When custody of the law is not required

When custody of the law is not required "Can an accused of a criminal case file before the court something that would question the legality of the warrant of arrest and/or request to fix the amount of bail even before the accused is actually arrested?MarcDear Marc,Yes. There is a difference between an application for bail, which requires the prior custody of the accused, and a motion to quash the warrant of arrest and to fix bail, which does not require prior custody of the law.To elucidate this contrast, allow me to lead your attention to a decision of the Supreme Court in Pimentel vs. People (GR 220913, Feb. 4, 2019), ponencia of Chief Justice Diosdado Peralta, which clarified the difference between an application for bail and a motion to fix bail in relation to custody of the law, viz: ""In the instant case, there is no dispute that petitioners were at large when they filed, through counsel, their Omnibus Motion Ex-Abundante Ad Cautelam wherein they asked the court to quash the warrant of arrest and fix the amount of the bail bond for their provisional release pending trial. However, albeit, at large, it must be clarified that petitioners' Omnibus Motion Ex-Abundante Ad Cautelam (to Quash Warrant of Arrest and to Fix Bail) is not an application for bail. This is where the instant case begs to differ because what petitioners filed was an Omnibus Motion Ex-Abundante Ad Cautelam (to Quash Warrant of Arrest and to Fix Bail). They were neither applying for bail, nor were they posting bail.""The subject Omnibus Motion Ex-Abundante Ad Cautelam (to Quash Warrant of Arrest and to Fix Bail) is distinct and separate from an application for bail where custody of law is required. A motion to quash is a consequence of the fact that it is the very legality of the court process forcing the submission of the person of the accused that it is the very issue. Its prayer is precisely for the avoidance of the jurisdiction of the court which is also as an exception to the rule that filing pleadings seeking affirmative relief constitutes voluntary appearance, and the consequent submission of one›s person to the jurisdiction of the court. ""Thus, in filing the subject Omnibus Motion Ex-Abundante Ad Cautelam (to Quash Warrant of Arrest and to Fix Bail), petitioners are questioning the court's jurisdiction with precaution and praying that the court fix the amount of bail because they believed that their right to bail is a matter of right, by operation of law. They are not applying for bail, therefore, custody of the law, or personal appearance is not required. To emphasize, custody of the law is required before the court can act upon the application for bail but it is not required for the adjudication of other reliefs sought by the accused, as in the instant omnibus motion to quash warrant of arrest and to fix bail.""Indeed, in criminal cases, jurisdiction over the person of the accused is deemed waived by the accused when he files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court by impugning such jurisdiction over his person. However, in narrow cases involving special appearances, an accused can invoke the processes of the court even though there is neither jurisdiction over the person nor custody of the law. Nevertheless, if a person invoking the special jurisdiction of the court applies for bail, he must first submit himself to the custody of the law. xxx, ""To recapitulate, in the instant case, petitioners filed an Omnibus Motion Ex-Abundante Ad Cautelam (to Quash Warrant of Arrest and to Fix Bail) wherein it is not required that petitioners be in the custody of the law, because the same is not an application for bail where custody of the law is required. Moreover, to reiterate, when bail is a matter of right, the fixing of bail is ministerial on the part of the trial judge even without the appearance of the accused. They must be admitted to bail as they are entitled to it as a matter of right. However, it must be further clarified that after the amount of bail has been fixed, petitioners, when posting the required bail, must be in the custody of the law. They must make their personal appearance in the posting of bail. It must be emphasized that bail, whether a matter of right or of discretion, cannot be posted before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary surrender, or personal appearance. This is so because if we allow the granting of bail to persons not in the custody of the law, it is foreseeable that many persons who can afford the bail will remain at large, and could elude being held to answer for the commission of the offense if ever he is proven guilty. Furthermore, the continued absence of the accused can be taken against him since flight is indicative of guilt."" (Emphasis and Underscoring Supplied)Applying the cited jurisprudence, it is clear that an accused may file a motion to the court to fix the amount of bail even before his or her arrest. Nonetheless, once the amount of bail has been fixed, for purposes of applying for bail, such accused must already be in the custody of the law. We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.Editor's note: Dear PAO is a daily column of the Public Attorney's Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net" - https://www.affordablecebu.com/