PHILIPPINES: Comparative legal critique of Abadilla Five & Vizconde cases to judicial decisions in common law countries 

Abstract: This paper studies the decision of the Philippine Supreme Court on two cases, People v. Lumanog (Abadilla Five case) and Lejano v. People (Vizconde massacre case), in comparison to the theory and practice in common law countries on the protection of Constitutional rights on the issue of arrest and detention, self-incrimination, legal assistance and exclusion of evidence in the criminal process.

Using these two cases, already concluded by the Supreme Court as closed, this paper will compare case-laws in common law jurisdictions discussed in course Rights and Remedies in Criminal Process (LLAW 6144) for a degree of Master of Law in Human Rights (LLM (HR)) at the University of Hong Kong, with how they are interpreted and applied in the Philippine criminal process.

Mr. Reyes would like to thank Professor Simon Young, Associate Professor & Director of the Centre for Comparative and Public Law, at the Faculty of Law, for his permission and encouragement to publish this paper, and his kind remark that: “It is a very good paper on a timely topic”.


In 2010, the Supreme Court (SC) of the Philippines concluded two controversial cases, People v. Lumanogi and Lejano v. Peopleii after over a decade of court proceedings. These decisions raised questions on how Constitutional rights are protected with regard to arbitrary detention,iii self incrimination, right to counsel and exclusion of evidence, under the 1987 Constitution and Statutory laws. The SC decisions give rise to questions of legal certainty, consistency and fairness in administration of justice.

In Lumanog, the court convicted the five accused for the murder of a police colonel based on the testimony of a witness–testimony that bears fatal inconsistencies and questions his credibility. In Lejano meanwhile, the same court acquitted the seven accused for murder of three persons because the witness for prosecution was not credible as her testimony had inconsistencies.  In both cases, the court decided by heavily relying on testimonial evidence of one eyewitness. To examine these decision is relevant, not only to expose the denial of rights and remedies, but also to assess how the Philippine courts protects fundamental rights written in Constitution and Statutes in comparison to other common law jurisdiction.

The Philippine legal system is hybrid that combines common law, civil law and the customary laws. Decisions from common law countries can be invoked as sources of law where there are no precedents yet, not only in terms of jurisprudence, but also on the conception, meaning, interpretation and application of fundamental Constitutional rights. The common law character of its court system is drawn from its Constitutional provisionivand cemented by the new Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.v It is evident in Lejano case when the court afforded judicial notice to two casesvi promulgated by the US Supreme Court on the importance of forensic evidence.

For this reason, case laws in common law jurisdiction cited in our course offers prospect to initiate legal debate to improve protection of rights and ensuring remedies in criminal process by way of comparative analysis. In discussing Constitutional rights, I will examine three areas: firstly, the court’s interpretation of arbitrary detention and the right to counsel; secondly, the application of test and principles on exclusion of evidence–particularly involuntary confessions during custodial investigationvii; thirdly, the balance between Constitutional rights and interest of the society in the administration of justice.

Moreover, in this paper, in analyzing Lumanog and Lejano in comparison to common law jurisdiction, I divided the analyses into three sections:

Firstly, I begin with Lumanog after giving the summary of the case. Here, I will examine the court’s decision in comparison to case laws in common law jurisdiction on arrest and detention, right to counsel, derivative evidence, credibility of the witness, constitutional rights, self-incrimination and exclusion of evidence.

Secondly, in Lejano after giving the summary of the case, I will discuss exclusion of evidence in comparison to Lumanog and common law cases, arrest and detention, inadmissible evidence, derivative evidence, constitutional rights on exclusion, reliability of witnesses, constitutional rights and society interest, test on reliability of witnesses and forensic evidence.

Thirdly, before making conclusion, I will examine whether the remedy for stay of proceedings were applicable in Lumanog and Lejano or this form of remedy that existed in common law jurisdiction exists in theory and in practice in local courts as a form of remedy for abuse of legal process.



“ABADILLA MURDER CASE: This case is about the murder of Rolando Abadilla, a police colonel during Marcos regime, at 8:30 on June 13, 1996 at the Katipunan Avenue, Quezon City. Originally, there were seven accused charged in this case. On August 11, 1999, the Regional Trial Court (RTC) of Quezon City acquitted two of them and convicted the five others, now collectively known as the Abadilla Five. They are Lenido Lumanog, Augusto Santos, Senior Police Officer 2 (SPO2) Cesar Fortuna, Rameses de Jesus and Joel de Jesus. Their original conviction was capital punishment but their sentence was modified to life imprisonment when the Death Penalty was abolished.

There was only one vital witness for the prosecution, Freddie Alejo. It was Alejo who had “positively identified Joel and Lorenzo (delos Santos) during a police line-up. Alejo confirmed these two (2) as the persons he saw from his guard post walking to and fro before the shooting incident”. The RTC, however, acquitted delos Santos despite being “positively identified” by Alejo as one of those who was present at the crime scene.

Alejo’s testimonies in open court were not consistent to what he had said to the police investigators immediately after the murder. In open court, he said there were six, not four assailants; that it was two other gunmen, not one of the four present close to the car who pointed the gun at him; and he was not nervous but rather had the opportunity to see the faces of all the assailants facing him all at the same time.

Apart from Alejo, there was another witness earlier, Merlito Herbas. Herbas and Alejo worked for the Abadillas as security guards. Like Alejo, Herbas also at first instance identified Joel de Jesus as one of the gunmen during a police line-up, but later withdraw his statement in open court. The court rejected his testimony because he was a ‘disgruntled witness’. Herbas had testified for the defence instead of the prosecution when the Abadillas “did not fulfil his promise to give him (Herbas) exactly the same salary he was receiving” and when he was “told that he would no longer be presented as witness because the testimony of Alejo would be sufficient”. The prosecution did not present him as their witness during the trial.

Like Herbas, court records showed that Alejo had also been receiving money and free accommodation from the Abadillas. For example, the prosecutor, instead of admitting Alejo to the Witness Protection Programme (WPP) during trial, rather “chose instead to allow the Abadillas, who had an interest in Alejo’s testimony, to make him dependent on them for his livelihood at least for the duration of the trial of the case”. The prosecutors, the RTC and the CA have been made aware of this fact by the defense.

Similar to Lejano vs. People, the five accused made a defence of alibi claiming that they were somewhere else on June 13, 1996 when Abadilla’s murder happened. Their claims were corroborated by witnesses – their relatives, friends and documentary evidence.”viii


By comparing Lumanog to R. v. Grantix, the definition of the Supreme Court of Canada quoted below offers a robust protection of rights in the Canadian Charter than the rights in the 1987 Constitution of the Philippines and the Statutory laws emanating from it:

“…detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.”

This obligates the police to;

“…the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel “without delay”. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law”

In Lumanog when one of the five accused, Joel De Jesus, “was apprehended”x on June 19, 1996, six days after the murder of a police colonel, the manner in which the police arrested, detained and extracted a confession from him breached his Constitutional rightsxias well as the Revised Rules of Criminal Procedurexii. The manner of his arrest failed to meet the requirements under the Criminal Procedure on arrest without warrant. There was no justification for the police not to obtain an arrest warrant from the court because “two (2) days after the ambush-slay of Abadilla, their investigation had already established the identities of a number of suspects through photo files and forensic sketches of suspects provided by eyewitnesses.”

The court, however, did not deal with the legality of De Jesus’ arrest. Despite his arrest and detention being arbitrary, the court admitted his self-incriminatory confessions under duress as evidence, as well as his identification of other accused in an identification parade while in police custody. It is true that the court convicted the five accused not solely on the basis of his identification of the other four accused. However, the arbitrary arrest of De Jesus resulted in self-incriminating confession that implicated the other four accused making his identification of them derivative evidence. His confession cannot be voluntary because there were evidence found by the Commission on Human Rights (CHR) that he and other accused were tortured in police custody. I will discuss this in detail in the preceding section.


The court is aware that De Jesus, when arrested and in detention, was not provided a legal counsel “preferably of his own choice,” as required by the Constitution. But to justify that his right to counsel was nevertheless complied with, the court held,

“Since Joel was provided with a lawyer secured by CPDC investigators from the IBP-Quezon City chapter, it cannot be said that his right to a counsel “preferably of his own choice” was not complied with, particularly as he never objected to Atty. Sansano when the latter was presented to him to be his counsel for the taking down of his statement.

The phrase “preferably of his own choice” does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense;”

This is despite knowing that,

“…Atty. Sansano had asked Joel if he understood his answers to the questions of the investigating officer and sometimes stopped Joel from answering certain questions, SPO2 Garcia, Jr. did not say if Atty. Sansano, in the first place, verified from them the date and time of Joel’s arrest and the circumstances thereof, or any previous information elicited from him by the investigators at the station, and if said counsel inspected Joel’s body for any sign or mark of physical torture.”

Here, the court knew full well that the counsel the police provided to De Jesus was a “mere witness to the signing of a pre-prepared confession”; however, the court nevertheless admitted his confession as evidence. By allowing this, the court denied his Constitutional rights of excluding evidence taken from or deriving from violations of his rights. In fact, the court did not only deny his Constitutional rights, but reduces Constitutional rights as irrelevant during custodial investigation by ruling that the accused “cannot simply rely” on them;

“However, they cannot simply rely on those violations of constitutional rights during custodial investigation, which are relevant only when the conviction of the accused by the trial court is based on the evidence obtained during such investigation.”



In comparison, in Grant the court held that the absence of “reasonable grounds” in detaining Grant made the detention arbitrary. It further held that evidence emanating from self-incriminating confession is often excluded. It also clearly articulates when a detention is engaged thereby rendering any confession and evidence taken during this period often excluded;

“…a detention had crystallized during the conversation with Cst. Gomes, before the appellant made his incriminating statements. Because the officers had no reasonable grounds to detain the appellant, the detention was arbitrary”

“…the firearm was “derivative” evidence emanating from a self-incriminatory statement and would very often be excluded on that basis alone.”

In Lumanog the confession and derivative evidence obtained from De Jesus in breach of the Constitution were admitted as evidence in the trial. The arresting police clearly had no reasonable grounds in arresting him because at the time of his arrest he was not committing any crime nor was he subject of arrest order by the court. The charges on him were conceived after, not before his arrest. In Grant, the court put strong emphasis on the “obligation (of the police) to inform the detainee of his or her right to counsel without delay” once the detention is established. Also, it engaged in interpreting the meaning of detention under the Canadian Charterxiii as “a suspension of the individual’s liberty interest by a significant physical or psychological restraint.” In Lumanog, the 1987 Constitution and Statutory rights protecting persons under custodial investigation were not interpreted and applied in the same manner in substance as in Grant under the Canadian Charter.

In Lumanog the court admitted De Jesus self-incriminatory confession as evidence without applying caution despite knowing full well that his detention and custodial investigation was clearly arbitrary as defined by the law.xiv Instead, the court places the blame on him because he made “(no) objection against the counsel’s appointment during the course of the investigation, and (in effect) the accused thereafter subscribes to the veracity of the statement before the swearing officer.” Here, De Jesus’ silence during custodial investigation has incriminated himself further by not objecting to the appointment of the counsel to represent him. To expect from a deeply traumatized torture victim to object while in custody of his torturer is devoid of any reason. The court in effect tells that the accused had no other choice but to cooperate with the legal counsel appointed by the police regardless of whether they are “preferably of his own choice”otherwise, by not objecting, he was “subscribing to the veracity of the statement” regardless of their voluntariness or not.

In comparison, the case of Secretary for Justice v. Lam Tat Mingxv in Hong Kong, where the court applies the common law approach of the ‘confessions rule’, offers more prospects in terms of protection against self-incrimination by testing the voluntariness of a confession. Here, the court applied tests on when a confession can be considered voluntary. The elements to be considered in deciding to include or exclude evidence are the presence of ‘fear’, ‘oppression’ and ‘deception’. In Lumanog, these elements were all established by the Commission on Human Rights (CHR) of the Philippines who found evidence of torturexviand breach to rights of the accused during arrest and detention when confession were extracted from De Jesus and other accused. The ‘confession rule’ applied in Lam Tat Mingas to the voluntariness of a confession and its admissibility as evidence, decided ten years earlier than Lumanog, was clearly absent in Philippine courts.


Apart from De Jesus, there was another accused, Lorenzo Delos Santos, that witness Freddie Alejo also positively identified as one of the perpetrators. Like De Jesus, Delos Santos also executed a statement while in police custody “admitting his participation in the ambush-slay.” But because Delos Santos was already acquitted by the lower court, the apex court did not elaborate on the circumstances of his acquittal. In rejecting the petition of the accused for acquittal on the basis of questions on the reliability of Alejo’s testimony, the court held that the acquittal of Delos Santos could not benefit them, invoking the earlier case of People v. Uganapxvii and People v. Court of Appeals.xviii The court, however, did not elaborate on the details and substance of these case laws on which they based its decision in Lumanog. In the Philippines, the verdict of acquittal cannot be appealed; however, the apex court has power to render its earlier jurisprudence inapplicable when they breached Constitutional rights. But in this case the court did not do so when it held,

“…Alejo had categorically pointed to as one (1) of the two (2) men whom he saw walking to and fro in front of his guard post prior to the shooting incident, and as one (1) of the two (2) men who pointed a gun at him and ordered him to get down..

A verdict of acquittal is immediately final; hence, we may no longer review the acquittal of accused Lorenzo delos Santos. However, the acquittal of their co-accused does not necessarily benefit the appellants.  We have ruled that accused-appellant may not invoke the acquittal of the other conspirators to merit the reversal of his conviction for murder.”

Unlike De Jesus, the legal counsel of Delos Santos was “convinced that Lorenzo was giving his statement without any pressure or force,” but there is still a question of impartiality and credibility because the person taking notes and typing his statement were the same police officers who took custody of him. Also, in CHR’s investigation they found evidence he was tortured. The lawyer appointed to him has delegated to the policemen, instead of doing it himself as the legal counsel, in putting his oral confessional statement in writing. Therefore, even though Delos Santos agreed and his Constitutional rights were upheld, but the manner how his statement was taken and reduced in writing were questionable in terms of its accuracy. In his confession, not only did he implicate De Jesus, but also three others that De Jesus had also identified during the identification parade: Rameses de Jesus, Lenido Lumanog, Cesar Fortuna and four others, “as among those who participated in the ambush-slaying.”

In fact,  the identification of the five accused convicted by the apex court, Joel de Jesus, Rameses de Jesus, Lenido Lumanog and SP02 Cesar Fortuna, were based on derivative evidence originating from the self-incriminatory confession of one of the accused, Joel de Jesus. In the meantime, Delos Santos was acquitted by the lower court for lack of sufficient evidence. This is despite Joel De Jesus and Delos Santos being “positively identified” by witness Alejo as the perpetrators of the murder. In the decision of the Supreme Court there was no mention as to the questions of legality in the admission of derivative evidence at the early stage of police investigation and trial by the lower court. Thus, the admission of De Jesus’ self-incriminatory confession and the derivative evidence taken from it was never an issue in the trial of this case. The deprivation of De Jesus’ Constitutional rights to exclusion of evidence was not afforded judicial notice.

In comparison, in R v Hape,xix the Supreme Court of Canada strongly invoked the necessity of compliance to the Charter by Canadian officials during investigation proceedings, not only inside their territory but also other territories where Canadian police operate with the consent of local authorities. In Hape, however, the accused failed to show that the laws in Turks and Caicos Islands followed by the Canadian policemen were “inconsistent with basic Canadian values” making his claim for remedy inapplicable. But the Canadian court’s stipulation of the omnipotence of the Charter offers a more robust protection of rights in comparison to how the courts in the Philippines interpret Constitutional protection of rights;

“…the onus will be on the claimant to demonstrate that the difference between fundamental human rights protection given by the local law and that afforded under the Charter is inconsistent with basic Canadian values; the onus will then shift to the government to justify its involvement in the activity.

Unless it is shown that those laws or procedures are substantially inconsistent with the fundamental principles emanating from the Charter, they will not give rise to a breach of a Charter right. This is the most principled and practical way to strike an appropriate balance between effective participation by Canadian officers in fighting transnational crime and respect for fundamental human rights.”



Although the breach to the 1987 Constitution, Statutes and Criminal Procedure protecting the rights of persons arrested and under custodial investigation, was clearly established in Lumanog, the Supreme Court decided that the accused “cannot simply rely on those violations of constitutional rights during custodial investigation.” These effectively rendered Constitutional rights as subordinate to procedures, not as a supreme law in the manner how the Canadian court interprets the Canadian Charter. Therefore, since the violations to Constitutional provisions could not be invoked, it was inevitable that the self-incriminating confessions and their derivative evidence had been admitted as evidence in the criminal proceedings. The rights under the 1987 Constitution were not applied with any omnipotent effect similar to how the Canadian Charter was applied. In Lumanog, the breach to the Constitution was justified by invoking case laws that remain unchanged despite their breach to the Constitutional provisions. The author is not aware of recent rulings superseding the cases cited in Lumanog.


Now we will look through how the court considered the self-incriminatory confession of Lorenzo Delos Santos, one of the accused positively identified by witness Alejo. In his testimony, Delos Santos confessed that “Rameses, Joel, Cesar and Lenido were the ones who shot Abadilla.” He admitted that he was forced to serve as a “look out” in the murder because; firstly, Rameses threatened him that “if he would not go with them, they would kill his family,” secondly, when the group were to proceed to their target, he “was made to board Rameses’ car with a warning that if he did not join the group, they would throw a hand grenade at his family.” And “after the shooting the group left him behind and he just walked on the street before taking a taxi ride.”

As mentioned, Delos Santos was also a victim of torture but was acquitted despite his own admission that he supposedly participated by acting as a look out and having been positively identified by Alejo. The court argued that their decision in convicting the five accused was not based on the confessions of Joel De Jesus and Delos Santos, but on the positive identification by Alejo. But the fact that one of the accused that he also identified had been acquitted give rise to questions on his credibility and reliability of his testimony. By convicting Joel De Jesus, the court also effectively admitted as evidence his self-incriminating confession and derivative evidence that identified the other accused. The confessions of De Jesus and Delos Santos were never excluded in the trial despite evidence of torture and questions as to how they were obtained during custodial investigation.


In comparison, in Grant in applying exclusion of evidence within the meaning of 24 (2) of the Charter, the court applied a three point test of “balancing effect.” This test is applied when evidence is obtained in breach of the Charter and that the “police conduct was neither deliberate nor egregious”;

“(1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits.”

But in Lumanog, the court neither applied test on exclusion of evidence within the meaning of section 12(3) and section 17 of the Constitution.xx Also, the admission of one of the arresting police officers, P/Sr. Insp. Jose B. Macanas, testifying in court that they did not have an arrest warrant when they arrested Joel de Jesus, did not result neither in the dismissal of the charges on him nor  exclusion of his self-incriminating and involuntary confession:

“On cross-examination, the witness admitted they had no warrant of arrest when they went to Fairview to locate the suspects, as it was a “hot person” case ordered by their superior and requiring the immediate arrest of suspects identified by witnesses like, in this case, Joel.”

Moreover, the apex court also did not rule on the refusal of the lower court to include material evidence, a Omega gold wristwatch stolen from the victim, and the voluntary testimony of Catholic priest Fr. Roberto Reyes, that could have acquitted the five accused. His evidence and testimony challenged the testimony of Alejo. Fr. Reyes volunteered to testify in court of his personal knowledge after the real killer spoke and confessed to him that they were the ones, not the five accused, who killed the victim. But because the Supreme Court did not examine the lower court’s interpretation of its refusal to admit the voluntary confession of Fr. Reyes, it consented to its reasoning of the lower court:

“…proposed testimony could not be considered an exception to the hearsay rule, considering that:  (1) it cannot be said that the person who allegedly approached Fr. Reyes was unable to testify, as said person was simply unwilling to face in a court of law the legal consequences of whatever admissions he made to Fr. Reyes;  (2) the alleged admission was made long after trial had ended and long after the court had promulgated its decision, at which time the public and persons interested in the outcome of the case knew already what were the court’s findings and conclusions of fact.”

In comparison, in Grant the court considers both the Charter-protected rights of the person and the interest of the society in applying the test on exclusion of evidence; in Lumanog, none of these were considered in deciding either to include or exclude evidence in court. In fact, the apex court in Lumanog conjectured that the inability of the real killers to testify in court was not because he was “unable to testify” but rather “was simply unwilling to face in a court of law the legal consequences of whatever admissions he made.” Had the Supreme Court interpreted the offer of evidence as in Grant, the Constitutionally-protected rights of the accused and the interest of the society in finding the truth could have been upheld. But the court instead threatened the real killers who confessed to Fr. Reyes with legal action. This give rise to questions of Constitutional protection of rights when it convicted the five accused.



“VIZCONDE MASSACRE CASE: This case is about the gang-rape and murder of a 19-year-old woman, the murder of her 7-year-old sister and their mother on June 30, 1991 at their home in Paranaque City, Metro Manila. This is one of the most controversial and widely publicised massacre case because of the involvement of the son of a former Philippine Senator, Freddie Webb; and six others from a wealthy family background.

Webb’s son, Hubert Jeffrey, is also the brother of a television host, Pinky, in one of the largest television networks in the country. Webb’s co-accused, Antonio Lejano, is the son of a known singer and celebrity. The other accused were Artemio “Dong” Ventura, Michael A. Gatchalian, Hospicio “Pyke” Fernandez, Peter Estrada, Miguel “Ging” Rodriguez and Joey Filart. A police officer, Gerardo Biong, was also  charged for destroying the evidence at the crime scene.

The prosecution of this case only began on August 10, 1995, four years after the massacre happened when Jessica Alfaro, an informant working for the National Bureau of Investigation (NBI), told lawyer Artemio Sacaguing, an investigator  of the NBI, that “she knew someone who had the real story behind the Vizconde massacre”. When she could not produce the person, Sacaguing continued to press her saying that: “she might as well assume the role of her informant.”

Acting solely on Alfaro’s testimony, the Department of Justice (DoJ) filed charges of rape with homicide against the eight accused on August 1995. The DoJ also placed Alfaro under the Witness Protection Program (WPP) during the trial period. The NBI, a special investigating body attached to the DoJ, is the agency responsible in providing security and protection of witnesses admitted under WPP. .

On January 4, 2000, the Regional Trial Court (RTC) of Paranaque City, rendered its judgment “finding all the accused guilty as charged”, imposing a penalty of life imprisonment. When the accused appealed the decision, the Court of Appeals (CA) affirmed the judgment of conviction by the RTC. On April 2010, the Webbs’ filed an “urgent motion to acquit” when they found out that the NBI “no longer has (in their) custody of the specimen” that was taken from the body of the rape victim, Carmela Visconde.

During the trial, accused Webb made a defence of alibi claiming that he was in the United States (US) when the massacre of the Vizcondes happened. To support this, Webb presented a “Certification issued by the U.S. Immigration and Naturalization Service” (INS) of August 31, 1995 confirming”his entry into that country (US) was recorded”. But both the RTC and the CA rejected his defence ruling that his “alibi cannot stand against Alfaro’s positive identification of him as the rapist and killer”.

On December 14, 2010, the SC rendered its decision on the appeals of the accused questioning the guilty verdict by the RTC and the CA. It took the trial and appeal process of this case fifteen years. The SC acquitted all the accused reversing and dismissing the guilty verdict of the RTC and the CA.”xxi



We will now examine how the Supreme Court interpreted the rules on exclusion of evidence in  Lejano vs. People. Firstly, we will compare how the evidence–confession, material and forensic evidence–were weighed in both Lumanog and Lejano. Secondly, we will look at how the credibility of a witness, when their testimonies are inconsistent with material and forensic evidence, is evaluated. Here, I will compare the exclusion and the inclusion of evidence in Lumanog and Lejano.

In Lumanog, six days after the murder of Colonel Rolando Abadilla the police illegally arrested, detained and tortured one of the accused, Joel De Jesus. The self-incriminating confession deriving from his arbitrary arrest, detention and torture were thereafter used by the prosecution against him and other four accused he identified as perpetrators while under torture. This incident of police investigators torturing suspects also happened in the first attempt of prosecution of the accused in the Vizconde massacre. Before the accused in Lejano were prosecuted, the police had illegally arrested, detained and tortured another group of people, the Barroso “akyat bahay” gang. This was a group of robbers who break into houses. They were also charged for supposedly committing the Vizconde massacre. But the case did not progress because the lower court rejected the self-incriminating and involuntary testimonies of the accused that the police extracted from them. The entire prosecution of the case was dismissed. The apex court noted that,

“…the police had arrested some “akyat-bahay” group in Parañaque and charged them with the crime.  The police prepared the confessions of the men they apprehended and filled these up with details that the evidence of the crime scene provided.

Not surprisingly, the confessions of some members of the Barroso “akyat bahay” gang, condemned by the Makati RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession ring true by matching some of its details with the physical evidence at the crime scene.”


Here, the Supreme Court upheld the lower court’s decision in dismissing the case against the Barroso group because it was the “police (who) prepared the confession” and that the testimonies were “condemned (by the court) as fabricated by the police.” The lower court applied the Constitutional provisionxxii on exclusion of evidence, declaring as inadmissible the confessions that the police extracted from the Barroso group and its derivative evidence. But why in Lumanog the inadmissible evidence was not excluded? The only distinction between why the confession of the Barroso group was excluded by the lower court and why the self-incriminating confession of Joel de Jesus’ not excluded was the use by the Supreme Court of the terms “arrested” and “apprehended” respectively to refer to their arrest in the text of their decision. The term “arrested” was used in the Barroso group, categorically declaring the illegality of their arrest, while in Joel De Jesus the term “apprehended” was used rendering uncertainties as to the applicability of legal procedures of his arrest. The terminologies, however, though understood similar in meaning but it was clear that the application of legal procedures were uneven.

Since the apex court used the term “arrested” for the Barroso group, the application of the rules and procedure regarding arrest was clearly applicable. But in their decision, they did not review and elaborate upon the details of the arrest, detention and torture of the Barroso group. The court’s prohibition of itself from reviewing the decision of acquittal by the lower court was obviously because of case laws, also invoked in Lumanog, that “a verdict of acquittal is final.”xxiii Thus we could not possibly compare the circumstances of the arrest of the Barroso group to that of Joel De Jesus due to lack of information on the former. We could not also look into what would have been the opinion of the apex court on the arbitrary arrest and detention of the Barroso group. What is clear in Barroso group was that the lower court applied Constitutional rights of the persons from arbitrary deprivation of liberty but these were not applied by another lower court in Lumanog.


In Lejano despite the lower court having already declared the testimony of the Barroso group inadmissible as evidence, the apex court used the details of this inadmissible evidence to test the credibility of prosecution witness Jessica Alfaro, by comparing the details of her confession to the confessions extracted from the Barroso group to detect “suspicious details.” In other words, the inadmissible evidence was used as a benchmark in testing whether Alfaro was lying or not. Since however, the apex court did not give reason or justification and did not apply any test on when inadmissible evidence can be admissible, we cannot examine the court’s opinion.

In comparison to the court making use of the Barroso group’s testimony, in Lumanog the lower court rejected the testimony of a priest, who independently and voluntarily testified that the real perpetrators had spoken to him, as well as the material evidence he presented to the court–the victim’s watch–that the perpetrators had taken from the victim when they murdered him. The watch that was presented in court was the same watch stolen from the victim. The lower court, however, rejected both the priest’s testimony and the material evidence arguing that the “proposed testimony could not be considered an exception to the hearsay rule.” The lower court, nevertheless, after refusing to admit the evidence, did attached the testimony and material evidence “to the records of the case as part of the offer of proof of the defense.”

But unlike in Lejano, neither did the apex court in Lumanog admit the evidence declared inadmissible by the lower court, and nor did it use to test the credibility of the prosecution witness, Freddie Alejo. While this evidence was definitely available because it remained in the court’s records as “proof of the defense”, the apex court did not make use of them. They also did not give reason why they disregarded this proof of defense in their decision to affirm the conviction of the accused. So, why is it that in Lejano inadmissible evidence were used in testing the credibility of the prosecution witness, but in Lumanog the admissible evidence were never used by the apex court in testing the credibility of the witness. I hardly find any answer to this question reading from the court’s decision.

In Lejano, the credibility of the prosecution witness was demolished using the inadmissible evidence as benchmark of the test; in Lumanog however, the apex court defended and affirmed the credibility of Alejo against any challenge from the defense by heavily depending on his “positive identification.” The flaws in Alejo’s testimony have already been discussed earlier in this paper.


In comparison, in Grantxxiv in affirming the lower court’s reasoning to allow the inclusion of material evidence–the gun–discovered in Grant’s possession as a result of the self-incriminating confession and obtained in breach of the Charter-protected rights against arbitrary detention and right to counsel, the Supreme Court of Canada applied a test in deciding to include this evidence. The court enumerated the test as:

“When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. (para 71)”

However, neither in Lumanog nor in Lejano were these three tests applied. In Lumanog, the testimony of Alejo, whose credibility and accuracy were questioned, outweighed the Constitutional and Statutory rights of one of the accused, Joel de Jesus, whom the police arrested without arrest warrant and no reasonable grounds. His self-incriminating confession taken by way of torture and illegal procedures was used in arresting and indicting the other four accused. The court also knows full well that one of the accused in Lumanog, Lorenzo De Los Santos, whom Alejo had positively identified, was acquitted by the lower court but his acquittal did not demolished his credibility as witness. The apex court’s affirmation of the lower court’s conviction is not only due to absence of this three-point test, but also due to its disregard to the implication of its decision to the administration of justice as a whole. In Lumanog, even after the apex court convicted them with finality the unresolved questions of their innocence still lingers putting doubts on their conviction for murder. The court neither considered the Constitutionally-protected rights of the accused nor the interest of the society in balancing its decision to include or exclude evidence taken in breach of the 1987 Constitution.


It is clear in both Lumanog and Lejano that the Constitutional and Statutory provisions on automatic exclusion of inadmissible evidence were not applied equally and fairly. In a situation where the evidence was obtained as a result of a breach of the Charter, like in Grant, there was no test that the court applied either for inclusion or exclusion of evidence. In fact, in Lejano when the apex court demolished the credibility of the witness for the prosecution, Alfaro, it was obvious that had the lower court excluded her confession at the early stage of trial the prosecution would have no case to prosecute at all. Unlike Alejo, Alfaro was not even an eyewitness but rather a fabricated witness by the prosecution who “knew someone who had the real story behind the Vizconde massacre.” In the early stage of the investigation there was already a deliberate and conscious effort to fabricate evidence and witness against the accused. Upon hearing the testimony of an investigator of the conspiracy to fabricate evidence, the lower court should have examined her testimony thoroughly. The fabrication of Alfaro as witness was revealed at trial by the lower court in this transcript;

Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case?  Will you tell the Honorable Court?

x x x x

A. She told me.  Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family.  That’s what she told me, Your Honor.

x x x x

A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me.  She told me later that she could not and the man does not like to testify.

Q. All right, and what happened after that?

A. She told me, “easy lang kayo, Sir,” if I may quote, “easy lang Sir, huwag kayong…”

How was that?

A. “Easy lang, Sir.  Sir, relax lang, Sir, papapelan ko, papapelan ko na lang ‘yan.””

It is obvious here from the testimony of the police investigator, which was not challenged by witness Alfaro, that the investigation, the gathering of evidence and the testimony of Alfaro were fabricated. The question then is, why did the lower court allowed the case to be heard and the accused to be prosecuted, knowing full well that the witness herself was not an eyewitness and stranger to the accused? The investigator himself admitted that their witness was not a real witness. The fact that the court allowed Alfaro to testify and used her testimony as basis for the conviction of the accused indicates that the lower court disregarded the Constitutionally-protected rights of the accused. In Lejano, the interest of society in solving the heinous crime of massacre and rape were not grounded on protecting the repute of the administration of justice. Again, none of the three tests in Grant, in deciding whether or not to exclude the evidence in criminal trial, were applied in Lejano and Lumanog.


In Lumanog, though the apex court applied the “totality-of-circumstances test” in weighing the reliability of the witness testimony it was also questionable:

“Applying the totality-of-circumstances test, we  thus reiterate that Alejo’s out-court-identification is reliable, for reasons  that,  first, he was very near the place where Abadilla was shot and thus had a good view of the gunmen, not to mention that the two (2) lookouts directly approached him and pointed their guns at them; second, no competing event took place to draw his attention from the event; third, Alejo immediately gave his descriptions of at least two (2) of the perpetrators, while affirming he could possibly identify the others if he would see them again, and the entire happening that he witnessed; and  finally, there was no evidence that the police had supplied or even suggested to Alejo that appellants were the suspects, except for Joel de Jesus whom he refused to just pinpoint on the basis of a photograph shown to him by the police officers, insisting that he would like to see said suspect in person.”

While this test was applied in Lumanog to test the reliability of Alejo’s testimony, the same test were not applied to the testimony of Alfaro. In fact, if the “totality-of-the-circumstances” test were applied on Alfaro’s testimony, her entire testimony would have failed because she was not an eyewitness to the massacre. However, in Lumanog the court applied this test favorable to witness Alejo in testing the reliability of his testimony even though testimony could not have passed the fourth indicator of the test. This indicator was that: “no evidence that the police had supplied or even suggested to Alejo that appellants were the suspects.” The police in fact did attempt to show to Alejo the photographs of the accused. But the court gives no explanation as to why Alejo could still pass the ‘fourth test.’ Even if Alejo did refused to take a look at the photographs of the suspects that the police had asked him to see, there are clear evidence that the police did made attempts. His identification of the five accused during the identification parade was also conducted clearly in a suggestive manner. The court noted that,

“Appellants assail the out-of-court identification made by Alejo who pointed to appellant Joel de Jesus and Lorenzo delos Santos in a line-up at the police station together with police officers.  However, appellants’ claim that the police officers who joined the line-up were actually in their police uniforms at the time, as to make the identification process suggestive and hence not valid, was unsubstantiated.”[Emphasis added]

Therefore, even if Alejo refused to look at the photographs his identification of the accused during the identification parade cannot be acceptable because it was suggestive. But the court nevertheless justified Alejo’s identification in the police parade to have passed the “totality-of-the-circumstances test” and  that the irregularities in the police parade were not a form of inducement, by invoking earlier case laws:xxv

“In any case, the trial court did not rely solely on said out-of-court identification considering that Alejo also positively identified appellants during the trial. Thus, even assuming arguendo that Alejo’s out-of-court identification was tainted with irregularity, his subsequent identification in court cured any flaw that may have attended it. We have held that the inadmissibility of a police line-up identification should not necessarily foreclose the admissibility of an independent in-court identification.” [Emphasis added]

It is therefore clear that the “totality-of-the-circumstances” test as applied in Lumanog was in reality not “total”, but rather partial or subject to exception. Firstly, the “totality test” narrowly weighs the reliability of the testimony only by assessing the surrounding and physical reference as to where the witness was located at the crime scene. Secondly, the fact that the apex court upheld the acquittal of an accused that had been positively identified in Lumanog indicates that the totality test has nothing to do with the reliability of witness testimony. Thirdly, the interest of society in administration of justice was never considered in the adjudication of cases.


In Lumanog and Lejano, the disregard of the court to the interest of the society and to protect itself from perceptions of condoning unlawful actions are illustrated in;

Firstly, in Lumanog when the court refused to include the voluntary testimony of a priest and the material evidence he was offering (he appeared in court to relay the information from the real killers that it was them, and not the five accused, who killed the victim); and secondly, in Lejano, the tacit approval of the lower court to proceed with the prosecution of the accused knowing full well that the only witness was not real and fabricated by the investigators.

Secondly, in both Lumanog and Lejano, the evidence heavily relied upon by the Supreme Court are: self-incriminating confession of Joel de Jesus, the testimony of Alejo, the only witness for the prosecution; and in Lejano the testimony of Alfaro, whom the court declared as not credible. If the test of reliability is applied on “reliable” or “material evidence” as observed in Grant, these confessions could not have passed the test, being clearly inconsistent and in breach of the 1987 Constitution.

In fact, the sole basis of the apex court’s acquittal of the accused in Lejano was its rejection of Alfaro’s testimony. In comparison, affirming the conviction of the accused in Lumanogwas solely based on Alejo’s confession. In all the stages of the trial, from the lower court to the apex court, confessional evidence was heavily relied upon. This indicates that the Constitutionally-protected and fundamental rights of the accused in this or any criminal cases for that matter, can be outweighed by a testimony of one witness regardless of their credibility and the reliability of their testimonies.

Not only did the apex courts heavily relied on confessional evidence, but their application of the test in testing the  credibility and reliability of the witness in the two cases were not consistent or equally applied. In Lejano, the apex court set out two criteria for “positive identification,” but in Lumanog, these criteria below were never applied:

“Rather, to be acceptable, the positive identification must meet at least two criteria:

First, the positive identification of the offender must come from a credible witness.  She is credible who can be trusted to tell the truth, usually based on past experiences with her.  Her word has, to one who knows her, its weight in gold.

And second, the witness’ story of what she personally saw must be believable, not inherently contrived.  A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims.”


To summarize the analysis, the key points are the ‘credibility of the witness’ and the ‘consistencies of the testimony’ of the witness.

In Lumanog, the credibility of Alejo, witness for the prosecution, was upheld despite questions to his person, accuracy and impartiality of his testimony. The court did not see anything wrong with Alejo being in the custody of the Abadilla family, who has an interest in his testimony, during the trial. Court records also show that Alejo had been receiving money and benefits from the Abadillas. He was not placed under the Witness Protection Programme (WPP), a programme designed to protect witnesses managed by the Department of Justice (DoJ), as should have been legally required to ensure the impartiality of witnesses. By being under the custody of the Abadillas, not only  the safety of Alejo was at risk, but questions the credibility and impartiality of his testimony. But the court rejected questions to his credibility on the basis of his supposed “positive identification” of the five accused.

But Alejo’s “positive identification” is questionable. Apart from Alejo, there was another eyewitness, Merlito Herbas, also a security guard at the Abadillas. Like Alejo, Herbas also identified Joel de Jesus in the police parade as the attacker. It was Herbas who exposed that Alejo was receiving money from the Abadillas in exchange for testifying in court, even though the five accused were not actually the real killers. Despite the severity of this allegation, the court only noted,

“However, not having been presented by the prosecution as witness, he testified for the defense declaring that none of those whom he saw during the shooting incident was present inside the courtroom.  He produced a list of amounts he had received from Mayor Abadilla, totaling P30,000.00 in support of his claim that Mayor Abadilla did not fulfill his promise to give him exactly the same salary he was receiving as security guard (P6,000.00 monthly only instead of the P8,000.00 he used to receive as monthly pay), although he admitted having stayed for free inside the Abadilla compound from July 11, 1996 up to November 26, 1996.  He was later told that he would no longer be presented as witness because the testimony of Alejo would be sufficient.”

The apex court, nevertheless, argued that neither Herbas’ allegation of Alejo’s person as questionable nor the inconsistencies in his testimonies–like, the acquittal of one of the accused–damaged Alejo’s credibility as a witness for the prosecution. The apex court also affirmed the justification and reasoning of the lower court in doubting the credibility of Herbas in order to uphold the credibility of Alejo. It noted,

“In doubting the credibility of Herbas, the trial court stressed that Herbas was obviously disgruntled at the Abadilla family’s failure to give him the promised salary, and circumstances showed that his need for job and money colored his perception and attitude in testifying for the defense.”

However, in Lejano the court demolished the credibility of Alfaro, witness for the prosecution due to questions of her person and credibility. Although Alfaro was neither in the custody of the Vizcondes, nor receiving money from them as a witness, the inconsistencies of her testimony were sufficient for the apex court to reject her stating that she was the “worst possible choice for a witness.” Here, the court applied two factors to test the acceptability of a “positive identification” of the witness, both of which Alfaro failed: first, her credibility as a person being an informant of the NBI, and secondly, the inconsistencies in her testimony.

During the trial at the lower court, Alfaro’s ability to remember and have “fine memory for faces that had a strong effect on her” was severely questioned. The court noted,

“She named Miguel “Ging” Rodriguez as one of the culprits in the Vizconde killings.  But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaro’s Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: “How can I forget your face.  We just saw each other in a disco one month ago and you told me then that you will kill me.”  As it turned out, he was not Miguel Rodriguez, the accused in this case.”


I have already mentioned that in Lumanog and Lejano the court heavily depends on the confessions of one witness in the trial. But was there other evidence available on which the court could have tested the reliability of their confessions? Yes. In Lumanog, the police has obtained forensic evidence; in Lejano, semen sample from the body of the rape victim, challenging the accuracy of the testimony of the witness. This forensic evidence were also submitted and made available to the court for their scrutiny.

In Lumanog, there were fingerprint samples lifted from the car that the real gunmen used as their getaway vehicle after killing Abadilla. Empty bullet slugs used in the murder were also found at the crime scene. When this forensic evidence were examined, neither the fingerprint samples matched any of the five accused, nor the results of the ballistic test between the firearms supposedly confiscated from the accused match the slugs recovered at the crime scene. The slugs, however, did matched the firearms and slugs recovered from an earlier politically-motivated killing of high profile persons that were openly admitted by the same rebel group who admitted the killing of Abadilla. This is the same rebel group who confessed to a priest who voluntarily offered his testimony to the court that they were the ones, not the five accused, who murdered Abadilla because of his crimes against the Filipino people for his involvement in human rights violations during Marcos dictatorship. Nevertheless, the apex court upheld the lower court’s judgment rejecting these forensic evidence invoking that the forensic evidence were “inconclusive” and unable to prevail over the “positive identification” of witness Alejo.

While the forensic evidence in Lumanog was not given weight, the importance of forensic evidence was upheld in Lejano when the apex court gives judicial notice to it. Unlike in Lumanog, in Lejano a remaining semen sample from the corpse of the rape victim Carmela that was to be tested as evidence were lost. All other samples of forensic evidence had been earlier destroyed at the crime scene by a police officer allegedly paid by the real perpetrators to remove any traces that could identify them. Because the forensic evidence that could have determined who had raped Carmela was lost in the ‘chain of custody’xxvi it could no longer be tested. The court noted:

“On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmela’s cadaver, which specimen was then believed still under the safekeeping of the NBI.  The Court granted the request pursuant to section 4 of the Rule on DNA Evidence[6] (A.M. 06-11-5-SC effective October 15, 2007.) to give the accused and the prosecution access to scientific evidence that they might want to avail themselves of, leading to a correct decision in the case.

Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court.  The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case.”

But the fact that the apex court did allow one of the accused, Hubert Webb, to seek remedy for acquittal for the loss of the DNA sample, the importance of forensic evidence was given weight not like in Lumanog. Webb asked the court to dismiss the case arguing that it is no longer possible to determine the identity of the rapist as a result of the loss of evidence. Without which he claimed that he could not possibly prove his innocence. The court, however, rejected his proposition, arguing that he was not able to prove the presence of ‘bad faith’ on part of the government invoking a case law in the US, Arizona vs. Youngblood. Given that the court ignored the forensic evidence in Lumanog that established that the fingerprint samples of the real killers did not match to any of the five accused, it is also not clear whether even if the semen sample would not match the accused in Lejano, they would be acquitted. It is because as the court held in Lumanog, results of forensic tests are inconclusive. What is clear is that the importance of forensic evidence was not applied equally.


In a situation where the police are involved in abuse of due process, the case of HKSAR vs Lee Ming-Tee provides more prospects for remedies for the accused in the criminal process, particularly the remedy for ‘stay of proceedings’ at the early stage. Lee Ming-Teenoted the authority of the court to stay the proceedings on questions of fairness of trial:

“…The decision whether or not to bring a prosecution falls entirely within the province of the Secretary for Justice…”

“…In most such cases, the court only grants the stay because, notwithstanding the range of remedial measures available at the trial, a fair trial for the accused is found to be impossible and continuing the prosecution would amount to an abuse of process…”

In comparison, in Lumanog and Lejano no remedy for ‘stay of proceedings’ of that sort were applied. In Lumanog, the court allowed the prosecution of the case against the accused despite compelling evidence of arbitrary arrest, detention, torture and extraction of involuntary confession. The CHR has found evidence of torture and the policemen who arrested Joel De Jesus admitted they did not have arrest warrants when they arrested him.

In Lejano, the court allowed the prosecution of the case even though it was clear from the testimony of one of the police investigators that Alfaro was a fabricated witness and that her “positive identification” of a person she claimed as one of the attackers was inaccurate, destroying her credibility. Similarly, despite having established that the police investigators and the witness conspired to consciously deceive the court and to abuse the criminal process in prosecuting the accused, no remedies for stay of proceedings of any sort were applied by the court in this case either.

Neither the court nor the Department of Justice (DoJ), the prosecution arm of the government, exercised their authority and power to ensure the “fairness of trial” for the accused as the court in Hong Kong did in Lee Ming-Tee. If we apply the Lee Ming-Tee test for “exceptional” and “unusual” condition for stay of proceeding in Lumanog, it would be safe to conclude that the court could order for stay of proceedings given the strong protection of rights of the accused in the 1987 Constitution and Statutes. Unfortunately, the case shows that the rights of the accused only had remedies in theory, not in practice, unlike in Lee Ming-Tee, which had both.

Also in Lejano, the police investigator who was involved in conspiring with the witness to fabricate a case was a member of a special investigating unit, the NBI, directly under control and supervision of the Department of Justice. Thus, again if we apply the logic in Lee Ming-Tee that the “prosecution falls entirely within the province of the Secretary for Justice,” we could safely conclude that the deliberate fabrication of charges and witness by a member of the DoJ is itself sufficient enough for the DoJ to decide on its own to withdraw from prosecuting the case. Instead, the DoJ consented to and tolerated the widely publicized coverage and press conference, using the fabricated witness to implicate the accused in public before their trial in court could start. Such publicity had placed the accused on the disadvantage ignoring their rights to presumption of innocence.

Unlike in Lee Ming-Tee, wherein the publicity in press conference and publication of the investigation report was grounded in their responsibility to report to the public on how public funds were used resulting to the publication of report, in comparison in Lejano, it was the government under public pressure to solve the massacre case, showing to public that they are doing something regardless whether they were in breach of Constitutional rights undermining the interest of the society.


In Philippine courts, there is no form of remedy for ‘stay of proceedings’ in criminal process as it is in theory and practice applied in Lee Ming-Tee case. The remedy of stay of proceeding is applicable only: where there is an appeal for judgment, the stay for “execution of the judgment or final order”xxvii ; where there is a motion for reconsideration, the proceeding “shall be stayed during the pendency of the motion”xxviii ; where there is separate judgment the court “may stay its enforcement until the rendition of a subsequent judgment or judgments”xxix ; and where not all issues subject for new trial have been retried the court may “stay the enforcement of such judgment or final order until after the new trial.”xxx

In civil cases, stay of proceedings are applied where there is action for injunction–the execution of the order is executory unless ordered by the trial to stayxxxi; a judgment can also be stayed on an appealxxxii; execution of a judgment can also be stayed pending a motion for reconsiderationxxxiii; and in insolvency cases once a debtor is declared insolvent, “all civil proceedings pending against the said insolvent shall be stayed.”xxxiv

It is thus evident that the remedy for stay of proceedings is, in theory and practice, absent in the Philippines criminal process in comparison to how it is articulated in Lee Ming-Tee. The remedy for “stay of proceedings” is only intended to suspend the implementation of a court order or proceedings of the trial, not suspension of the entire criminal proceeding as a result of “abuse of process” as in the case of Hong Kong. In Philippines, the remedy available for breach to Constitutional rights is not stay of proceedings, but either dismissal of the entire case or accused questioning the evidence against them at trial.


To conclude, after comparing Lumanog and Lejano to other common law cases, there are three aspects that is clear: firstly, there were deprivation of rights and remedies resulting from the inequality in the application of Constitutional and Statutory rights; secondly, the subordination of Constitutional rights to statutory laws and criminal procedures; thirdly, background of the accused and the political context of the case.

On the first aspect, it is clear that in Philippines the 1987 Constitution and Statutory laws protecting and ensuring fundamental rights of the accused existed in form. It is cogent that it is the application of the theory and meaning of the letters and substance of the law that is problematic. The fundamental concept of rule of law that is strong in case laws in developed countries of common law jurisdiction is lacking, if not having less importance, in cases in Philippine courts. The country has robust Constitution, Statutes and with Universalists character on protection of rights, but has weak rule of law system. Here, we see that existence of good Constitution and Statutes is meaningless in a weak rule of law system.

The weakness of rule of law, amongst others, is illustrated on the second aspect. Unlike the legal and court systems in Canada and in Hong Kong which places strong emphasis on the omnipotence of the Charter and the Basic Law respectively, the 1987 Philippine Constitution has only had omnipotence on its theory, not in practice as I have already illustrated in these two cases. The Constitution did not have an effect as a supreme law that sets the norms and standards regarding protection of fundamental rights. The conviction of accused in Lumanog on questionable confession of a witness is a clear illustration that personal liberties and freedom is subordinate to and can be outweighed by an unreliable confession.

The third aspect, though not mentioned in the court’s decision, certainly has had enormous influence to the outcome of the cases. In Lumanog, most of the accused are persons from poor and families who had no influence and political connection. In fact, the lawyers who had represented them in court are from the start of the trial to the end were pro bonohuman rights lawyer. In comparison, in Lejano all of the accused were sons of wealthy and powerful politicians in the country. Here, for the latter to get remedy even though they both do suffer in detention equally has had possibilities in terms of application of Constitutional rights in comparison to the former.

As we can see, even though the legal and court system is now under the robust 1987 Constitution and its government is democratically elected; but, after 25 years of the operation of the Constitution, which was a product of the people’s revolution in 1986, the practice amongst the policemen during the dictatorial regime–illegal arrest, detention and torture and others–have not disappeared. The courts, meanwhile, has perpetuated the application of laws and jurisprudence held during the dictatorial regime to remain as valid. Their failure to ensure the protection of rights base on the intent of the Constitution has deprived the accused possibilities of protection of rights and remedies.



i    People vs. Lumanog, G. R. No. 187745; G.R. No. 185123, September 7, 2010
ii   Lejano vs. People, G.R. No. 176864, G.R. No. 176389; December 14, 2010
iii  Art. 3 of the Bill of Rights of the 1987 Philippine Constitution, did not explicitly use the term “arbitrary detention”. The Constitution deliberately did this for a reason. The term “arbitrary detention” is defined in Art 124 of the Revised Penal Code (RPC), to mean detention “without legal grounds.” However, learning from experience during Marcos regime, where laws and procedures are used to justify detention, the Constitution adopted a broader terminology of ‘deprivation of liberty’ to mean as detention not limited to question of “legal grounds” or “due process of law.”For this paper, the term ‘arbitrary detention’ is understood in the meaning of ‘deprivation of liberty’ under the 1987 Constitution”.
iv   Art. 2, Sec. 2, 1987 Philippine Constitution.
“as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”
v    Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (RA 9851) Chapter 7, Sec. 15;
(e) The rules and principles of customary international law;
(f) The judicial decisions of international courts and tribunals;
(g) Relevant and applicable international human rights instruments;
(h) Other relevant international treaties and conventions ratified or acceded to by the Republic of the Philippines; and
(i) Teachings of the most highly qualified publicists and authoritative commentaries on the foregoing sources as subsidiary means for the determination of rules of international law.
vi   Brady v. Maryland, 373 U.S. 83 (1963): “which held that the prosecution’s suppression of evidence  requested by and favorable to  an  accused  violates due process  where  the evidence is material to either guilt or punishment, irrespective of the prosecution’s good or bad faith.” See full text at
Arizona v. Youngblood, 488 U.S. 41 (1988):” “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” See full text at
vii  Republic Act (R.A. 7438), Sec. 2.
“Rights of Persons Arrested, Detained or under Custodial Investigation”, “…”custodial investigation” shall include the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the “inviting” officer for any violation of law.”
viii  Asian Human Rights Commission (AHRC), Case analysis–Supreme Court’s ruling on Vizconde and Abadilla cases are contradictory, 21 December 2010. Note: In this case analysis that the author wrote, the focus is on the merit of the conviction and acquittal. The course, however, encourages him to elaborate on analyzing rights and remedies in comparison to case laws from common law jurisdiction.
ix   R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353
x    In the text of its decision in People v. Lumanog, the SC used the term “apprehended” instead of the legally acceptable term “arrested”. The author is of the opinion that this usage was deliberate, than a simple or the random use of synonymous terms. In fact, when De Jesus was taken into police custody, it breaches the Rule 113, Sec 5 of the Revised Rules of Criminal Procedures on arrest without a warrant. Therefore, the police “apprehension” of De Jesus did not conform to the procedure. In justifying their arrest of De Jesus, the police invoked the arrest was done on ‘hot pursuit’ to mean as ‘immediately after the crime was committed.’ But the court did not thoroughly examine the circumstances to determine if it was indeed a ‘hot pursuit’. Arresting persons six days after the commission of a crime cannot fall under the category of “an offense has just been committed” under the Revised Rules of Criminal Procedure, which allows warrant less arrest.
xi   See supra note 10, Art. 3 Sec. 1 3(2) of the 1987 Philippine Constitution: “No person shall be deprived of life, liberty… without due process of law”; and “any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding”.
xii  Rule 113 Sec. 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
xiii  Sec. 9 & 10 of the Canadian Charter
xiv   See Note 7, Sec. 2 of R.A. 7438 on the meaning of “custodial investigation”
xv    Secretary for Justice v Lam Tat Ming & Another (2000) 3 HKCFAR 168 (CFA)

xvi   Commission on Human Rights (CHR) of the Philippines, “In the matter of the complaints of SP02 Cesar Fortuna et. al., for violation of their human rights in connection with their arrests and detention for the alleged assassination of Colonel Rolando Abadilla, Sr., on 13 June 1996,” 26 July  1996

“…The records also show that the suspects Cesar Fortuna, Arturo Napolitano and Joel de Jesus were apprehended on June 19, 1996, while suspects Leonardo Lumanog, Rameses de Jesus, Romeo Costibolo and Lorenzo de los Santos were arrested on June 20, 1996. That being so, they spent six (6) and five (5) days respectively in detention before the inquest and filing of whatever charge. The thirty-six (36) hours required by law to deliver a person arrested to the proper judicial authority for crimes punishable by afflictive and/or capital punishment has not been observed. Neither was there a satisfactory explanation.

It is also clear from records that except for Joel de Jesus, the suspects were not given the opportunity to avail of a lawyer of their choice while in custodial investigation. Except for suspect Augusto Santos, they were not allowed to see their families and friends until after the CHR and the media intervened.

Undoubtedly, the suspects were apprehended without a warrant issued by a judicial authority.


..Premises considered, the Commission finds prima facie evidence that respondents could have violated Republic Act No. 7438, otherwise known as the Law on Custodial Investigation, particularly on visitorial rights and the right to counsel, including the law on arbitrary detention.”

Excerpt on medical findings on Delos Santos:

“LORENZO DELOS SANTOS, 36, abrasions, contusions or arms, thighs and legs.

It should be noted, however, that the examination conducted on the suspects by Dr. Jesse Rey T. Cruel, Medico-Legal III of the CHR, was only made on June 25, 1996, several days after the arrests on June 19, 1996.”

xvii  People v. Uganap, G.R. No. 130605, June 19, 2001, 358 SCRA 674, 684
xviii People v. Court of Appeals, G.R. No. 159261, February 21, 2007, 516 SCRA 383.
xix   R v Hape, 2007 SCC 26

xx    1987 Constitution of the Philippines. Sec. 12 (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

Section 17. No person shall be compelled to be a witness against himself.

xxi   See supra note 8
xxii  See supra note 11
xxiii Cited in People v. Lumanog from People v. Dulay, G.R. No. 174775, October 11, 2007, 535 SCRA 656, 662,  citing  People v. Court of Appeals, G.R. No. 159261, February 21, 2007, 516 SCRA 383.
xxiv  See supra note 9
xxv   Citing People v. Rivera, supra, at p. 239, citing People v. Timon, G.R. Nos. 97841-42, November 12, 1997, 281 SCRA 577, 592.

xxvi  Tradio, Cirilo (1994). “Law Enforcement: Philippine Criminal Justice System”. Central Book Supply, Inc. p373-374

Chain of Custody of Physical Evidence
The number of persons who handle evidence between the time of commission of the alleged offence and the ultimate disposition of the case, should be safe kept to a minimum. Each transfer of Evidence should be receipted. The recipient of the Evidence shall be accountable for it during the time it is in his possession. He must protect it and he must record the name of the person from whom he received it and also to whom it was delivered.

Purpose of Protecting Physical Evidence
Evidence must be presented in court in the same substantial condition as it was at the time the offence was committed.
It must be protected from accidental, intentional and even from natural alterations.

The following are the purposes of protecting physical evidence:

1. Certain types of evidence, such as latent fingerprints, are so fragile in nature that in the slight act of carelessness in handling it can destroy their value and remove the possibility of obtaining from them any information which would further the investigation.

2. It is necessary that the evidence presented in court be in a condition similar to that in which it was left at the time of the offense.

xxvii  Rules of Criminal Procedure, Rule 122, Sec. 11 (c)

xxviii Id. Rule 124, Sec. 16
xxix   Procedure in the Supreme Court, Rule 36, Sec. 5
xxx    Id. Rule 37, Sec. 8
xxxi   Id. Rule 39, Sec. 4
xxxii  Id. Rule 42, Sec. 7 (b)
xxxiii Id. Rule 52, Sec. 4
xxxiv  Sect. 24, Financial Rehabilitation and Insolvency Act (FRIA) of 2010
Document Type : Paper
Document ID : AHRC-PAP-001-2012
Countries : Philippines,
Campaigns : Abadilla 5
Issues : Judicial system,