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Ho vs. Narciso [G.R. No.

106632, October 9, 1997]


On August 8, 1991, the Anti-Graft League of the Philippines, represented by its chief
prosecutor Atty. Reynaldo L. Bagatsing, filed with the Office of the Ombudsman a complaint
against Doris Teresa Ho, Rolando S. Narciso (petitioners in G.R. Nos. 106632 and
106678,respectively), Anthony Marden, Arsenio Benjamin Santos and Leonardo Odoo. The
complaint was for alleged violation of Section 3 (g) of Republic Act 3019 prohibiting a public
officer from entering into any contract or transaction on behalf of the government if it is
manifestly and grossly disadvantageous to the latter, whether or not the public officer profited or
will profit thereby.

According to the information, Rolando Narciso, being then the Vice-President of the
National Steel Corporation (NSC), a government-owned or controlled corporation organized and
operating under the Philippine laws, and Doris Ho, the President of National Marine Corporation
(NMC), a private corporation organized and operating under our Corporation law, was said to
have entered without legal justification into a negotiated contract of affreightment
disadvantageous to the NSC for the haulage of its products at the rate of P129.50/MT, from
Iligan City to Manila. Such contract was entered into despite their full knowledge that the rate
they have agreed upon was much higher than those offered by the Loadstar Shipping Company,
Inc. (LSCI) and Premier Shipping Lines, Inc. (PSLI), in the amounts of P109.56 and P123.00 per
Metric Ton, respectively, in the public bidding, thereby giving unwarranted benefits to the
National Marine Corporation.

Ho and Narciso alleged that the Sandiganbayan, in determining probable cause for the
issuance of the warrant for their arrest, merely relied on the information and the resolution
attached thereto, filed by the Ombudsman without other supporting evidence, in violation of the
requirements of Section 2, Article III of the Constitution, and settled jurisprudence. They contend
that a judge, in personally determining the existence of probable cause, must have before him
sufficient evidence submitted by the parties, other than the information filed by the investigating
prosecutor, to support his conclusion and justify the issuance of an arrest warrant. Such evidence
should not be merely described in a prosecutors resolution.

Sandiganbayans Denial: Considering, therefore, that this Court did not rely solely on
the certification appearing in the information in this case in the determination of whether
probable cause exists to justify the issuance of the warrant of arrest but also on the basis
predominantly shown by the facts and evidence appearing in the resolution/memorandum of
responsible investigators/ prosecutors, then the recall of the warrant of arrest, or there
consideration sought for, cannot be granted. More so, when the information, as filed, clearly
shows that it is sufficient in form and substance based on the facts and evidence adduced by both
parties during the preliminary investigation. To require this Court to have the entire record of the
preliminary investigation to be produced before it, including the evidence submitted by the
complainant and the accused-respondents, would appear to been exercise in futility.


May a judge determine probable cause and issue a warrant of arrest solely on the basis of
the resolution of the prosecutor (in the instant case, the Office of the Special Prosecutor of the
Ombudsman) who conducted the preliminary investigation, without having before him any of the
evidence (such as complainants affidavit, respondents counter-affidavit, exhibits, etc.) which
may have been submitted at the preliminary investigation?


NO. Art III Section 2, 1987 Constitution : The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce and particularly
describing the place to be searched and the persons or things to be seized. (Art III Section 2,
1987 Constitution)

The word personally does not appear in the corresponding provisions of our previous
Constitutions. This emphasis shows the present Constitutions intent to place a greater degree of
responsibility upon trial judges than that imposed under the previous Charters.

The Court, in this case, reiterated and elaborated on the doctrine laid down in People vs.
Inting and ruled that

First , as held in Inting, the determination of probable cause by the prosecutor is for
a purpose different from that which is to be made by the judge. Whether there is
reasonable ground to believe that the accused is guilty of the offense charged and
should be held for trial is what the prosecutor passes upon. The judge, on the other
hand, determines whether a warrant of arrest should be issued against the accused, i.e.
whether there is a necessity for placing him under immediate custody in order not to
frustrate the ends of justice. Thus, even if both should base their findings on one and
the same proceeding or evidence, there should be no confusion as to their distinct
Second, since their objectives are different, the judge cannot rely solely on the report
of the prosecutor in finding probable cause to justify the issuance of a warrant of
arrest. Obviously and understandably, the contents of the prosecutors report will
support his own conclusion that there is reason to charge the accused of an offense
and hold him for trial. However, the judge must decide independently. Hence, he must
have supporting evidence, other than the prosecutors bare report, upon which to
legally sustain his own findings on the existence (or nonexistence) of probable cause
to issue an arrest order. This responsibility of determining personally and
independently the existence or nonexistence of probable cause is lodged in him by no
less than the most basic law of the land. Parenthetically, the prosecutor could ease the
burden of the judge and speed up the litigation process by forwarding to the latter not
only the information and his bare resolution finding probable cause, but also so much
of the records and the evidence on hand as to enable His Honor to make his personal
and separate judicial finding on whether to issue a warrant of arrest
Lastly, it is not required that the complete or entire records of the case during the
preliminary investigation be submitted to and examined by the judge. We do not
intend to unduly burden trial courts by obliging them to examine the complete records
of every case all the time simply for the purpose of ordering the arrest of an accused.
What is required, rather, is that the judge must have sufficient supporting documents
(such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or
transcripts of stenographic notes, if any) upon which to make his independent
judgment or, at the very least, upon which to verify the findings of the prosecutor as
to the existence of probable cause. The point is: he cannot rely solely and entirely on
the prosecutors recommendation, as Respondent Court did in this case. Although the
prosecutor enjoys the legal presumption of regularity in the performance of his
official duties and functions, which in turn gives his report the presumption of
accuracy, the Constitution, we repeat, commands the judge to personally determine
probable cause in the issuance of warrants of arrest. This Court has consistently held
that a judge fails in his bounden duty if he relies merely on the certification or the
report of the investigating officer.

IN THE INSTANT CASE, the public respondent relied fully and completely upon the
resolution of the graft investigation officer and the memorandum of the reviewing prosecutor,
attached to the information filed before it, and its conjecture that the Ombudsman would not
have approved their recommendation without supporting evidence. It had no other documents
from either the complainant (the Anti-Graft League of the Philippines) or the People from which
to sustain its own conclusion that probable cause exists. Respondent Court palpably committed
grave abuse of discretion in ipso facto issuing the challenged warrant of arrest on the sole basis
of the prosecutors findings and recommendation, and without determining on its own the issue
of probable cause based on evidence other than such bare findings and recommendation.