‘Why am I being subpoenaed?’

posted October 30, 2020 at 12:10 am
by  Tranquil G.S. Salvador III
"I have heard of some people losing sleep and getting agitated because of this."


Receiving a subpoena is a bit unsettling for a layman. It creates a feeling of fear and anxiety that he or she may have violated the law. I have heard of some people losing sleep and getting agitated in anticipation of his or her appearance in a hearing or investigation after receiving a subpoena. To overcome this feeling, it is important to understand the true significance of a subpoena.

Subpoena is a writ issued under the authority of a court to compel the appearance of a witness at a judicial proceeding, and the disobedience of which may be punishable by contempt of court (Barron’s Law Dictionary). The Philippine Rule on Subpoena is found in Rule 21 of the Rules of Court. There are two kinds of subpoena: (a) subpoena ad testificandum, and (b) subpoena duces tecum (Section 1, Rule 21, Rules of Court).

For a subpoena ad testificandum, the person will have to attend and testify at the hearing, the trial of an action, an investigation conducted by a competent authority, or for the taking of his deposition (Section 1, Rule 21, Rules of Court). According to the Webster Dictionary, to testify means to make a statement based on personal knowledge, and to have personal knowledge is to be able to perceive (events, circumstances or occurrences) and perceiving can make known his perception to another (Section 21, Rule 130, Rules of Evidence, amended).

In some cases, the courts or investigation agencies may require the person subpoenaed to bring with him books, documents, or other things under his control, in which case it is called a subpoena duces tecum (Section 1, Rule 21, Rules of Court). To be clearer, aside from the court, the Office of the the Prosecutor, Office of the Ombudsman, National Bureau of Investigation, House of Representatives, and the Senate of the Philippines, among others, can issue a subpoena.

In the Office of the Prosecutor, the assistant or investigating prosecutor to whom the complaint is assigned shall either dismiss the complaint if he finds that there are no grounds to continue with the investigation, or issue a subpoena to the respondent (the person complained of) attaching to it a copy of the complaint and its supporting affidavit and document (Section 3 (b), Rule 112, Rules of Criminal Procedure).

The purpose of the subpoena in this instance is to require the respondent to file his counter-affidavit within ten days from receipt of the subpoena and the complaint (Section 3 (c), Rule 112, Rules of Criminal Procedure). If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavit, the investigating prosecutor shall resolve the complaint (Section 3 (d), Rule 112, Rules of Criminal Procedure) to determine whether there is probable cause to hold respondent for trial (Section 3 (f), Rule 112, Rules of Criminal Procedure).

For criminal cases filed before the Office of the Ombudsman, the procedure to be followed for preliminary investigation is the same as in Section 3, Rule 112 of the Rules of Criminal Procedure (Section 4, Rule II, Administrative Order No. 07, Rules of Procedure of the Office of the Ombudsman). However, the Office of the Ombudsman issues an Order instead of a subpoena to require the respondent to file his or her counter-affidavit (Section 4 (b), Rule II, Administrative Order No. 07).

For administrative cases filed in the Office of the Ombudsman against all elective and appointive officials of the government and its subdivisions, instrumentalities and agencies (Section 2, Rule III, Administrative Order No. 07) which by nature are non-litigious (Section 5 (c), Rule III, Administrative Order No. 07) the parties shall be allowed the right of production of evidence through the compulsory process of a subpoena and subpoena duces tecum (Section 5 (f), Rule III, Administrative Order No. 07). This is to satisfy the administrative requirement of due process, which is, giving notice and opportunity for the respondent (public employee or officer complained of) to be heard.

A subpoena that produces a chilling effect is the one issued by the National Bureau of Investigation (NBI) because it is the national clearing house of all criminal records (Section 4(c), Republic Act 10867). It is important to know that not all crimes or offenses are within the primary jurisdiction of the NBI. Only those crimes enumerated in Section 5 of Republic Act 10867 are cognizable by the NBI; and these are: Human Trafficking; Extrajudicial/Extra-legal killings against media practitioners and activists; killings of justices and judges; violations of the Cybercrime Prevention Act; cases referred by the Inter-Agency Anti-Graft Coordinating Council; violations of the Anti-Dummy Law; and threats against the life of the President, Vice President, Senate President, Speaker of the House of Representatives, and the Chief Justice of the Supreme Court .

Also included in NBI’s jurisdiction are transnational crimes; identification of the victims of mass fatality incidents caused by natural disaster; and violations of commercial, economic, and financial laws or otherwise known as white collar crimes (Section 5, Republic Act 10867). Further, the President or the Secretary of Justice may direct the NBI to undertake the investigation of any crime when public interest so requires (Section 5, Republic Act 10867). For those enumerated crimes, the NBI can issue subpoenas to investigate and require procurement of documents. However, the NBI has no jurisdiction nor subpoena powers in the ordinary crimes like Estafa, BP No. 22, Theft, Robbery, Physical Injuries, Homicide, Bigamy, Adultery, and Concubinage.

The House of Representatives and the Senate of the Philippines have the power to issue subpoena and subpoena duces tecum in “investigation or inquiry in aid of legislation” (Section 8 of the House of Representatives and Section 17 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation). This investigation refers to the re-examination of any law, or of anything in connection to any proposed legislation; or the revision or formulation of new legislative policies (Section 1 of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation)

To some, “investigations in aid of legislation” are a source of entertainment when witnesses are questioned, examined and grilled on national television or on live streaming. Others may surmise that if these witnesses are publicly embarrassed or smeared, they are liable. The results of the “investigations in aid of legislation,” whether in the House of Representatives or the Senate, will not make findings of liabilities nor impositions of penalties but will be one of the bases to initiate criminal, civil or administrative cases against those who may have violated existing laws.

A subpoena is not something to be afraid of, especially if there is nothing to hide; since the quest for truth is the very foundation of justice. All that the witness will have to do is to testify about the facts that he or she has personal knowledge of and which are derived from his or her perception (Section 22, Rule 130, Rules on Evidence, as amended). Let us keep in mind the disputable presumption that says “evidence willfully suppressed would be adverse if produced” (Section 3, Rule 131, Rules on Evidence, as amended).   

Topics: Tranquil G.S. Salvador III , subpoena
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