular day. As a
public prosecutor, I witnessed only around two (2) to three (3) calendared cases by the
night court, and the arraignment lasts for only few minutes. Then we all go home. This is
a clear violation of the directive to stay in court from 4:00 p.m. to 11:00 p.m. In fact, it is
a matter of few hours from night to day when an accused case can be tried by the same
court, the police officer should have waited for day time to file the information and bring
the accused for arraignment in court during day time instead of night time. There are no
tourist crimes tried by the night court when I was a Manila public prosecutor assigned
there. The cases tried are violation of city ordinances , mostly on illegal vending in the
night courts. I heard that these cases were filed for money making scheme by the police
officers. From the information gathered, only those accused who did not give them
money were arrested, detained and brought to the night courts.

Third, there is a grave violation of the right of government employees against long and
extended period of work with no additional pay at night. This is a form of exploitation of
workers whose rights are enshrined under the Constitution. It bears pointing out that
additional compensation for night time work is founded on public policy (Mercury Drug
Co., Inc. vs. Dayao, G.R. No. L30452, September 30, 1982, 117 SCRA 99, 114; Article
6, New Civil Code). Working at night is violative of the law of nature for it is the period
for rest and sleep. An employee who works at night has less stamina and vigor. Thus,
he can easily contract disease. The lack of sunlight tends to produce anemia and
tuberculosis and predispose him to other ills. Night work brings increased liability to
eyestrain and accident (Association of International Shipping Lines, Inc et al. vs. United
Harbor Pilots' Association of the Phils. Inc., G.R. No. 172029, August 06, 2008). Serious
moral dangers also are likely to result from the necessity of traveling the street alone at
night, and from the interference with normal home life (Shell Company vs. National
Labor Union, 81 Phil. 315, 328 (1948), citing Commons and Andrews, Principles of
Labor Legislation, 4th rev. ed., p. 142). Hygienic, medical, moral, cultural and socio-
biological reasons are in accord that night work has many inconveniences and when
there is no alternative but to perform it, it is but just that the laborer should earn greater
salary than ordinary work so as to compensate the laborer to some extent for the said

4
inconveniences (Poquiz, Labor Standards Law with Notes and Comments, 1999 ed.,
pp. 176-177, citing Barbash, The Practice of Unionism, p. 145). Why is a laborer or
employee who works beyond the regular hours of work entitled to extra compensation
called in this enlightened time, overtime pay? Verily, there can be no other reason than
that he is made to work longer than what is commensurate with his agreed
compensation for the statutorily fixed or voluntarily agreed hours of labor he is
supposed to do. When he thus spends additional time to his work, the effect upon him is
multi-faceted: he puts in more effort, physical and/or mental; he is delayed in going
home to his family to enjoy the comforts thereof; he might have no time for relaxation,
amusement or sports; he might miss important pre-arranged engagements; It is thus the
additional work, labor or service employed and the adverse effects just mentioned of his
longer stay in his place of work that justify and is the real reason for the extra
compensation that he called overtime pay. Overtime work is actually the lengthening of
hours developed to the interests of the employer and the requirements of his enterprise.
It follows that the wage or salary to be received must likewise be increased, and more
than that, a special additional amount must be added to serve either as encouragement
or inducement or to make up for the things he loses which we have already referred to.
And on this score, it must always be borne in mind that wage is indisputably intended as
payment for work done or services rendered (Philippine National Bank vs. Philippine
National Bank Employees Association (PEMA), G.R, No. L- 30279, July 30, 1982, 115
SCRA 507). The creation of night courts is violative of Section 278 and 283 Chapter 4,
Volume I, Government Accounting and Auditing Manual, providing as follows: "Sec 278.
Authority to render overtime service. - In general, rendition of overtime services may
only be authorized where the work or activity has to be completed on a fixed date and
the scheduled date of completion cannot be met within regular work days and hours; or
where although there is no fixed date of completion, the prolonged delay in, or non-
completion of the work or activity, shall: a. Cause financial loss to the government or its
instrumentalities; b. Embarrass the government due to its inability to meet its
commitments; or c. Negate the purposes of which the work or activity was conceived."

Fourth, it is very burdensome to attend the court at night. For instance, our Court hears
cases from 8:30 a.m. to 11:30 a.m. daily from Monday to Thursday. It is very tiring for
the public prosecutor and public attorney, not to mention for the judge and the entire
court staff, to attend the night court from 4:30 p.m. to 11:00 p.m. after attending the
tedious hearing in the morning, only to attend the exhausting hearing on the following
day, without additional pay. Also, no witnesses will attend the hearing during the night
court because of the dangers lurking at night, not to mention that night time is a period
for rest and sleep. If subpoena is needed to compel attendance of the witnesses at
night, this causes delay in the speedy hearing of cases because of difficulty of securing
their presence at night. It is a better alternative to hear the cases scheduled at night to
be heard in the morning. What more, if there are no cases filed at night to be heard by
the night court, it is ridiculous for the judge, public prosecutor, public attorney and the

5
entire court staff to merely stay there, eat dinner there, which means additional
expenses, and then go home not doing anything productive at the night court. Please be
informed that our Supreme Court created before courts that exclusively hear
extrajudicial killings of media men, later on, the law creating them was revoked,
because no cases are filed in these courts. This is similar with the night courts to be
established in X City, as there are no tourist crimes reported, and, the accused will be
objecting to their inquest by the public prosecutors and their detention by the police
officers at night, later on, these night courts will be permanently closed for non-
attainment of the objectives they are created.

Fifth, it is risky to work at night because of lack of security. Most of the staff of this Court
live far away from X City. There is a danger of being held up at night or carjacked at
night. A judge can be an easy target for a murder plot at night by any litigant who has
grudge for the sentence or decision rendered by the court. The police security is up to
court hearing only. Outside the court premises, there is no more police security.

Lastly, the establishment of night courts in X City will not unclog a court's criminal
docket. The situation in W City and Z City are not similar with X City. A study of the X
Metropolitan Trial Courts dockets reveals the big difference of the cases filed compared
to other cities in the National Capital Region. Most of the cases in X Metropolitan Trial
Courts are Theft and BP No. 22. These cases entail a full blown trial because almost all
of the accused refuse to enter into plea bargaining. In W Metropolitan Trial Courts,
majority of the accused pay the fine for the violation of ordinances not involving any
tourist crime during the night court hearing. Also, a study must be conducted by your
department, if necessary, about the effectiveness of, night courts in W City and Z City,
and if these night courts are attaining the purposes they were created. If not, there is no
reason to request for the establishment of a night court or tourism court here in X City.
Another thing, there is an uneven assignment of judges alone to the night court. For
example, In W City, there are thirty (30) judges, thus there is once a month night court
assignment by a judge there. But what is actually happening, lady judges are not
attending the night court as they give their respective assignment to some male judges,
notably to Judge B. This is a disobedience to Administrative Order No. 234,
predecessor of Administrative Order No. 123.

I hope you find merit with this letter. May your department reconsider your request for
the establishment of night courts in X City. With due respect, it will be appreciated if
your department will give additional compensation and provide police security to the
judges, public prosecutors, public attorneys and the entire court staff, if it insist of
establishing night courts here without conducting any study.

6
Looking forward to hear from your department about these concerns.
XXX XXX XXX
On the very same date she received a copy of the said order, she immediately wrote the
Court Administrator D (copy furnished the Station Investigation and Detective
management Section [SIDMS] of the X City Police Station) expressing her disapproval
of the establishment of night courts, particularly in X City. Moreover, she wrote
Secretary C of the Department of Tourism (DOT) expressing her strong dissent vis--
vis the night courts and even pointing out matters which the DOT allegedly failed to
consider when it made the request for night courts. Worse, she even had the temerity
to demonstrate her criticisms and insubordination outside the mantle of the judiciary by
expressing her impertinence before the agencies of a separate branch of government
(i.e. the Philippine National Police [PNP] and the Department of Tourism, both under the
Executive Branch). While members of the judiciary are not deprived of the prerogative
to voice out their contrary opinions and sentiments on issues which they believe affect
their functions as magistrates, they must always bear in mind that, being esteemed
members of the bench, they have the duty to maintain and observe the so-called proper
chain of command in the judiciary, exclusive of any outside interference or intrusion.
Simply put, judges in any matter related to the performance of their functions as such,
should bring their views, thoughts and grievances solely and exclusively before their
superior the Supreme Court.

In the instant matter, while Judge A indeed addressed her concerns [anent the night
courts] to Court Administrator D in her protest letter, nonetheless she also took it upon
herself to furnish a copy thereof to the SIDMS of the X City Police Station, knowing fully
well that the PNP- X City is not privy to the establishment of night courts. Worse, her
views on the purported liability under the Rule on Summary Procedure undeniably
created confusion among the officials of SIDMS. Without doubt, in lettering a non-
judicial entity [like the SIDMS- X City] respondent on an issue that should have been
exclusively addressed to, and resolved by the Court through the Court Administrator
D, misunderstanding is likely to arise.

In a similar complaint filed by four Judges and seventy court employees earlier against
Judge A, they argued that the protest letter denigrated the Office of the Chief Justice
and the Office of the Court Administrator on the night court order issuance and
implementation. The protest letter resulted into confusion among the policemen in X
City.

7
Did Judge A commit Gross Insubordination in writing a protest letter on night court?
The answer is in the negative.

The elements of Insubordination are:

(1) There is refusal to obey;

(2) The refusal to obey is willful or intentional;
(3) The willful or intentional refusal to obey must be characterized by a wrongful and
perverse attitude; and
(3) There is lawful and reasonable order of superior officer (Micro Sales Operation
Network vs. NLRC, G.R. No. 155279, October 11, 2005, 472 SCRA 328, 335-336).

There was no refusal to obey because of the night court protest.

Judge As letter to the Honorable Office of the Court Administrator said that she will
report for night court duty once she receive a copy of the Your Honors Decision on her
night court protest.

It is Judge As humble submission that her protest to night court will become moot and
academic if she will report to night court duties without waiting for the Supreme Court
En Banc resolution. In Gunsi, Sr. vs. Commissioners, The Commission on Elections,
G.R. No. 168792, February 23, 2009, the Supreme Court defined a moot and academic
case as follows: A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon would be of
no practical value. As a rule, courts decline jurisdiction over such case, or dismiss it on
ground of mootness. She must not be penalized for entertaining such honest belief that
is why, she did not report to night court duty, but her court staff did.

Judge As court employees reported to night court duties to disprove deliberate and
willful insubordination.

8
There was no willful and intentional disobedience because the night court protest
has legal bases.

The burden of proof is incumbent upon Court Administrator D who failed to discharge
this burden for failure to provide convincing proof of each and every element of all the
charges leveled against Judge A.
There is no element of willfulness characterized by perverse attitude because of the
unresolved protest to the night court was made earlier than the administrative complaint
of four Judges and seventy court personnel as well as earlier than the administrative
complaint of Court Administrator D. Prematurity is a ground for dismissal of any
complaint. This administrative complaint is not yet ripe for judicial determination
because of the pendency of protest to the night court. There must be first resolution of
the night court protest before Judge As subsequent action thereto can be considered
as a breach of the norms of judicial ethics. Ripeness refers to the readiness of a case
for litigation; "a claim is not ripe for adjudication if it rests upon contingent future events
that may not occur as anticipated, or indeed may not occur at all." Without undertaking
to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is
to prevent the courts, through avoidance of premature adjudication, from entangling
themselves in abstract disagreements over administrative policies, and also to protect
the agencies from judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the challenging parties. The problem
is best seen in a twofold aspect, requiring us to evaluate both. There was a pending
courts protest to the night court thus the administrative charge of Insubordination is
premature. To apply by analogy is the jurisprudence in DBP vs. Licuanan, G.R. No.
150097, February 26, 2007: Since demand, which is necessary to make respondents
guilty of default, was never made on respondents, the CA and RTC correctly ruled that
the foreclosure was premature and therefore null and void. Thus, the administrative
complaints must be dismissed on the ground of prematurity.

There was no willful or intentional refusal to obey that must be characterized by a

wrongful and perverse attitude because her night court protest has legal bases.
There was a legal justification for it.

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

9
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

10
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). Under the Old Rule, it is silent as to the person
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.

11
The jurisprudence of Luz vs. People, G.R. No. 797788, February 29, 2012 held, under
R.A. 4136, or the Land Transportation and traffic Code, the procedure for dealing with
traffic violation is not the arrest of the offender but the confiscation of the driver's license
of the latter. At the time that he was waiting for PO3 Alteza to write his citation ticket,
petitioner could not be said to have been "under arrest." There was no intention on the
part of PO3 Alteza to arrest him, deprive him of his liberty, or take him into custody.
Prior to the issuance of the ticket, the period in which at the police station may be
characterized merely as waiting time. In fact, as found by the trial court, PO3 Alteza
himself testified that the only reason they went to the police sub-station was that
petitioner had been flagged down "almost in front" of that place. Hence, it was only for
the sake of convenience that they were waiting there. There was no intention to take
petitioner into custody. It also appears that, according to City Ordinance No. 98-012,
which was violated by petitioner, the failure to wear a crash helmet while riding a
motorcycle is penalized by a fine only. Under the Rules of Court, a warrant of arrest
need not be issued if the information or charge was filed for an offense penalized by a
fine only. It may be stated as a corollary that neither can a warrantless arrest be made
for such an offense. Now to relate this jurisprudence with the 1991 Revised Rules on
Summary Procedure, one of the offenses under the same Rules is violation of traffic
laws, rules and regulations [Section 1, B (1) RRSP] that is covered by A.O. No. 19-
2011. Therefore, the arrest and detention of nighttime violators of traffic law, rules
and regulations for the night court operation under A.O. No. 19-2011 are illegal.

Under Section 1, Rule XVII of the Omnibus Rules Implementing Book V of the
Administrative Code of 1987, heads of department or agencies are mandated to require
all officers and employees under him to strictly observe the prescribed government
office hours. Likewise, Section 5, Rule XVII of the same Omnibus Rules stipulates that:
"Officers and employees of all departments and agencies, except those covered by
special laws, shall render not less than eight (8) hours of work a day for five days a
week or a total of forty (40) hours a week, exclusive of time for lunch. As a general rule,
such hours shall be from eight o'clock in the morning to twelve o'clock noon and from
one o'clock to five o'clock in the afternoon on all days except Saturdays, Sundays and
Holidays." The foregoing provisions of law lay the ground rules on government officer
hours. It mandates an eight-hour daily work schedule, or a total of forty hours a week,
for all government employees, exclusive of the lunch break. With due respect, the
night court duty gravely violated this rule.

In PNB vs. PEMA and CIR, G.R. No. L-30279, July 30, 1982: Why is a laborer or
employee who works beyond the regular hours of work entitled to extra compensation

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called in this enlightened time, overtime pay? Verily, there can be no other reason than
that he is made to work longer than what is commensurate with his agreed
compensation for the statutorily fixed or voluntarily agreed hours of labor he is
supposed to do. When he thus spends additional time to his work, the effect upon him is
multi-faceted: he puts in more effort, physical and/or mental; he is delayed in going
home to his family to enjoy the comforts thereof; he might have no time for relaxation,
amusement or sports; he might miss important pre-arranged engagements; etc., etc. It
is thus the additional work, labor or service employed and the adverse effects just
mentioned of his longer stay in his place of work that justify and is the real reason for
the extra compensation that he called overtime pay. Overtime work is actually the
lengthening of hours developed to the interests of the employer and the requirements of
his enterprise. It follows that the wage or salary to be received must likewise be
increased, and more than that, a special additional amount must be added to serve
either as encouragement or inducement or to make up for the things he loses which we
have already referred to. And on this score, it must always be borne in mind that wage
is indisputably intended as payment for work done or services rendered. With due
respect, the night court duty gravely violated this jurisprudence.

However, none of the judges and court personnel reporting for night court duties can
avail of overtime pay because of Sections 278 and 283, Chapter 4, Volume I,
Government Accounting and Auditing Manual for lack of urgency of work completion. A
night court duty is a violation of constitutional rights under Article II, Section 18 and
Article XIII, Section 3 of the 1987 Constitution.

A legal complication in the issuance of the questioned Administrative Order will expose
me as a Judge to criminal liability for violation of RA No. 3019, Section 3(a), to quote:

RA No. 3019, Section 3. Corrupt practices of public officers. In addition to acts or

omissions of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be unlawful:

XXX (a) Persuading, inducing or influencing another public officer to perform an act
constituting a violation of rules and regulations duly promulgated by competent authority
or an offense in connection with the official duties of the latter, or allowing himself to be
persuaded, induced, or influenced to commit such violation or offense. XXX

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Judge A will not subscribe to the arguments of four judges and seventy court
employees to follow first an illegal order before protesting because of RA No. 3019,
Section 3 (a). Lets say Court Administrator D issued an administrative circular that
orders all Judges to impose or deny bail to all accused charged with no bail required
offenses covered by the Rules on Summary Procedure during nighttime arrest, it is
wrong to follow first the illegal order before protesting it. Another example is Chief
Justice Xs order to jail innocent by-standers at night, Judge A will not jail innocent by-
standers at night when she has a protest against such illegal order, otherwise, what is
the point of protesting when she already followed the illegal order under protest?

The actual case is A.M. No. MTJ- 12-1813 formerly A.M. No. 12-5-42-METC
Office of the Court Administrator vs. Judge Eliza B. Yu.
This charge was reiterated in OCA IPI No. 11-2378-MTJ Executive Judge
Bibiano Colasito, Vice Executive Judge Bonifacio Pascua, Judge Restituto Mangalindan
Jr., Judge Catherine Manodon, Miguel Infante, Emma Annie Arafiles, Racquel Dinao,
Pedro Doctolero Jr., Lydia Casas, Auxencio Clemente, Eleanor Bayog, Leilani Tejero -
Lopez, Manolo Garcia, Jasmine Lindain, Fetronillo Primacio Jr., Evelyn Depalobos,
Benjie Ore, Erwin Russ Ragasa, Bien Camba, Marlon Suligan, Arnold Obial, Ronald
Quijano, Eduardo Ebreo, Chanda Tolentino, Ronalyn Armarvez, Ma. Victoria Ocampo,
Elizabeth Lipura, Maryann Cayanan, Ma. Luz Dionisio, Maribel Molina, Edward Eric
Santos, Emilio Domine, Ferdinand Molina, Ricardo Lampitoc, Jerome Aviles, Ana Lea
Estacio, Cristina l.ampitoc, Melanie Ragasa, Evangeline Ching, Lawrence Perez,
Edmundo Vergara, Lanie Aguinaldo, Karla Mae Pacunayen, Domingo Hocosol, Edwin
Ubana, Elizabeth Villanueva, lgnacio Gonzales, Zenaida Geronimo, Soledad Bassig,
Marvin Balicuatro, Aida Josefina lgnacio, Benigno Marzan, Marissa Mashoor Ratsgoor,
Marie Luz Obida, Joseph Pamatpat, Fortunato Diezmo, Norner Villanueva, Edwin
Jurok, Fatima Rojas, Armina Almonte, Anna Marie Francisco, Ma. Cecilia Getrudes
Salvador, Zenaida Geronimo, Virginia Galang, Elsa Garnett, Amor Abad, Emelina San
Miguel, Maxima Sayo, Romer Aviles, Froilan Robert Tomas, Norman Garcia, Dennis
Echegoyen and Noel Labid vs. Judge Eliza B. Yu

The Philippine Supreme Court sustained the legal arguments of Judge Eliza B.
Yu on appeal because the Office of the Court Administrator omitted them in its report
and recommendation dated February 11, 2016.

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