No accused can be tried and convicted by a court of law, unless he is first arraigned. This is a basic principle of due process that harks back to the ancient democracy of Greece.
This is why there is public clamor to “keep” former President Gloria Arroyo within the Philippines.
Arraignment is required by the 1987 Constitution. Our Rules of Court implement it by providing that the arraignment of an accused must be done in open court by the judge or the clerk of court; by furnishing the accused with a copy of the complaint or information, reading it in a language known to him; and asking the accused whether he pleads guilty or not guilty. The same rules provide that the accused must be present at the arraignment and must personally enter his plea.
When we view this personal appearance requirement vis-à-vis the developments in information and communications technology, we might be able to see a need to revisit our rules to make them more effective in delivering justice.
One may recall the huge expense incurred by our taxpayers, not to mention security concerns and public inconvenience, when former President Estrada was hailed from his places of detention to the Sandiganbayan to attend his arraignment and trials for the various cases filed against him. One may also recall that in November 2007, Sen. Sonny Trillanes and his group were able to stage the Peninsula Manila Hotel mutiny after they were taken out of detention to attend a court proceeding in Makati.
In the United States, where we patterned our bill of rights, several state jurisdictions use interactive video or similar technologies in criminal proceedings. The use of such technology is seen as a cost-effective alternative in providing arrestees and defendants with access to the courts. It helps eliminate delay and unnecessary expense. It minimizes danger to public safety.
For example, the state of Montana’s State Code maintains the requirement that an arraignment must be conducted in “open court.” It, however, provides that an arraignment done through the use of a two-way electronic audio-video communication is considered an arraignment in open court. Of course, there are several requirements for e-arraignment, such as that the audio-video communication must operate in such a way that the defendant and the judge can see each other simultaneously and converse with each other; that the defendant and the defendant’s counsel can communicate privately; and that the defendant and the defendant’s counsel are both physically present in the same place during the two-way electronic audio-video communication.
The state of New York’s Criminal Procedure Law provides that the court may dispense with the defendant’s physical appearance at the arraignment and conduct an electronic arraignment, provided requirements are met. The code defines “electronic arraignment” as “an arraignment in which participants, including the defendant, are not personally present in the court but are able to see and hear reproductions of the voices and images of the judges, counsels, defendants, police officers and other participants, by means of an independent audio-visual system.”
Locally, we are not lacking of rules that keep pace with information and communications technology advancements.
On July 17, 2001, the Supreme Court promulgated the Rules on Electronic Evidence (A.M. No. 01-7-01-SC), which authorizes trial—another constitutionally guaranteed right of an accused—by electronic means under certain conditions. These rules allow presentation of testimonial evidence in a criminal trial electronically under terms and conditions as may be prescribed by the trial court, including the protection of the rights of the parties and witnesses concerned.
Recently, our Supreme Court amended Sec. 12, Rule 14, of the Rules of Court by allowing electronic service of summons as a means of acquiring personal jurisdiction over foreign private juridical entities. Like the arraignment of an accused in a criminal case, acquiring personal jurisdiction over the defendant in a civil case is a basic requirement of due process.
Also, the Supreme Court’s sub-committee on Electronic Commerce had submitted the proposed Rules on Electronic Notarization to the Committee on the Revisions on the Rules of Court for further study and consideration. A key feature of the proposal is the concept of “personal appearance.” Under the traditional notarization, physical appearance of the affiant before the notary public is required. Under the proposed e-notarization rules, personal presence can be done by using appropriate technologies, such as video-conferencing equipment and other similar devices that allow parties to observe the demeanor of one another and communicate with each other. Several countries and state jurisdictions in the United States have established e-notarization systems.
Our court system can capitalize on technological developments to deliver justice to our people, without compromising the rights and liberties protected by the Constitution.
So why not consider arraignment by electronic means as part of our rules on criminal procedure?
(The author is a professor at the Ateneo de Manila University School of Law. He may be contacted at felim@accralaw.com.)