HUBERT J. P. WEBB, VS. HONORABLE RAUL E. DE LEON G.R. No.

121234, August 23, 1995 FACTS: On June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons with the crime of Rape and Homicide of Carmela N. Vizconde, her mother Estrellita NicolasVizconde, and her sister Anne Marie Jennifer in their home at Number 80 W. Vinzons, St., BF Homes Paranaque, Metro Manila on June 30, 1991. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuno to conduct the preliminary investigation. ARGUMENTS: Petitioners fault the DOJ Panel for its finding of probable cause. They assail the credibility of Jessica Alfaro as inherently weak and uncorroborated due to the inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged inconsistencies. Petitioners charge that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They also assail the prejudicial publicity that attended their preliminary investigation.

ISSUES: 1. Whether or not the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape and homicide 2. Whether or not respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them 3. Whether or not the DOJ Panel denied them their constitutional right to due process during their preliminary investigation 4. Whether or not the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the information as an accused. HELD: 1. NO. 2. NO. 3. NO. There is no merit in this contention because petitioners were given all the opportunities to be heard. 4. NO. REASONS: 1. The Court ruled that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A probable cause needs only to rest on evidence showing that more likely than not, a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. 2. The Court ruled that respondent judges did not gravely abuse their discretion. In arrest cases, there must be a probable cause that a crime has been committed and that the person to be arrested committed it. Section 6 of Rule 112 simply provides that “upon filing of an

information, the Regional Trial Court may issue a warrant for the accused. Clearly the, our laws repudiate the submission of petitioners that respondent Judges should have conducted “searching examination of witnesses” before issuing warrants of arrest against them. 3. The DOJ Panel precisely ed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. 4. Petitioner’s argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of the courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power is the right to prosecute their violators (See R.A. No. 6981 and section 9 of Rule 119 for legal basis). With regard to the inconsistencies of the sworn statements of Jessica Alfaro, the Court believes that these have been sufficiently explained and there is no showing that the inconsistencies were deliberately made to distort the truth. With regard to the petitioners’ complaint about the prejudicial publicity that attended their preliminary investigation, the Court finds nothing in the records that will prove that the tone and content of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. PANGANDAMAN v CASAR 159 SCRA 599NARVASA; April 14, 1988 FACTS

- On July 27, 1985, a shooting incident occurred in Pantao, Masiu, Lanao del Sur, which left at least five persons dead and two others wounded. What in fact transpired is still unclear. According to one version, armed men had attacked a residence in Pantao, Masiu, with both attackers and defenders suffering casualties. Another version has it that a group that was on its way to another place, Lalabuan, also in Masiu, had been ambushed- The next day, a lawyer (Atty. Batuampar) of one of the widows filed a letter-complaint with the fiscal, asking for a “full blast preliminary investigation”. The letter adverted to the possibility of innocent persons being implicated by the parties involved on both sides none of whom was, however, identified and promised that supporting affidavits would shortly be filed. Immediately the Provincial Fiscal addressed a"1st endorsement" to the respondent Judge, transmitting Atty. Batuampar's letter and requesting that "all cases that may be filed relative .. (to the incident) that happened in the afternoon of July 27,1985," be forwarded to his office, which "has first taken cognizance of said cases.- On August 10, 1985, a criminal complaint for multiple murder was filed. On the same day, respondent Judge examined personally the 3witnesses. Thereafter, the Judge approved the complaint and issued a warrant of arrest against the14 petitioners (who were named by the witnesses) and 50 "John Does.- On Aug 14, 1985, an ex-parte motion was filed by Atty. Batuampar seeking recall of the warrant of arrest and subsequent holding of a "thorough investigation" on the ground that the Judge's initial investigation had been "hasty and manifestly haphazard" with "no searching questions" having been propounded. The respondent Judge denied the motion for "lack of basis;" hence the present petition. ISSUE:

WON the respondent Judge had the power to issue the warrant of arrest without completing the entire prescribed procedure for preliminary investigation HELD YES.- What the Rule provides is that no complaint or information for an offense cognizable by the Regional Trial Court may be filed without completing that procedure. Sec. 6 of Rule 112 clearly authorizes the MTC to issue a warrant even before opening the second phase.This was equally true under the former rules, where the first phase of the investigation was expressly denominated "preliminary examination" to distinguish it from the second phase, or preliminary investigation proper - Sec 3 of rule 112 consists of 2 phases:The first phase consists of an ex-parte inquiry into the sufficiency of the complaint and the affidavits and other documents offered in support thereof. And it ends with the determination by the Judge either:(1) that there is no ground to continue with the inquiry, in which case he dismisses the complaint and transmits the order of dismissal, together with the records of the case, to the provincial fiscal; or (2)that the complaint and the supporting documents show sufficient cause to continue with the inquiry and this ushers in the second phase.- This second phase is designed to give the respondent notice of the complaint, access to the complainant's evidence and an opportunity to submit counteraffidavits and supporting documents. At this stage also, the Judge may conduct a hearing and propound to the parties and their witnesses questions on matters that, in his view, need to be clarified. The second phase concludes with the Judge rendering his resolution, either for dismissal of the complaint or holding the respondent for trial, which shall be transmitted, together with the record, to the provincial fiscal for appropriate action.- The argument, therefore, must be rejected that the respondent Judge acted with grave abuse of discretion in issuing

the warrant of arrest against petitioners without first completing the preliminary investigation in accordance with the prescribed procedure. The rule is and has always been that such issuance need only await a finding of probable cause, not the completion of the entire procedure of preliminary investigation- Also without appreciable merit is petitioners' other argument that there was scarcely time to determine probable cause against sixtyfour persons (the fourteen petitioners and fifty "Does") within a matter of hours on a Saturday when municipal trial courts are open only from 8:00 a.m. to 1:00 p.m. Nothing in the record before this Court belies or discredits those affirmations which have, besides, the benefit of the legal presumption that official duty has been regularly performed.Insofar, however, as said warrant is issued against fifty (50) "John Does" not one of whom the witnesses to the complaint could or would Identify, it is of the nature of a general warrant, one of a class of writs long proscribed as unconstitutional and once an athematized as "totally subversive of the liberty of the subject." Clearly violative of the constitutional injunction that warrants of arrest should particularly describe the person or persons to be seized, the warrant must, as regards its unidentified subjects, be voided. Dispositive Warrants against petitioners upheld; warrants against John Does denied PEOPLE VS VELOSO48 PHIL. 169 (1925) Facts: - In May, 1923, the building located at No. 124 Calle Arzobispo, City of Manila, was used by an organization known as the Parliamentary Club. Jose Ma. Veloso was at that time a member of the House of Representative of the Philippine Legislature. He was also the manager of the club.-The police of Manila had reliable information that the so-called Parliamentary Club was nothing more than a gambling house. Indeed, on May

19, 1923, J. F. Townsend, the chief of the gambling squad, had been to the club and verified this fact. As a result, on May 25, 1923, Detective Andres Geronimo of the secret service of the City of Manila, applied for, and obtained a search warrant from Judge Garduño of the municipal court. Thus provided, the police attempted to raid the Parliamentary Club a little after three in the afternoon of the date above- mentioned. They found the doors to the premises closed and barred. Accordingly, one band of police including policeman Rosacker, ascended a telephone pole, so as to enter a window of the house. Other policemen, headed by Townsend, broke in the outer door. -Once inside the Parliamentary Club, nearly fifty persons were apprehended by the police. One of them was the defendant Veloso. Veloso asked Townsend what he wanted, and the latter showed him the search warrant. Veloso read it and told Townsend that he was Representative Veloso and not John Doe, and that the police had no right to search the house. Townsend answered that Veloso was considered as John Doe. As Veloso's pocket was bulging, as if it contained gambling utensils, Townsend required Veloso to show him the evidence of the game. About five minutes was consumed in conversation between the policemen and the accused the policemen insisting on searching Veloso, and Veloso insisting in his refusal to submit to the search. -At last the patience of the officers was exhausted. So policeman Rosacker took hold of Veloso only to meet with his resistance. Veloso bit Rosacker in the right forearm, and gave him a blow in another part of the body, which injured the policeman quite severely. Through the combined efforts of Townsend and Rosacker, Veloso was finally laid down on the floor, and long sheets of paper, of reglas de monte, cards, cardboards, and chips were taken from his pockets.

-All of the persons arrested were searched and then conducted to the patrol wagons. Veloso again refused to obey and shouted offensive epithets against the police department. It was necessary for the policemen to conduct him downstairs. At the door, Veloso resisted so tenaciously that three policemen were neededto place him in the patrol wagon. -The warrant read as follows: …SEARCH WARRANT (G)

The People of the Philippine Islands, to any member of the Police Force of the City of Manila. GREETING Proof by affidavit having this day been made before me by Andres Geronimo that he has good reason to believe and does believe that John Doe has illegally in his possession in the building occupied by him and which is under his control, namely in the building numbered 124 Calle Arzobispo, City of Manila, Philippines Islands, certain devices and effects used in violation of the Gambling Law, to wit: money, cards,chips, reglas, pintas, tables and chairs and other utensils used in connection with the game commonly known as monte and that the said John Doe keeps and conceals saiddevices and effects with the illegal and criminal intention of using them in violation of the Gambling Law. Now therefore, you are hereby commanded that at any time in the day or night within ten (10) days on or after this date to make a search on the person of said John Doe and in the house situated at No. 124 Calle Arzobispo, City of Manila, Philippine Islands, in quest of the above described devices and effects and if you find the same or any part thereof, you are

commanded to bring it forthwith before me as provided for by law. Given under my hand, this 25th day of May, 1923.(Sgd.) L. GARDUÑO Judge, Municipal Court Issue: WON the search warrant and the arrest of Veloso was valid. Ruling: Yes. RD: It is provided, among other things, in the Philippine Code on Criminal Procedure that “a search warrant shall not issue except for probable cause and upon application supported by oath particularly describing the place to be searched and the person of thing to be seized.” The name and description of the accused should be inserted in the body of the warrant and where the name is unknown there must be such a description of the person accused as will enable the officer to identify him when found. A warrant for the apprehension of a person whose true name is unknown, by the name of "John Doe" or "Richard Roe," "whose other or true name in unknown," is void, without other and further descriptions of the person to be apprehended, and such warrant will not justify the officer in acting under it. Such warrant must, in addition, contain the best descriptio personae possible to be obtained of the person or persons to be apprehended, and this description must be sufficient to indicate clearly the proper person or persons upon whom the warrant is to be served; and should state his personal appearance and peculiarities, give his occupation and place of residence, and any other circumstances by means of which he can be identified. In the first place, the affidavit for the search warrant and the search warrant itself described the building to be

searched as "the building No. 124 Calle Arzobispo, City of Manila, Philippine Islands." This, without doubt, was a sufficient designation of the premises to be searched. As the search warrant stated that John Doe had gambling apparatus in his possession in the building occupied by him at No. 124 Calle Arzobispo, City of Manila, and as this John Doe was Jose Ma. Veloso, the manager of the club, the police could identify John Doe as Jose Ma. Veloso without difficulty. PANGANDAMAN VS CASAR159 SCRA 599, 611 (1988) Facts: -On July 27, 1985, a shooting incident occurred in Pantao, Masiu, Lanao del Sur, which left at least fivepersons dead and two others wounded. What in fact transpired is still unclear. -On the following day, Atty. Mangurun Batuampar, claiming to represent the widow of one of the victims, filed a lettercomplaint with the Provincial Fiscal at Marawi City, asking for a "full blast preliminary investigation" of the incident. The letter adverted to the possibility of innocent persons being implicated by the parties involved on both sides — none of whom was, however, identified — and promised that supporting affidavits would shortly be filed. Immediately the Provincial Fiscal addressed a "1stendorsement" to the respondent Judge, transmitting Atty. Batuampar's letter and requesting that " all cases that may be filed relative … (to the incident) that happened in the afternoon of July 27, 1985 ," be forwarded to his office, which " has first taken cognizance of said cases." -No case relative to the incident was, however, presented to the respondent Judge until Saturday, August10, 1985, when a criminal complaint for multiple murder was filed before him by P.C. Sgt.

Jose L. Laruan, which was docketed as Case No. 1748. On that same day, the respondent Judge " examined personally all(three) witnesses (brought by the sergeant) under oath thru … (his) closed and direct supervision ,"reducing to writing the questions to the witnesses and the latter's answers. Thereafter the Judge " approved the complaint and issued the corresponding warrant of arrest " against the fourteen (14)petitioners (who were named by the witnesses) and fifty (50) John Does. -An "ex-parte" motion for reconsideration was filed on August 14, 1985 by Atty. Batuampar (joined by Atty.Pama L. Muti), seeking recall of the warrant of arrest and subsequent holding of a "thorough investigation “on the ground that the Judge's initial investigation had been "hasty and manifestly haphazard" with "no searching questions" having been propounded. The respondent Judge denied the motion for “lack of basis”. -The petitioners contend: -that the Judge in the case at bar failed to conduct the investigation in accordance with the procedure prescribed in Section 3, Rule 112 of the Rules of Court;- that failure constituted a denial to petitioners of due process which nullified the proceedings leading to the issuance of the warrant for the petitioners' arrest; - that August 10, 1985 was a Saturday during which " Municipal Trial Courts are open from 8:00 a.m.to 1:00 p.m. only ..." and "... it would hardly have been possible for respondent Judge to determine the existence of probable cause against sixty- four (64) persons whose participations were of varying nature and degree in a matter of hours and issue the warrant of arrest in the same day"; -that there was undue haste and an omission to ask searching questions by the Judge who relied" mainly on the

supporting affidavits which were obviously prepared already when presented to him by an enlisted PC personnel as investigator."; - that the respondent Judge conducted the preliminary investigation of the charges " ... in total disregard of the Provincial Fiscal ..." who, as said respondent well knew, had already taken cognizance of the matter twelve (12) days earlier and was poised to conduct his own investigation of the same; and- that issuance of a warrant of arrest against fifty (50) "John Does" transgressed the Constitutional provision requiring that such warrants should particularly describe the persons or things to be seized. Issue: WON the warrant of arrest was null and void. More specifically stated, WON completion of the procedure laid down in Section 3 of Rule 112 a condition sine qua non for the issuance of a warrant of arrest. Ruling: The warrant complained of is upheld and declared valid insofar as it orders the arrest of the petitioners. Said warrant is voided to the extent that it is issued against fifty (50) "John Does." The respondent Judge is directed to forward to the Provincial Fiscal of Lanao del Sur the record of the preliminary investigation of the complaint in Criminal Case No. 1728 of his court for further appropriate action. RD: Sec 3 of Rule 112 of the 1985 Rules on Criminal Procedure provides the procedure in conducting a preinvestigation of any crime cognizable in the RTCs. Although not specifically declared the said provision actually mandates two phases. The first phase consists of an ex-parte inquiry into the sufficiency of the complaint and the affidavits and other documents offered in support thereof. And it ends with the determination by the Judge either:

(1) that there is no ground to continue with the inquiry, in which case he dismisses the complaint and transmits the order of dismissal, together with the records of the case, to the provincial fiscal; or (2) That the complaint and the supporting documents show sufficient cause to continue with the inquiry and this ushers in the second phase. This second phase is designed to give the respondent notice of the complaint, access to the complainant's evidence and an opportunity to submit counter-affidavits and supporting documents. At this stage also, the Judge may conduct a hearing and propound to the parties and their witnesses questions on matters that, in his view, need to be clarified. The second phase concludes with the Judge rendering his resolution, either for dismissal of the complaint or holding the respondent for trial, which shall be transmitted, together with the record, to the provincial fiscal for appropriate action. There is no requirement that the entire procedure for preliminary investigation must be completed before a warrant of arrest may be issued. The present Section 6 of the same Rule 112 clearly authorizes the municipal trial court to order the respondent's arrest:“Sec. 6. When warrant of arrest may issue.- xxx xxx xxx (b) By the Municipal Trial Court. If the municipal trial judge conducting the preliminary investigation is satisfied after an examination in writing and under oath of the complainant and his witnesses in the form of searching question and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice, he shag issue a warrant of arrest.” The argument, therefore, must be rejected that the respondent Judge acted with grave abuse of discretion in issuing

the warrant of arrest against petitioners without first completing the preliminary investigation in accordance with the prescribed procedure. The rule is and has always been that such issuance need only await a finding of probable cause, not the completion of the entire procedure of preliminary investigation. LIM, SR. VS JUDGE FELIXGR NOS. 95954-7 (FEBRUARY 19, 1991) Facts: -On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot wound. -An investigation of the incident then followed. -Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr.,Mayor Susana Lim of Masbate, Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, MayorNestor C. Lim and Mayor Antonio Kho of the crime of multiple murder and frustrated murder in connectionwith the airport incident. The case was docketed as Criminal Case No. 9211. -After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that:

“. . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary examination in searching questions and answers, concludes that a probable cause has been established for the issuance of a warrant of arrest of named accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy.” - Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations which in substance prayed that an order be issued requiring the transmittal of the initial records of the preliminary inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best enlightenment regarding the existence of a probable cause or prima facie evidence as well as the determination of the existence of guilt, pursuant to the mandatory mandate of the constitution that no warrant shall be issued unless the issuing magistrate shall have himself been personally convinced of such probable cause. - In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists a prima facie case against them in the light of documents which are recantations of some witnesses in the preliminary investigation.- It should also be noted that the Lims also presented to the respondent Judge documents of recantation of witnesses whose testimonies were used to establish a prima facie case against them.-On July 5, 1990, the respondent court issued an order denying for lack of merit the motions and manifestations and issued warrants of arrest against the accused including the petitioners herein.

The judge wrote, “In the instant cases, the preliminary investigation was conducted by the Municipal Trial Court of Masbate, Masbate which found the existence of probable cause that the offense of multiple murder was committed and that all the accused are probably guilty thereof, which was affirmed upon review by the Provincial Prosecutor who properly filed with the Regional Trial Court four separate informations for murder. Considering that both the two competent officers to whom such duty was entrusted by law have declared the existence of probable cause, each information is complete in form and substance, and there is no visible defect on its face, this Court finds it just and proper to rely on the prosecutor's certification in each information…” -Petitioners question the judgment of Judge Felix (statement immediately preceding this paragraph,italicized). ISSUE: WON a judge may issue a warrant of arrest without bail by simply relying on the prosecution's certification and recommendation that a probable cause exists. RULING: The questioned Order of respondent Judge Nemesio S. Felix of Branch 56, Regional Trial Court of Makati dated July 5, 1990 is declared NULL and VOID and SET ASIDE. RD: As held in Soliven v. Makasiar, the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be necessary documents and a report supporting the Fiscal's bare certification. All of these should be before the Judge. We cannot determine beforehand how cursory or exhaustive the Judge's

examination should be. Usually, this depends on the circumstances of each case. The Judge has to exercise sound discretion; after all, the personal determination is vested in the Judge by the Constitution. However, to be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. As mentioned in the facts (stated above), the Lims presented documents of recantations of the witnesses. Although, the general rule is that recantations are not given much weight in the determination of a case and in the granting of a new trial the respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over the records of the preliminary examination conducted earlier in the light of the evidence now presented by the concerned witnesses in view of the "political undertones" prevailing in the cases. In making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest. Indubitably, the respondent Judge (Felix) committed a grave error when he relied solely on the Prosecutor’s certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of a probable cause. MAXIMO SOLIVEN VS HON. RAMON P. MAKASIAR 167 SCRA 393 (1988) In these consolidated cases, three principal issues were raised: (1) whether

or not petitioners were denied due process when informations for libel were filed against them although the finding of the existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit. Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners’ motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal’s finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners’ contention that they have been denied the administrative remedies available under the law has lost factual support. It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counteraffidavits, he filed a “Motion to Declare Proceedings Closed,” in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counteraffidavits before the preliminary

investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counteraffidavits if he is so minded. The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. 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 nder 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. The addition of the word “personally” after the word “determined” and the deletion of the grant of authority by the 1973 Constitution to issue warrants to “other responsible officers as may be authorized by law,” has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting

documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution. It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. Anent the third issue, petitioner Beltran argues that “the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit.” He contends that if criminal proceedings ensue by virtue of the President’s filing of her complaintaffidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court’s jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. The rationale for the grant to the President of the privilege of immunity

from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder’s time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President’s behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court’s jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President’s prerogative. It is a decision that cannot be assumed and imposed by any other person. As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties. As to petitioner Beltran’s claim that to allow the libel case to proceed would produce a “chilling effect” on press freedom, the Court finds no basis at this stage to rule on the point. The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence, the

writs of certiorari and prohibition prayed for cannot issue. WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED. DORIS TERESA HO, petitioner, vs. PEOPLE OF THE PHILIPPINES 280 SCRA 365 (1997) May a judge issue a warrant of arrest solely on the basis of the report and recommendation of the investigating prosecutor, without personally determining probable cause by independently examining sufficient evidence submitted by the parties during the preliminary investigation? The Case This is the main question raised in these two consolidated petitions for certiorari under Rule 65 of the Rules of Court challenging the Sandiganbayan’s August 25, 1992 Resolution[1] which answered the said query in the affirmative. The Facts Both petitions have the same factual backdrop. On August 8, 1991, the AntiGraft League of the Philippines, represented by its chief prosecutor and investigator, Atty. Reynaldo L. Bagatsing, filed with the Office of the Ombudsman a complaint[2] against Doris Teresa Ho, Rolando S. Narciso (petitioners in G.R. Nos. 106632 and 106678, respectively), Anthony Marden, Arsenio Benjamin Santos and Leonardo Odoño. The complaint was for alleged violation of Section 3 (g) of Republic Act 3019[3] 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. After due notice, all respondents therein filed their respective counteraffidavits with supporting documents. On January 8, 1992, Graft Investigation Officer Titus P. Labrador (hereafter, “GIO Labrador”) submitted his resolution[4] with the following recommendations: “WHEREFORE, all premises considered, it is respectfully recommended that an information for violation of Section 3 (g) of R.A. 3019 as amended be filed against respondent Rolando S. Narciso before the Sandiganbayan. It is likewise recommending that the case against the other respondents be DISMISSED for insufficiency of evidence.” However, after a review of the above resolution, Special Prosecution Officer Leonardo P. Tamayo (hereafter, “SPO Tamayo”) recommended that both Rolando Narciso and Doris Teresa Ho be charged with violation of Section 3 (e) of R.A. 3019. The resolution of GIO Labrador, as modified by the memorandum[5] of SPO Tamayo, was approved by Ombudsman Conrado M. Vasquez on May 5, 1992. Thus, herein petitioners were charged accordingly before the Sandiganbayan in an information[6] filed on May 18, 1992. Attached to the information were the resolution of GIO Labrador and the memorandum of SPO Tamayo. The said information reads: “The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby accuses ROLANDO NARCISO and DORIS TERESA HO, President of National Marine Corporation, of violation of Section 3(e) of RA 3019, as amended, committed as follows:

That on or about April 4, 1989, and for sometime prior and/or subsequent thereto, in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused ROLANDO NARCISO, a public officer, 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 TERESA HO, a private individual and then the President of National Marine Corporation (NMC), a private corporation organized and operating under our Corporation law, conspiring and confederating with one another, did then and there wilfully, unlawfully and criminally, with evident bad faith and through manifest partiality, cause undue injury to the National Steel Corporation (NSC), by entering 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, 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 held on June 30, 1988, thereby giving unwarranted benefits to the National Marine Corporation, in the total sum of One Million One Hundred Sixteen Thousand Fifty Two Pesos and Seventy Five Centavos (P1,116,052.75), Philippine Currency, to the pecuniary damage and prejudice of the NSC in the aforestated sum. The said offense was committed by Rolando S. Narciso in the performance of his official functions as Vice-President of the National Steel Corporation. CONTRARY TO LAW.” Acting on the foregoing information, the Sandiganbayan issued the now questioned warrant of arrest against

Petitioners Ho and Narciso. Petitioner Ho initially questioned the issuance thereof in an “Urgent Motion to Recall Warrant of Arrest/Motion for Reconsideration” which was adopted by Petitioner Narciso. They 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. Respondent Sandiganbayan denied said motion in the challenged Resolution. It ratiocinated in this wise: “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 the reconsideration 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 be an exercise in futility.” Thus, these petitions. The Issue Petitioner Ho raises this sole issue: “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 complainant’s affidavit, respondent’s counter-affidavit, exhibits, etc.) which may have been submitted at the preliminary investigation?”[7] In his separate petition, Rolando S. Narciso adopts the foregoing and raises no other distinct issue. Petitioners Ho and Narciso similarly 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 prosecutor’s resolution.” Citing People vs. Inting,[8] petitioners insist that the judge “must have before him ‘the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents which are material in assisting the judge to make his determination.’” The Court’s Ruling The petitions are meritorious. The pertinent provision of the Constitution reads: “Section 2 [, Article III]. 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.” (Underscoring supplied.) In explaining the object and import of the aforequoted constitutional mandate, particularly the power and the authority of judges to issue warrants of arrest, the Court elucidated in Soliven vs. Makasiar[9]: “What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.”[10] [underscoring supplied] We should stress that the 1987 Constitution requires the judge to determine probable cause “personally.” The word “personally” does not appear in the corresponding provisions of our previous Constitutions. This emphasis shows the present Constitution’s intent to place a greater degree of responsibility upon trial judges than that imposed under the previous Charters. While affirming Soliven, People vs. Inting[11] elaborated on what “determination of probable cause” entails, differentiating the judge’s object or goal from that of the prosecutor’s.

“First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. “Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor’s certification of probable cause is ineffectual. It is the report, the affidavits the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor’s certification which are material in assisting the Judge to make his determination. “And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper -- whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial -- is the function of the Prosecutor.”[12] And clarifying the statement in People vs. Delgado[13] -- that the “trial court may rely on the resolution of the COMELEC to file the information, by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation, in the issuance of the warrant of arrest” -- this Court

underscored in Lim Sr. vs. Felix[14] that “[r]eliance on the COMELEC resolution or the Prosecutor’s certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation.” We added, “The warrant issues not on the strength of the certification standing alone but because of the records which sustain it.” Summing up, the Court said: “We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal’s bare certification. All of these should be before the Judge. ”The extent of the Judge’s personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge’s examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor’s certification and investigation report whenever necessary. He should call for [the] complainant and [the] witnesses themselves to answer the court’s probing questions when the circumstances of the case so require.”[15] [underscoring supplied] The above rulings in Soliven, Inting and Lim Sr. were iterated in Allado vs. Diokno[16] where we explained again what probable cause means. Probable cause for the issuance of a warrant of arrest is the existence of such facts and

circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested.[17] Hence, the judge, before issuing a warrant of arrest, “must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof.”[18] At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates such evidence in determining probable cause.[19] In Webb vs. De Leon,[20] we stressed that the judge merely determines the probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de novo hearing. He simply personally reviews the prosecutor’s initial determination finding probable cause to see if it is supported by substantial evidence. In the recent case of Roberts Jr. vs. Court of Appeals,[21] this Court’s application of the dictum laid down in Soliven -- affirmed and fortified in Inting, Lim Sr., Allado and Webb -- should lay to rest the issue raised in the instant petitions. In Roberts Jr., this Court, through Mr. Justice Hilario G. Davide, Jr., set aside the order of the respondent judge directing inter alia the issuance of warrants of arrest against the accused, reasoning that said judge did not personally determine the existence of probable cause, since he had “only the information, amended information, and Joint Resolution as bases thereof. He did not have the records or evidence supporting the prosecutor’s finding of probable cause.” In like manner, herein Respondent Sandiganbayan had only the information filed by the Office of the Ombudsman, the thirteen-page resolution of the investigating officer and the three-page memorandum of the prosecution officer,

when it issued the warrant of arrest against the petitioners. The latter two documents/reports even had dissimilar recommendations -- the first indicting only Petitioner Narciso, the second including Petitioner Ho. This alone should have prompted the public respondent to verify, in the records and other documents submitted by the parties during the preliminary investigation, whether there was sufficient evidence to sustain the Ombudsman’s action charging both petitioners with violation of Sec. 3(e) of Anti-Graft law. But in its initial justification of the issuance of the warrant, the Sandiganbayan simply said: “JUSTICE ESCAREAL: xxx xxx xxx But in this particular case we believe there is a prima facie case based on our examination of the resolution because we believe, we think the Ombudsman will not approve a resolution just like that, without evidence to back it up.”[22] In attempting to further justify its challenged action, the public respondent explained in its assailed Resolution: “In the instant case, there are attached to the information, two (2) Memorandum/Resolution (sic) emanating from the Offices of the Ombudsman and the Special Prosecutor (Pp. 4-6, 7-19, respectively, Record) which clearly and indubitably established, firstly, the conduct of a due and proper preliminary investigation, secondly, the approval by proper officials clothed with statutory authority; and thirdly, the determination and ascertainment of probable cause based on the documentary evidence submitted by the complainant (Anti-Graft League of the Philippines), foremost among which is the Contract of Affreightment entered into between National Steel Corporation (NSC), and National Marine Corporation (NMC) and the COA-NSC audit report, together with

the counter-affidavits of accused Rolando Narciso and NMC officials, among whom is accused-movant. Outlined in detail in the aforesaid Resolution of Titus P. Labrador, Graft Investigation Officer II, which was reviewed by Attys. Romeo I. Tan and Arturo Mojica, Director, Community Coordination Bureau and Assistant Ombudsman, PACPO, [respectively,] are the facts leading to the questioned transaction between NSC and NMC, together with an evaluation of the propriety and legality of the bidding process involved therein and which revealed that there were supposed noncompliance with proper bidding procedures. GIO Labrador’s findings and recommendations, extensively set out in his thirteen-page resolution, is complemented by the three-page Memorandum of Special Prosecution Officer II Leonardo P. Tamayo, both of which meticulously delved into the merits and demerits of the evidence presented by the complainant and accusedrespondents and which resulted in their respective recommendation which led the Honorable Conrado M. Vasquez to approve the recommendations of Deputy Special Prosecutor Jose de G. Ferrer and Special Prosecutor Aniano A. Desierto for the filing of the information in the case at bar. xxx xxx xxx “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 the reconsideration 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 be an exercise in futility.”[23] In light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be too repetitive, we only wish to emphasize three vital matters once more: 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.[24] 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 objectives. 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 prosecutor’s 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 prosecutor’s 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.[25] 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.[26] 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 prosecutor’s 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. True, in Webb vs. De Leon, we found that “the painstaking recital and analysis of the parties’ evidence made in the DOJ Panel Report satisfied both judges that there [was] probable cause to issue warrants of arrest against petitioners.”

This statement may have been wrongly construed by the public respondent to mean that the narration or description of portions of the evidence in the prosecutor’s report may serve as sufficient basis to make its own independent judgment. What it should bear in mind, however, is that, aside from the 26-page report of the DOJ panel, the sworn statements of three witnesses and counter-affidavits of the petitioners in Webb were also submitted to the trial court, and the latter is presumed to have reviewed these documents as well, prior to its issuance of the warrants of arrest. 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 AntiGraft League of the Philippines) or the People from which to sustain its own conclusion that probable cause exists. Clearly and ineluctably, Respondent Court’s findings of “the conduct of a due and proper preliminary investigation” and “the approval by proper officials clothed with statutory authority” are not equivalent to the independent and personal responsibility required by the Constitution and settled jurisprudence. At least some of the documentary evidence mentioned (Contract of Affreightment between National Steel Corporation and National Marine Corporation, the COA-NSC audit report, and counter-affidavits of Rolando Narciso and NMC officials), upon which the investigating officials of the Ombudsman reportedly ascertained the existence of probable cause, should have been physically present before the public respondent for its examination, to enable it to determine on its own whether there is substantial evidence to support the finding of probable cause. But it

stubbornly stood pat on its position that it had essentially complied with its responsibility. Indisputably, however, the procedure it undertook contravenes the Constitution and settled jurisprudence. Respondent Court palpably committed grave abuse of discretion in ipso facto issuing the challenged warrant of arrest on the sole basis of the prosecutor’s findings and recommendation, and without determining on its own the issue of probable cause based on evidence other than such bare findings and recommendation. WHEREFORE, the petitions are GRANTED and the assailed Resolution is SET ASIDE. The warrant issued by the Sandiganbayan (Second Division) on May 20, 1992 in Case No. 17674 for the arrest of Petitioners Doris Teresa Ho and Rolando Narciso is hereby declared NULL AND VOID.

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