When Contempt Of Court Does Not Apply
Written by Major Tom
Filed under: Law & Society
August 19, 2007
In my years as a law student, way way back into the nineties, I once imagined in my head a situation wherein a witness to a case failed to show up before the court that summoned him and got himself arrested as a result of this. The judge bellowed at him in a thundering voice about why he failed to respond to his order in the most convenient way, and thereby delaying the case that was at hand.
The man who failed to respond to the subpoena answered, “Your honor, I lived about 400 miles from the city. I couldn’t even afford to commute to the barrio market, how much more could I afford to come to the city?” And so the judge scratched his head and thought that the man got a point.
So perhaps nowadays, the law already provides that any person ordered to become a witness and who resides at least 100 kilometers away from the case venue shall not be punished with contempt or be arrested for failing to appear at the scheduled time and place for him or her to testify.
Section 10 of Rule 21 of the Revised Rules of Court states:
Exceptions. - The provisions of Sections 8 (Compelling attendance) and 9 (Contempt) shall not apply to a witness who resides more than one hundred (100) kilometers from his place of residence to the place where he is to testify by the ordinary course of travel…
So if by any chance you are called to become a witness to a particular case, remember that one could not be held in contempt or be arrested for failing to appear in court when one lives at least 100 kilometers from the case venue. In fact, the court directs that any witness who lives in a relatively distant area from the court would be given kilometrage fees or allowance for travel. The last time I read it was pegged at 100 pesos. But what does 100 pesos afford now? Could one travel from Quiapo to Makati and then back to Quiapo at a 100 pesos travel allowance? It would be so tight as an amount.
Now if the kilometrage fees have already been given, the witness would not anymore be in a position to excuse himself or herself from attending court hearings in order to testify and may already be held for contempt upon such failure.
The above discussion on the compulsion and punishment for non-response to a court order to become witness to a case is in consonance with the general provision on subpoenas where Section 1 of Rule 21 of the Revised Rules of Court provides:
Subpoena and subpoena duces tecum. - Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him any books, documents, or other things under his control, in which case it is called a subpoena duces tecum.
Is the viatory right of the witness applicable in criminal cases?
Comment by jaxius — August 19, 2007 @ 7:37 pm
To jaxius: Hi jaxius, thanks for passing by. The rules of court provides that upon tender of service, it shall be tendered the witness’ fees and kilometrage to the person to whom it is served so therefore it becomes a demandable right or privilege, conditioned of course upon the witness’ attendance to the court on the day and time specified in the subpoena. See Section 6 of the Rules of Court if you need more clarification.
Comment by Major Tom — August 19, 2007 @ 7:59 pm
Besides the 100 pesos they should at least add a Jollibee meal!
Comment by Sidney — August 19, 2007 @ 8:05 pm
To sidney: That’s a good idea and why not..ha..ha…Witnesses would surely appreciate a good piece of chicken and rice or maybe even just a burger.
Be it as it may seem, I believe that the 100 pesos allowance should have been increased by the Supreme Court considering the increase in prices nowadays, as they had even increased docket fees and other court fees by as much as 100%.
Comment by Major Tom — August 19, 2007 @ 9:45 pm
I say it’s a cheap price to testify. Not only will a witness put himself/herself in danger, he/she will have to dedicate his/her time. And all the court can afford is 100 pesos. I actually do not understand the concept of subpoena. It feels like a warrant arrest. Do witnesses have the choice to refuse a subpoena? Take the Vizconde massacre case whose witness, Jessica Alfaro was given ample protection. How grievous should a case be for a witness to get more than 100 pesos?
Comment by evi — August 20, 2007 @ 1:21 am
I don’t know if we have allowances for witnesses, probably there is, but I know serving the Jury there is a token allowances, which most turn over to their employers as they are usually paid in full while in jury sevice. My sister working as a nurse once called for jury duty and her employer paid her duration of the trial and the allowances was turned over except the food’s which are billed to the systems.
Comment by vic — August 20, 2007 @ 2:29 am
This is so interesting. And I agree, witnesses who have to travel must be paid a reasonable stipend … and well, the per diem in goverment service is 300 pesos a day, and its really so barat.
Comment by annamanila — August 20, 2007 @ 2:30 am
Its also the reason why witnesses never come out. Just imagine the lost income and the danger they have to face. The poor witness protection program also is to blame.
Take the case of Musa Dimasidsing who blew the whistle on the fraudulent elections in Maguindanao, he paid with his life. What’s worst, the COMELEC did not even lift a finger.
Comment by Schumey — August 20, 2007 @ 7:19 am
may natutunan ako dito, malalayo ang korte dito kaya sigurado na ako sa 100 pesos, hehe.
Comment by iskoo — August 20, 2007 @ 8:38 am
An old case, People vs Montejo (1967), held that the viatory right of a witness is applicable only to civil cases and not to criminal cases.
However, with the changes to the Rules of Criminal Procedure, this was expanded. It appears that the viatory right of a witness is now also applicable to witnesses for the accused (Section 12, Rule 119). The Rules balance this by requiring him to make a deposition upon motion.
However, the Rules of Criminal Procedure makes a distinction if the witness is a material witness. Either the prosecution or the defense can move to have the witness post a bond or be jailed if he refuses to do so when it appears that he will not attend the hearing when directed by the court.
In effect, when a material witness refuses to attend the hearing of a criminal case, the court can issue a warrant of arrest for him and have him jailed if he cannot post a bond to guarantee his attendance. He can remain in jail until discharged by the court or after he testifies. He will not however be cited for contempt of court by such refusal alone.
Comment by jaxius — August 20, 2007 @ 9:53 am
hahahahah oo nga naman bai! wawa naman yong tao. talaga lang ah. Php 100? okay so mahirap po yan… good luck na lang!
Comment by intsik — August 20, 2007 @ 3:17 pm
Natawa ako sa cartoon mo.
Comment by Richmond — August 20, 2007 @ 3:45 pm
buene se major tom, pero lehos pa siempre el 100 kilometers, si 99 km lang gale el casa pobre man.. hehe debe 50 pesos for the first 50 kilomters and 5.00 for each succeeding kilometer thereafter parang tricycle. lol
Comment by rudyman — August 20, 2007 @ 5:06 pm
Hi Major Tom, sometimes naman the respondent pay the clerk of court para di na magdeliver ng subpoena so they can delay the court proceedings. I know of such cases.
Comment by Rowena — August 20, 2007 @ 5:51 pm
Baka marami na ang magvolunteer to be witness lalo na pag nalaman na may allowance
100 bucks is pretty paltry though. It must cover transporation expenses and meals at a minimum. The allowance must be pegged against the cost of living index in town/province of the court jurisdiction.
Comment by bw — August 20, 2007 @ 10:34 pm
To evi: In fact it could be so similar to a warrant of arrest in the sense that generally you can’t get away from it or refuse it except for a proper excuse like residing so faraway or so sick to get out of bed. Not responding to a subpoena could mean contempt of court and is punishable by detention and fine, about 2000 pesos in amount.
Comment by Major Tom — August 20, 2007 @ 10:43 pm
To vic: That’s a good system I must say although this setup would probably discourage employers to accept jury duty for lost of labor and time and then having to pay allowances.
Comment by Major Tom — August 20, 2007 @ 10:45 pm
To annamanila: Indeed, my wife complain about this all the time when she goes on official travel. I mean can one get accomodation and then have good food on that amount? The government should have increased the rate since I think it’s been stuck at 300 bucks for nearly a decade now.
Comment by Major Tom — August 20, 2007 @ 10:48 pm
To Schumey: I guess the Witness Protection Program here is so weak and fragile like at times I’ve heard that some witnesses have feared even those who were assigned to protect them. Money talks and this might be why it is so weak.
Comment by Major Tom — August 20, 2007 @ 10:50 pm
To iskoo: Baka mas mataas na ngayon ang rates kaya medyo pwede ng mag-witness any time.
Comment by Major Tom — August 20, 2007 @ 10:52 pm
To jaxsius: That’s probably the case and it’s good. In my mind, if viatory rights could be had in civil cases then why not in criminal cases; witnesses do also travel there and not commuting freely.
Comment by Major Tom — August 20, 2007 @ 10:55 pm
To intsik: The amount is so tight nga I think. Where would 100 bucks bring you? Nowhere virtually…
Comment by Major Tom — August 20, 2007 @ 10:57 pm
To richmond: Very funny nga and pretty hilarious…
Comment by Major Tom — August 20, 2007 @ 10:59 pm
To rudyman: Amo gane, bien baho gayot el candidad. Para kumigo hende kita llega para na Vitali konese amount…
Comment by Major Tom — August 20, 2007 @ 11:02 pm
that is so small an amount. by the way, i like the cartoon. can we call that kind of witness on stand?
Comment by ipanema — August 20, 2007 @ 11:07 pm
My comment disappeared. What I said was shouldn’t a witness be given an option to make a deposition or affidavit in lieu of testifying, if he or she will experience hardship just to get to court?
Comment by Wil — August 21, 2007 @ 4:06 am
To ipanema: Entertaining as the bee may seem, I believe it would be considered as an imporper witness, there’s a term to this, I just forgot this moment. A bee could not be a competent testifier by any means so it is way out of court consideration, except of course as a specimen for proof or evidence.
Comment by Major Tom — August 21, 2007 @ 3:39 pm
To Wil: Sorry for the inconvenience. It is far from intentional I assure.
Indeed, when oral testimony couldn’t be had, sometimes courts request for written depositions from witnesses. But actual witnessing is much better mode of determining proof since as they say, the judge could observe even the demeanor of the testifier.
Comment by Major Tom — August 21, 2007 @ 3:47 pm
it should also include food money. we can’t expect impoverished witnesses to shell out money just for their food before or after the trial. i’m not sure how many hours a trial lasts but i bet it can make a witness hungry.
Comment by slim whale — August 23, 2007 @ 9:30 pm