Due Process of Law Part II: Procedural Due Process & Judicial Due Process

Last time, we talked about the basics of due process as well as substantive due process. Now, let’s continue the discussion with procedural due process.

I found this definition:
Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action.
–City of Manila v. Hon. Laguio, Jr, 2005

And I tweaked it by adding a description from Nachura’s reviewer:
Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. It serves as a restriction on actions of judicial and quasi-judicial agencies of government.

I think that’s clear enough. The “procedures” referred to in our definition are the requisites of procedural due process.

Because there are two kinds of procedural due process, judicial and administrative, let’s start with the more popular Judicial Due Process.

Just a short difference between the two: Judicial due process refers to the procedures/proceedings in the courts, and administrative due process refers to procedures/proceedings in administrative bodies like the Civil Service Commission, COMELEC, NLRC, etc.

These requisites are from Nachura’s reviewer and were first mentioned in a 1918 case (El Banco Español-Filipino v. Palanca):
1. an impartial court or tribunal clothed with judicial power to hear and determine the matter before it
2. jurisdiction lawfully acquired over the person of the defendant and over the property which is the subject matter of the proceeding;
3. an opportunity to be heard afforded to the defendant; and
4. judgment rendered upon lawful hearing.

Let’s discuss these requisites one by one:

1. An impartial court or tribunal clothed with judicial power to hear and determine the matter before it

Fun fact, the requisites in the 1918 case did not have the word “impartial” in the first requisite. The current version of the first requisite with the word “impartial” can be seen in People v. CA, Hon. Espina, 1996.

The importance of impartiality was explained in Javier v. COMELEC (1986):

This Court has repeatedly and consistently demanded “the cold neutrality of an impartial judge” as the indispensable imperative of due process. To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect.

Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extrajudicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The Judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law.

Before I simplify this poetic passage, just a little trivia first. This case is about the hero of Antique Evelio Javier who lost an election for assemblyman against Pacificador. Evelio protested the results, and the case eventually reached the Supreme Court. In normal cases, it should have been dismissed because Evelio Javier was murdered by Pacificador during the pendency of the case and the elected position of Batasang Pambansa assemblyman was abolished.

But, the Supreme Court will not allow the dismissal because they want to give justice to a fallen hero (Javier’s death was one of the causes that sparked People Power). Plus, Marcos was already overthrown so the justices are feeling more liberal. This case always gives me goosebumps, and it’s penned by none other than my favorite Justice Isagani Cruz. Here is a wonderful excerpt:

Since this case began in 1984, many significant developments have taken place, not the least significant of which was the February revolution of “people power” that dislodged the past regime and ended well nigh twenty years of travail for this captive nation. The petitioner is gone, felled by a hail of bullets sprayed with deadly purpose by assassins whose motive is yet to be disclosed. The private respondent has disappeared with the “pomp of power” he had before enjoyed. Even the Batasang Pambansa itself has been abolished, “an iniquitous vestige of the previous regime” discontinued by the Freedom Constitution. It is so easy now, as has been suggested not without reason, to send the records of this case to the archives and say the case is finished and the book is closed.

But not yet.

Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all-exacting obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, “swifter than eagles and stronger than lions.”

Alright. Enough sentiments. Going back to impartiality, it means that the court or tribunal must not be biased. This is further enhanced by the requirement that they should also appear to be impartial as an added assurance to the parties that the decision will be just.

In the Evelio Javier case, the COMELEC was ruled to not have followed procedural due process:
“Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case, denying he was biased.”

Here, we can see that the reason was that Commissioner Opinion did not inhibit (in non-legal terms: excuse or disqualify) himself despite his close ties to the respondent (Evelio Javier’s opponent, Assemblyman Pacificador) as they were form law partners. Commissioner Opinion even objected to the transfer of the case to another division. Thus, this display of impartiality constitutes a denial of procedural due process.

There are many more cases that dwell on this impartiality requirement in procedural due process, but we’ll leave the details out. Else, we’ll be writing a whole book.

Here are some principles out of those cases (courtesy of Nachura’s book):
1. There is impartiality if the judge overzealously (passionately) cross-examined the party himself, assuming the role of magistrate (judge) and advocate (lawyer)

2. BUT, the judge is allowed to intensively question witnesses as long as it is necessary, for clarificatory purposes, or for ascertaining the veracity of the witness’ statements (fancy legal phrasing for “making sure that the witness is not lying”)

3. The officer who reviews a case on appeal should not be the same person whose decision is under review

On to the next requisite.

2. Jurisdiction lawfully acquired over the person of the defendant and over the property which is the subject matter of the proceeding

Jurisdiction is the power to exercise authority over persons and things within a territory. In a legal sense, it gives a court the power to hear and decide a case or lawsuit.

To give an analogy, let’s say you are a student enrolled in Math 17. But then, without realizing it, you were actually attending class in Math 100. You worked hard and finished the course. At the end of the semester, you went to the school website to check your grades. You’re expecting a grade of A because you had high scores in exams. Lo and behold, your teacher realized you were not enrolled in the course. This means that your teacher cannot give you a grade. 😦

That power to give grades is jurisdiction, and to acquire jurisdiction in our analogy is to enroll in the teacher’s course. Of course, the teacher is the judge.

In law, the “enrollment” is equivalent to either filing a complaint, service of summons, voluntary submission, or by the coercive power of legal process exerted over their person. This discussion is better reserved for Remedial Law.

The important point here is:
no jurisdiction = no valid judgment; no valid deprivation of life, liberty, or property

3. An opportunity to be heard afforded to the defendant

I’m assuming this concept is fairly easy to understand as it is at the core of due process. Simply put, it’s not fair for the state to take away someone’s life, liberty, or property when that someone is not given a chance to defend himself and rebut the claims and accusations against him.

Just a few principles on this:

A decision rendered without a hearing is null and void ab initio (from the beginning) and may be attacked directly or collaterally.
–David v. Aquilizan, 1979

Notice and hearing are not required in the evaluation stage of the extradition protest. (Otherwise, the person that may be extradited will just escape before he can be captured).
–Secretary of Justice v. Judge Lantion, 2000

Due process is not denied if the person was not heard because he chooses not to or is neglectful.
-A lot of cases and common sense

The right of a party to cross-examine the witness against him is an indispensable part of due process.
–Ortigas v. Lufthansa, 1975

The filing of a motion for reconsideration cures the defect of absence of a hearing.
–Chua v. Court of Appeals, 1998

There are cases where there is still due process even without the opportunity to be heard. One of them is:

Cancellation of a Passport:
“The Secretary of Foreign Affairs, in the exercise of his discretion to revoke a passport already issued, cannot be held to have acted whimsically or capriciously in withdrawing and cancelling such passport. Due process does not necessarily mean or require a hearing. When discretion is exercised by an officer vested with it upon are undisputed fact, such as the filing of a serious criminal charge against the passport holder hearing may be dispensed with by such officer as a prerequisite to the cancellation of his passport.”
–Suntay v. People, 1957

We’ll discuss the others in Administrative Due Process. Come to think of it, I think cancellation of a passport is part of administrative due process. But, I’ll let it stay here because it’s a prerequisite to a criminal charge which is judicial.

4. Judgment rendered upon lawful hearing

Judgment is necessary. Otherwise, the opportunity to be heard or the right to a hearing would be useless. In our Math Course analogy earlier, attending the class and taking the exams constitute the lawful hearing, and your final grade constitutes the judgment. Why attend a class when you can’t have a grade?

This is related to Sec. 14, Art. VIII (Judicial Department) of the Constitution:
“No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.”

My eyes are still adjusting to my new glasses so I’ll guess I’ll have to continue with Administrative Due Process tomorrow. I’m so behind schedule lol. Oh well. Laban lang.