ROBERTS V CA

Several thousand holders[6] of “349” Pepsi crowns in connection with the Pepsi Cola Products Phils., Inc.’s (PEPSI’s) Number Fever Promotion[7] filed with the Office of the City Prosecutor of Quezon City complaints against the petitioners in their respective capacities as Presidents or Chief Executive Officers, Chairman of the Board, Vice-Chairman of the Board, and Directors of PEPSI, and also against other officials of PEPSI. The complaints respectively accuse the petitioners and the other PEPSI officials of the following crimes: (a) estafa; (b) violation of R.A. No. 7394, otherwise known as the Consumer Act of the Philippines; (c) violation of E.O. No. 913;[8]and (d) violation of Act No. 2333, entitled “An Act Relative to Untrue, Deceptive and Misleading Advertisements,” as amended by Act No. 3740.[9]

After appropriate proceedings, the investigating prosecutor, Ramon M. Gerona, released on 23 March 1993 a Joint Resolution[10] where he recommended the filing of an information against the petitioners and others for the violation of Article 3 18 of the Revised Penal Code and the dismissal of the complaints for the violation of Article 315, 2(d) of the Revised Penal Code; R.A. No. 7394; Act No. 2333, as amended by Act No. 3740; and E.O. No. 913.

On 6 April 1993, City Prosecutor Candido V. Rivera approved the recommendation with the modification that Rosemarie Vera, Quintin Gomez, Jr., and Chito Gonzales be excluded from the charge on the ground of insufficiency of evidence.[12]

The information for estafa attached to the Joint Resolution was approved (on 7 April 1993) by Ismael P. Casabar, Chief of the Prosecution Division, upon authority of the City Prosecutor of Quezon City, and was filed with the RTC of Quezon City on 12 April 1993. It was docketed as Criminal Case No. Q-93-43198.

In the morning of 27 April 1993, private prosecutor Julio Contreras filed an Ex-Parte Motion for Issuance of Warrants of Arrest.[19]

In the afternoon of that same day, petitioner Paul Roberts, Jr., filed a Supplemental Urgent Motion to hold in Abeyance Issuance of Warrant of Arrest and to Suspend Proceedings.[20] He stressed that the DOJ had taken cognizance of the Petition for Review by directing the City Prosecutor to elevate the records of I.S. No. P-4401 and its related cases and asserted that the petition for review was an essential part of the petitioners’ right to a preliminary investigation.

The next day, respondent Judge Asuncion, Presiding Judge of Branch 104 of the RTC of Quezon City, issued an order advising the parties that his court would “be guided by the doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462 and not by the resolution of the Department of Justice on the petition for review undertaken by the accused.”[21]

On 30 April 1993, Assistant City Prosecutor Tirso M. Gavero filed with the trial court a Motion to Defer Arraignment wherein he also prayed that “further proceedings be held in abeyance pending final disposition by the Department of Justice.”[22]

On 4 May 1993, Gavero filed an Amended Information,[23] accompanied by a corresponding motion[24] to admit it. The amendments merely consist in the statement that the complainants therein were only “among others” who were defrauded by the accused and that the damage or prejudice caused amounted “to several billions of pesos, representing the amounts due them from their winning ‘349’ crowns/caps.” The trial court admitted the amended information on the same date.[25]

Later, the attorneys for the different private complainants filed, respectively, an Opposition to Motion to Defer Arraignment,[26] and Objection and Opposition to Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrants of Arrest.[27]

On 14 May 1993, the petitioners filed a Memorandum in support of their Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of the Warrants of Arrest.[28]

On 17 May 1993, respondent Judge Asuncion issued the challenged order (1) denying the petitioners’ Motion to Suspend Proceedings and to Hold In Abeyance Issuance of Warrants of Arrest and the public prosecutor’s

Motion to Defer Arraignment and (2) directing the issuance of the warrants of arrest “after 21 June 1993” and setting the arraignment on 28 June 1993.

IV

Section 2, Article III of the present Constitution provides that 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.

Under existing laws, warrants of arrest may be issued (1) by the Metropolitan Trial Courts (MeTCs) except those in the National Capital Region, Municipal Trial Courts (MTCs), and Municipal Circuit Trial Courts (MCTCs) in cases falling within their exclusive original jurisdiction; [59] in cases covered by the rule on summary procedure where the accused fails to appear when required;[60] and in cases filed with them which are cognizable by the Regional Trial Courts (RTCs);[61] and (2) by the Metropolitan Trial Courts in the National Capital Region (MeTCs-NCR) and the RTCs in cases filed with them after appropriate preliminary investigations conducted by officers authorized to do so other than judges of MeTCs, MTCs and MCTCs. [62]

As to the first, a warrant can issue only if the judge is satisfied after an examination in writing and under oath of the complainant and the witnesses, in the form of searching questions 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.

As to the second, this Court held in Soliven vs. Makasiar[63] that the judge is not required to personally examine the complainant and the witnesses, but

[f]ollowing established doctrine and procedure, he shall: (1) personally evaluate the report and 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. [64]

Sound policy supports 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.” It must be emphasized that judges must not rely solely on the report or resolution of the fiscal (now prosecutor); they must evaluate the report and the supporting documents. In this sense, the aforementioned requirement has modified paragraph 4(a) of Circular No. 12 issued by this Court on 30 June 1987 prescribing the Guidelines on Issuance of Warrants of Arrest under Section 2, Article III of the 1987 Constitution, which provided in part as follows:

4. In satisfying himself of the existence of a probable cause for the issuance of a warrant of arrest, the judge, following established doctrine and procedure, may either:

(a) Rely upon the fiscal’s certification of the existence of probable cause whether or not the case is cognizable only by the Regional Trial Court and on the basis thereof, issue a warrant of arrest. x x x

This requirement of evaluation not only of the report or certification of the fiscal but also of the supporting documents was further explained in People vs. Inting,[65]where this Court specified what the documents may consist of, viz., “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 of probable cause. Thus:

We emphasize the important features of the constitutional mandate that “x x x no search warrant or warrant of arrest shall

issue except upon probable cause to be determined personally by the judge x x x” (Article III, Section 2, Constitution).

First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor 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.

In adverting to a statement in People vs. Delgado[66] that the judge may rely on the resolution of the Commission on Elections (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 stressed in Lim vs. Felix[67] that

Reliance 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. The warrant issues not on the strength of the certification

standing alone but because of the records which sustain it.

And noting that judges still suffer from the inertia of decisions and practice under the 1935 and 1973 Constitutions, this Court found it necessary to restate the rule “in greater detail and hopefully clearer terms.” It then proceeded to do so, thus:

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 as or 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 witnesses themselves to answer the court’s probing questions when the circumstances of the case so require.

This Court then set aside for being null and void the challenged order of respondent Judge Felix directing the issuance of the warrants of arrest against petitioners Lim,et al., solely on the basis of the prosecutor’s certification in the informations that there existed probable cause “without having before him any other basis for his personal determination of the existence of a probable cause.”

In Allado vs. Diokno,[68] this Court also ruled that “before issuing a warrant of arrest, the judge 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.”

In the recent case of Webb vs. De Leon,[69] this Court rejected the thesis of the petitioners of absence probable cause and sustained the investigating panel’s and the respondent Judge’s findings of probable cause. After quoting extensively from Soliven vs. Makasiar,[70] this Court explicitly pointed out:

Clearly then, the Constitution, the Rules of Court, and our case law repudiate the submission of petitioners that respondent

judges should have conducted “searching examination of witnesses” before issuing warrants of arrest against them. They

also reject petitioners’ contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is

no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest.

In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer as well as the counter- affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties’ evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of the guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the Probable cause determination of the DOJ Panel does

not mean they made no personal evaluation of the evidence attached to the records of the case. (italics supplied)

The teachings then of Soliven, Inting, Lim, Allado, and Webb reject the proposition that the investigating prosecutor’s certification in an information or his resolution which is made the basis for the filing of the information, or both, would suffice in the judicial determination of probable cause for the issuance of a warrant of arrest. In Webb, this Court assumed that since the respondent Judges had before them not only the 26-page resolution of the investigating panel but also the affidavits of the prosecution witnesses and even the counter-affidavits of the respondents, they (judges) made personal evaluation of the evidence attached to the records of the case.

Unfortunately, in Criminal Case No. Q-93-43198, nothing accompanied the information upon its filing on 12 April 1993 with the trial court. As found by the Court of Appeals in its resolution of 1 July 1993, a copy of the Joint Resolution was forwarded to, and received by, the trial court only on 22 April 1993. And as revealed by the certification[71] of Branch Clerk of Court Gibson Araula, Jr., no affidavits of the witnesses, transcripts of stenographic notes of the proceedings during the preliminary investigation, or other documents submitted in the course thereof were found in the records of Criminal Case No. Q-93-43198 as of 19 May 1993. Clearly, when respondent Judge Asuncion issued the assailed order of 17 May 1993 directing, among other things, the issuance of warrants of arrest, 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. And strangely enough, he made no specific finding of probable cause; he merely directed the issuance of warrants of arrest “after June 21, 1993.” It may, however, be argued that the directive presupposes a finding of probable cause. But then compliance with a constitutional requirement for the protection of individual liberty cannot be left to presupposition, conjecture, or even convincing logic.

In criminal prosecutions, the determination of probable cause may either be an executive or a judicial prerogative. In People vs. Inting,[73] this Court aptly stated:

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for

the issuance of a warrant of arrest from a 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.

xxx xxx xxx

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the

determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a

probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It

is part of the prosecution’s job. The second kind of preliminary investigation which is more properly called preliminary

examination is judicial in nature and is lodged with the judge x x x.

Ordinarily, the determination of probable cause is not lodged with this Court. Its duty in an appropriate case is confined to the issue of whether the executive or judicial determination, as the case may be, of probable cause was done without or in excess of jurisdiction or with grave abuse of discretion amounting to want of jurisdiction. This is consistent with the general rule that criminal prosecutions may not be restrained or stayed by injunction, preliminary or final. There are, however, exceptions to this rule.

The present controversy arose when petitioner filed with Branch 24 of the Regional Trial Court (RTC) of Manila an application for the issuance of search warrants against an outlet and warehouse operated by respondents for infringement of trademark under Section 155, in relation to Section 170 of Republic Act No. 8293, otherwise known as the Intellectual Property Code of the Philippines.2 In the course of its business, petitioner has registered the trademark "SKECHERS"3 and the trademark "S" (within an oval design)4 with the Intellectual Property Office (IPO).

Two search warrants5 were issued by the RTC and were served on the premises of respondents. As a result of the raid, more than 6,000 pairs of shoes bearing the "S" logo were seized.

Later, respondents moved to quash the search warrants, arguing that there was no confusing similarity between petitioner’s "Skechers" rubber shoes and its "Strong" rubber shoes.

On November 7, 2002, the RTC issued an Order6 quashing the search warrants and directing the NBI to return the seized goods. The RTC agreed with respondent’s view that Skechers rubber shoes and Strong rubber shoes have glaring differences such that an ordinary prudent purchaser would not likely be misled or confused in purchasing the wrong article.

Some of these are;

1. The mark "S" found in Strong Shoes is not enclosed in an "oval design";

2. The word "Strong" is conspicuously placed at the backside and insoles;

3. The hang tags and labels attached to the shoes bears the word "Strong" for respondent and "Sketchers U.S.A." for private complainant;

4. Strong Shoes are modestly priced compared to the costs of Sketchers Shoes.

x x x x

Aggrieved, petitioner filed a petition for certiorari7 with the Court of Appeals (CA) assailing the RTC Order. On November 17, 2003, the CA issued a Decision8 affirming the ruling of the RTC.

As set out in the decision, the foregoing case involves a peculiar factual milieu in stark contrast with the instant case. As such, it finds no application in the controversy in the instant case.

Taking off from the foregoing premises, the public respondent judge did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that the act of the private respondent in selling and distributing rubber shoes which contain the trademarks and designs owned by the petitioners does not constitute trademark infringement. After all, the public respondent judge was merely exercising his judgmental call conformably with the factual and legal issues proferred and presented before him. Suffice it to state, it is a hornbook doctrine in our jurisdiction that certiorari will not be issued to cure errors in proceedings or to correct erroneous conclusions of law and fact. The special civil action for certiorari is not a remedy for errors of judgment, which are correctible by appeal (Montecillo vs. Civil Service Commission, 360 SCRA 99).

WHEREFORE, in consideration of the foregoing premises, the instant petition is perforce denied.[6]

Petitioner’s Motion for Reconsideration having been denied in an Order dated 18 June 2004, petitioner filed the instant case contending that the Court of Appeals committed grave abuse of discretion in considering matters of defense in a criminal trial for trademark infringement in passing upon the validity of the search warrant and in concluding that respondents are not guilty of trademark infringement in the case where the sole triable issue is the existence of probable cause to issue a search warrant.

For its part, respondent maintains that it is logical for the Court of Appeals to touch on the issue of whether or not there was trademark infringement since it was the very issue raised in the Petition for Certiorari. According to respondent, petitioner failed to qualify whether or not the determination of the Court of Appeals should be limited to whether or not there was probable cause to issue the search warrants. Furthermore, respondent claims that the trial

court may not be faulted for quashing the search warrants it had issued after finding that there was no basis for its issuance in the first place. According to respondent, after full appreciation of the trademarks and logos depicted in the rubber shoes presented before the court a quo for close comparison, it was only prudent for the lower court to correct itself and quash the search warrant following a finding that probable cause does not exist for the offense of trademark infringement.

At this juncture, it is paramount to stress that the power to issue search warrants is exclusively vested with the trial judges in the exercise of their judicial function.7 And inherent in the courts’ power to issue search warrants is the power to quash warrants already issued.8 After the judge has issued a warrant, he is not precluded to subsequently quash the same, if he finds upon re-evaluation of the evidence that no probable cause exists.9Though there is no fixed rule for the determination of the existence of probable cause since the existence depends to a large degree upon the finding or opinion of the judge conducting the examination,10 however, the findings of the judge should not disregard the facts before him nor run counter to the clear dictates of reason.11

In the determination of probable cause, the court must necessarily resolve whether or not an offense exists to justify the issuance or quashal of the search warrant.12 In the case at bar, the subject search warrant was issued allegedly in connection with trademark infringement, particularly the unauthorized use of the "S" logo by respondent in their Strong rubber shoes. After conducting the hearing on the application for a search warrant, the court a quo was initially convinced that there was sufficient reason to justify the issuance of the search warrant. However, upon motion of respondent to quash the search warrant, the lower court changed its position and declared that there was no probable cause to issue the search warrant as there was no colorable imitation between respondent’s trademark and that of petitioner.

Based on its appreciation of the respective parties’ arguments and the pieces of evidence, particularly the samples of the original Skechers rubber shoes vis-à-vis respondent’s Strong rubber shoes, the trial court concluded that respondent’s appropriation of the symbol "S" on their rubber shoes does not constitute an infringement on the trademark of petitioner. This exercise of judgment was further strengthened by the affirmation of the Court of Appeals that public respondent judge did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that the acts of respondent do not constitute trademark infringement in light of the factual and legal issues presented before it for consideration.

In ruling that there was no colorable imitation of petitioner’s trademark in light of the factual milieu prevalent in the instant case, the trial court may not be faulted for reversing its initial finding that there was probable cause. Based on the courts’ inherent power to issue search warrants and to quash the same, the courts must be provided with the opportunity to correct itself of an error inadvertently committed. After reevaluating the evidence presented before it, the trial court may reverse its initial finding of probable cause in order that its conclusion may be made to conform to the facts prevailing in the instant case.

Furthermore, the court was acting reasonably when it went into a discussion of whether or not there was trademark infringement, this is so because in the determination of the existence of probable cause for the issuance or quashal of a warrant, it is inevitable that the court may touch on issues properly threshed out in a regular proceeding.13 This finding that there was no colorable imitation of petitioner’s trademark is merely preliminary and did not finally determine the merits of the possible criminal proceedings that may be instituted by petitioner. As held in the case of Solid Triangle Sales Corp. v. Sheriff, RTC, Q.C., Br. 93:14

1âwphi1

When the court, in determining probable cause for issuing or quashing a search warrant, finds that no offense has been committed, it does not interfere with or encroach upon the proceedings in the preliminary investigation. The court does not oblige the investigating officer not to file an information for the court’s ruling that no crime exists is only for the purposes of issuing or quashing the warrant.

WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 77269, dated 17 November 2003 is hereby AFFIRMED. Costs against petitioner.

DECISION

Petitioner George Miller is a British national and an inmate at the Maximum Security

Compound of the New Bilibid Prison (NBP) in Muntinlupa City. In November and December

1998, while serving as Acting Secretary General of the Inmates’ Crusade Against Drugs

(ICAD) based at NBP, petitioner wrote two confidential letters[4]

addressed to then NBP

Superintendent Col. Gregorio Agalo-os. The letters contained a detailed report of the alleged

irregularities and drug trading activities of respondent Bernardino and Rodolfo Bernardo

(Bernardo), both inmates at the Medium Security Compound and ICAD Treasurer and

Chairman, respectively. Petitioner also recommended the transfer of Bernardino and Bernardo

to the Maximum Security Compound.

On January 6, 1999, at around 2:30 p.m., while proceeding towards the volleyball court at

the Medium Security Compound, petitioner felt a crushing blow at the back of his head. As

blood oozed from his head, petitioner ran to the Infirmary for first aid treatment. Later,

petitioner was transferred to the NBP hospital.

Investigation of the incident was immediately ordered by Supt. Agalo-os. PGIII Cecilio

M. Lopez conducted the investigation and submitted to the NBP Director his

Report[6]

dated January 5, 1999. Based on the sworn statement of petitioner and the verbal

admissions made by inmates Constantino Quirante, Jr. (Quirante) and Roberto Ceballos

(Ceballos), it was found that a few days before the incident, Bernardo and Bernardino

confronted petitioner regarding the letters he wrote reporting the alleged illegal drug activities

of Ace Aprid (Aprid), Bernardo and Bernardino at ICAD. Bernardo and Bernardino were

furious when petitioner admitted having authored the letters, threatening him with the words

“Mamamatay ka,” which petitioner fully understood: he is going to die. Petitioner discovered

that another inmate (Valeroso) to whom he confided the matter, had divulged the existence of

the letters to Bernardo and Bernardino. At the time he was hit at the back of his head,

petitioner was able to turn around and saw his assailant, later identified as Quirante, who ran

away through the gate leading to the “talipapa” where petitioner lost sight of him. Petitioner

then saw two persons standing near the entrance of the “talipapa” and shouted at one of them

asking for the identity of his assailant and if he saw the incident. However, the man just kept

mum. As petitioner realized that blood was oozing from his head, he immediately went to the

Infirmary.

The day after the incident, Bernardo and Bernardino along with fellow inmates Aprid,

Virgilio Adrales, Rogelio Aguilar, Amable Bendoy, Arnel Modrigo, Alfred Magno and Vergel

Bustamante, were brought to the investigation section.

In the course of the investigation, Quirante and Ceballos admitted their participation in

the attack on petitioner and the information they provided was summarized by the investigating

officer as follows:

x x x x

While the investigation was in progress, inmates Roberto Ceballos and

Constantino Quirante voluntarily surfaced admitting their participation in the clubbing

of Miller. After having been informed of their constitutional rights, the two during

interrogation and without second thought, narrated in detail how and why they

attempted to kill Miller in the following manner:

At around 10:30 A.M. of January 6, 1999, in whiling the time under the shade

of a tree in a basketball court of the Medium Security Camp, Quirante and Ceballos

were approached by Aprid and Bernardino to engage their services and offered an

amount of P1,500.00 to kill Miller. Being in dire need of money at the very moment,

Quirante and Ceballos accepted the offer. Quirante admitted treacherously hitting

Miller at the back of his head with a piece of wood but for failing to get him with one

blow, he had to flee. On the other hand, Ceballos admitted as the lookout and was

asked by Miller the identity of his assailant right after he was clubbed. Accordingly,

what motivated them to reveal everything is the fact that only P100.00 was paid in

advance to them by Bernardino and Aprid and the balance of P1,400.00 as promised

to be paid sooner was never fulfilled. The duo even signified their intention to reduce

their participation in writing to authenticate the admission of their guilt. However, in

the absence of a lawyer to assist them and to safeguard their constitutional rights, the

officer on case opted not to do so.

To ascertain the veracity of Ceballos and Quirante’s confession, a confrontation

was made at the Director’s Office. Several inmates were lined-up with Ceballos and

Quirante. Miller when asked to identify his assailant, he spontaneously pointed to

Quirante as the one who clubbed him on the head and likewise pointed to Ceballos as

the man whom he had shouted at asking for the identity of his assailant.

x x x x[7]

On the basis of the foregoing, PGIII Lopez recommended that Quirante and Ceballos be

charged with Frustrated Murder and the case be placed under further investigation “pending the

establishment of sufficient evidence to indict inmates Rodolfo Bernardo, Giovan Bernardino

and Ace Aprid.”[8]

On February 10, 1999, the case was endorsed to the Office of the City

Prosecutor submitting to the said office the following documents: (1) Investigation Report of

PGIII Lopez; (2) Sworn Statement of petitioner; (3) Medical Certificate; (4) Routing Slip of

Supt. Agalo-os; and (5) petitioner’s letters dated November 21, 1998 and December 27, 1998

addressed to the NBP Superintendent.[9]

The case was docketed as I.S. No. 99-B-01314.

On March 30, 1999, Prosecutor Antonio V. Padilla issued his resolution[10]

finding the

evidence sufficient to charge Quirante with attempted murder while dismissing the case against

Ceballos for insufficiency of evidence, thus:

Anent the charge against Giovan Bernardino and Rodolfo Bernardo, we noticed

that the same is merely anchored on suspicion and conjecture. Except the bare

allegations of the complainant, nothing would link them to the assault against the

complainant. In fact, their names were not even mentioned in the referral letter,

datedFebruary 10, 1999, of the Bureau of Corrections addressed to our Office.

WHEREFORE, premises considered, the undersigned respectfully recommends

that the attached Information be filed in court. Further, it is recommended that the

charge against Ceballos be dismissed on ground of insufficiency of evidence. As to

the charge against Bernardino and Bernardo the same is likewise recommended

dismissed on ground of insufficiency of evidence without prejudice to the refilling of

same in the event that evidence against them may be unearthed by concerned

authorities.[11]

(Italics supplied.)

Thereafter, an information for attempted murder was filed against Quirante only in the

Regional Trial Court (RTC) of Muntinlupa City (Branch 256), docketed as Criminal Case No.

99-452.

On or about April 14, 1999, Quirante and Ceballos executed a joint affidavit in Tagalog

(“Pinagsamang Sinumpaang Salaysay”[12]

) which was sworn to before Prosecutor

Padilla. They declared that at noontime of January 6, 1999, their services were engaged

through their “Bosyo” or Commander, Rodrigo Toledo (Toledo), who told them that if they hit

(“paluin”) petitioner they will be paid P1,500 by Bernardino and Bernardo. Hence, they carried

out the clubbing of petitioner by 2:00 in the afternoon of the same day infront of the volleyball

court of the Medium Security Compound while petitioner was walking from

the“talipapa.” Quirante struck at petitioner from behind using a piece of wood and then ran

away towards the “talipapa.” Petitioner turned around and saw Ceballos whom he asked for

the identity of his assailant. In pain and with bleeding wound on his head, petitioner

momentarily sat down and then brought himself to the infirmary. Ceballos thought that

petitioner did not recognize him since his face was then covered with shirt cloth. A day

later, Toledo handed them P100 as initial payment, the balance to be paid by Bernardo and

Bernardino also through Toledo. However, three days passed without the P1,400 being paid to

them, until they were called to appear before the Director’s office. When questioned during the

investigation, they readily owned up to the assault on petitioner because Bernardino and

Bernardo did not pay the agreed amount.

The sworn statement of Quirante and Ceballos was corroborated by Toledo who likewise

executed a “Sinumpaang Salaysay”[13]

on even date stating that as early as December 1998,

Bernardo and Bernardino have been talking to him about their plan to have petitioner

killed. Toledo being the leader of their group (BC 45) at the Medium Security Compound,

Bernardo and Bernardino promised that they will pay whoever among his (Toledo) men can do

it. Toledo claimed that he initially declined but due to the daily conversations with Bernardo

and Bernardino who also gave him food, he finally called on two of his men, Quirante and

Ceballos, to carry out the plan to kill petitioner. He was confident that everything will be

alright since Bernardo and Bernardino committed to pay P1,500 for the job. A day after the

clubbing of petitioner, he gave Quirante and Ceballos P100 as initial payment by Bernardo and

Bernardino for their services. Three days later, he learned that Quirante and Ceballos were

summoned before the Director’s Office in connection with the incident. He affirmed the truth

of the admissions made by Quirante and Ceballos because Bernardo and Bernardino failed to

comply with their undertaking.

On December 2, 1999, Quirante, Ceballos and Toledo executed new affidavits[14]

in

English, which were sworn to before Bureau of Corrections Assistant Director Joselito A.

Fajardo and Prosecutor Leopoldo B. Macinas. These new affidavits gave a more detailed

narration of the incident and pointed to Bernardo and Bernardino as the “masterminds” with

Aprid being an accomplice. Bernardo and Aprid allegedly planned the killing of petitioner

together with Toledo, the BC 45 Gang Commander, wherein Quirante agreed to be the one to

kill petitioner while another gang member, Ceballos, would act as his lookout. The affidavits

also mentioned what transpired during the preliminary investigation conducted by Prosecutor

Padilla and the earlier April 1999 Tagalog affidavits they executed before Prosecutor Padilla.

These documents were submitted during the reinvestigation conducted by Prosecutor Macinas.

Bernardo and Bernardino submitted their Joint Counter-Affidavit[15]

dated January 19,

2000, stating that it was the second time they were being implicated in the case and pointing out

that both investigations by the Investigation Section of the Bureau of Corrections and the Office

of the City Prosecutor, Muntinlupa City showed that they have no participation in the

commission of the offense. They asserted that the charges against them have no basis and the

fruit of the wrong and malicious imputations of the witnesses. They denied having committed

any violation of the rules and regulations of ICAD, of which Bernardo is Chairman while

Bernardino is the Treasurer. They claimed that in the three years they have been serving the

ICAD, the organization has more than progressed and benefitted their fellow inmates at the

NBP. As to the statements given by Quirante, Ceballos and Toledo, and other witnesses, these

are conflicting and muddled, showing so much evidence of them having been tutored.

Bernardo and Bernardino likewise presented a “Sinumpaang Salaysay”[16]

executed by

their witnesses, co-inmates Arnel Modrigo, Virgilio Adrales and Rogelio Aguilar. Said

affiants declared that when petitioner approached them and asked if Aprid and Bernardo had

anything to do with the incident, they plainly answered in the negative and told petitioner he

should ask those persons instead. Everyday, petitioner goes to them asking them to pinpoint

Aprid, Bernardo and Bernardino as the masterminds in order to strengthen the case against

them. Petitioner even asked them to sign a handwritten letter[17]

prepared by petitioner himself,

addressed to Supt. Agalo-os and which, while requesting for their transfer to the Medium

Security dormitories, also affirmed the culpability of Aprid, Bernardo and Bernardino for the

attempt on the life of petitioner. However, they refused to do so as they know there was no truth

to the contents of said letter.

On March 20, 2000, Prosecutor Leopoldo Macinas issued his

Memorandum[18]

addressed to the City Prosecutor finding probable cause against

Quirante, Ceballos and Toledo in conspiracy with Bernardino, Aprid and Bernardo, for

the crime of attempted murder. Prosecutor Macinas was convinced that the detailed

account given by Quirante, Ceballos and Toledo were executed freely and voluntarily, and

found no reason why they would incriminate their co-inmates other than the truth of the

statements in their affidavits. On the other hand, the defenses proffered by Bernardo and

Bernardino are evidentiary matters which can be best passed upon after a full-blown

trial.

WHEREFORE, it is respectfully recommended that respondents Giovan

Bernardino, Rod[o]lfo Bernardo, Rodrigo Toledo, Ace Aprid and Roberto Ceballos be

all indicted by way of the herein attached amended information as co-conspirators of

accused Constantino Quirante in attempting to kill George Miller, prima facie case

having been established.[19]

Consequently, an Amended Information was filed with the RTC which included the

names of Bernardino, Aprid, Bernardo, Toledo and Ceballos as co-conspirators in the crime of

attempted murder.

Bernardino filed a petition for review[20]

with the Department of Justice (DOJ) arguing

that there was no sufficient evidence presented to support a claim of conspiracy, which was

based merely on conflicting testimonies or affidavits in a language foreign to the affiants. He

noted that the English affidavits pointed to three people as the masterminds when originally

only two have been implicated by the perpetrators (Quirante and Ceballos).

Petitioner filed his opposition,[21]

alleging that contrary to the claim of Bernardino, the

Bureau’s investigation was far from complete as the Report of PGIII Lopez itself stated that the

case is recommended for further investigation “pending the establishment of sufficient evidence

to indict inmates Rodolfo Bernardo, Giovan Bernardino and Ace Aprid”. As to the Tagalog

affidavits, petitioner pointed out that these could not have been produced during the preliminary

investigation conducted by Prosecutor Padilla since the documents were executed only on April

14, 1999, two weeks after Prosecutor Padilla rendered his resolution. Further investigation by

the Bureau led to the execution of two affidavits in Tagalog (Quirante, Ceballos and Toledo)

without the knowledge of petitioner. However, said Tagalog affidavits “disappeared” and

petitioner was not allowed access to the Investigation Section’s file despite his complaints to

Director Sistoza, the Bureau and DOJ. Prior to the November 25, 1999 hearing on

reinvestigation, petitioner had new affidavits in English prepared with the assistance of a former

Supreme Court interpreter (inmate Chua) and these were subsequently signed by Toledo,

Quirante and Ceballos and sworn to before Prosecutor Macinas. Hence, the said documentary

evidence was already considered in the March 20, 2000 Resolution of Prosecutor

Macinas. Petitioner further alleged that Bernardo and Bernardino received thru registered mail

copy of the March 20, 2000 Resolution on June 16, 2000 but the petition for review before the

DOJ was actually filed only on July 27, 2000 but conveniently dated July 14, 2000.

On March 21, 2002, public respondent, then Secretary of Justice Hernando B. Perez,

issued his Resolution[22]

finding merit in the petition. According to Secretary Perez, the new

affidavits of Quirante, Ceballos and Toledo are not credible considering “the length of time they

were executed since the commission of the crime” and also because said documents cannot be

considered newly discovered evidence. He further noted that the affidavits were executed by

the same persons investigated by the Bureau of Corrections and who all participated in the

preliminary investigation of the case. At most, said affidavits can only be considered as

“afterthought or made upon the prodding or influence of other persons.” Public respondent thus

ordered:

WHEREFORE, the questioned resolution is MODIFIED. The City Prosecutor

of Muntinlupa City is directed to amend the information to exclude accused Giovan

Bernardino therefrom, and to report action taken within ten (10) days from receipt

hereof.

SO ORDERED.[23]

On March 25, 2002, a Motion to Admit Second Amended Information, which dropped

the name of respondent Bernardino as one of the accused, was filed in court.[24]

Petitioner filed a motion for reconsideration which was denied under

Resolution[25]

dated August 1, 2002.

Aggrieved, petitioner elevated the case to the CA via a Petition for Certiorari under Rule

65. Petitioner argued that public respondent gravely abused his discretion in disregarding all

material evidence presented which clearly showed that the affidavits of Quirante, Ceballos

and Toledo had not been submitted during the preliminary investigation conducted by

Prosecutor Padilla. Contrary to the pronouncement of the Secretary of Justice, the absence of

said affidavits could not be construed as an irregularity in the conduct of preliminary

investigation. This must be so since the March 30, 1999 resolution of Prosecutor Padilla

explicitly stated that if and when evidence be unearthed by the concerned authorities, the case

may still be re-filed against the other suspects, including Bernardo and Bernardino, for

conspiracy in the attempted murder of petitioner. Petitioner also faulted the public respondent in

granting the petition for review despite the same having been filed out of time, more than one

month after receipt of the DOJ resolution.[26]

On June 14, 2004, the CA rendered its Decision sustaining the ruling of the Secretary of

Justice, finding no grave abuse of discretion in the issuance of the questioned resolutions.

Petitioner’s motion for reconsideration was likewise denied by the CA.

Petitioner is now before this Court, alleging that –

THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS

ERRORS OF LAW, AND AS SUCH THE INSTANT PETITION SHOULD BE

ALLOWED, WHEN, IN AFFIRMING THE DECISION OF THE SECRETARY OF

JUSTICE DISREGARDING THE AFFIDAVITS OF THE WITNESSES DATED

APRIL 14, 1999 AND DECEMBER 2, 1999, IT RELIED HEAVILY ON A MERE

INFERENCE BASED NOT ON ESTABLISHED FACTS BUT ON ANOTHER

INFERENCE.

THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS

ERRORS OF LAW, AND AS SUCH THE INSTANT PETITION SHOULD BE

ALLOWED, WHEN, IN AFFIRMING THE DECISION OF THE SECRETARY OF

JUSTICE REVERSING THE INVESTIGATING PROSECUTOR’S FINDINGS OF

PROBABLE CAUSE AGAINST THE PRIVATE RESPONDENT, IT DEPARTED

FROM THE ESTABLISHED FACTS, AND IN THE PROCESS, FAILED TO

MAKE AN INDEPENDENT AND THOROUGH DETERMINATION OF THE

EXISTENCE OF PROBABLE CAUSE IN LIGHT OF APPLICABLE LAWS,

RULES AND JURISPRUDENCE.[27]

Petitioner contends that the CA erred in concluding that the decision of the Secretary of

Justice was supported with factual basis notwithstanding that its conclusion that the new

affidavits were executed upon the influence of persons who merely wanted to indict respondent

Bernardino, was based merely on another inference - that there was considerable length of time

before the said affidavits were executed. He assails the CA which, like the Secretary of Justice,

closed its eyes on the clear indications of culpability appearing on the faces of the affidavits

presented during the reinvestigation. The CA disregarded these pieces of evidence despite the

same having established prima facie that respondent Bernardino is probably guilty of the

charge, for the reason alone that since the Secretary of Justice himself “doubts the veracity of

the affidavits of Quirante, Ceballos and Toledo, it would be embarrassing to compel [him] to

prosecute the case.”

On the other hand, respondent Bernardino in his Comment argued that the “plain, speedy

and adequate remedy” of petitioner from the ruling of the Secretary of Justice should have been

the trial court’s resolution of the “Motion for Leave to File Second Amended Information”

which had been set for hearing, and not the petition for certiorari he filed before the CA. He

also insists that only one copy of the March 20, 2000 Memorandum of Prosecutor Macinas was

sent to the NBP which was addressed to petitioner. It was only on July 4, 2000 that his family

was able to secure a copy from the Office of the City Prosecutor. As to the resolution of public

respondent Secretary, respondent Bernardino maintains that the Secretary of Justice was correct

in disregarding the new English affidavits as they were subscribed by unlettered affiants who

can hardly speak Filipino and know only the Visayan dialect.

On its part, the Office of the Solicitor General (OSG) prays for the dismissal of the

petition as the Secretary of Justice committed no grave abuse of discretion in modifying the

ruling of Prosecutor Macinas by ordering the exclusion of respondent Bernardino from the

Information. Considering that the affidavits indicting respondent Bernardino were executed

after the initial preliminary investigation and after an information was already filed in court, the

Secretary of Justice was justified in giving less credence to the said evidence.

We find the petition meritorious.

Probable cause is defined as the existence of such facts and circumstances as would

excite the belief in a reasonable mind, acting on the facts within the knowledge of the

prosecutor, that the person charged was guilty of the crime for which he was prosecuted.[28]

To

determine the existence of probable cause, there is need to conduct preliminary investigation. A

preliminary investigation constitutes a realistic judicial appraisal of the merits of a case.[29]

Its

purpose is to determine whether (a) a crime has been committed; and (b) whether there is a

probable cause to believe that the accused is guilty thereof. It is a means of discovering which

person or persons may be reasonably charged with a crime.[30]

It is well-settled that the determination of probable cause for the purpose of filing an

information in court is an executive function which pertains at the first instance to the public

prosecutor and then to the Secretary of Justice.[31]

The Secretary of Justice may reverse or

modify the resolution of the prosecutor, after which he shall direct the prosecutor concerned

either to file the corresponding information without conducting another preliminary

investigation, or to dismiss or move for dismissal of the complaint or information with notice to

the parties.[32]

The Court considers it sound judicial policy to refrain from interfering in the conduct of

preliminary investigations and to leave the Department of Justice ample latitude of discretion in

the determination of what constitutes sufficient evidence to establish probable cause for the

prosecution of supposed offenders.[33]

Its duty in an appropriate case is confined to the issue of

whether the executive or judicial determination, as the case may be, of probable cause was done

without or in excess of jurisdiction or with abuse of discretion amounting to want of

jurisdiction.[34]

However, this Court may ultimately resolve the existence or non-existence of probable

cause by examining the records of the preliminary investigation when necessary for the orderly

administration of justice.[35]

Although policy considerations call for the widest latitude of

deference to the prosecutor’s findings, courts should never shirk from exercising their power,

when the circumstances warrant, to determine whether the prosecutor’s findings are supported

by the facts, or by the law.[36]

In this case, Secretary Perez disregarded the new (English) affidavits executed by

Quirante, Ceballos and Toledo, saying it was an afterthought or made simply upon the prodding

or influence of other persons. He also stated that Quirante, Ceballos and Toledo all participated

in the investigations of the Bureau of Corrections. No mention, however, was made of the fact

that said new affidavits firmly reiterated what Quirante, Ceballos and Toledo declared in their

earlier Tagalog affidavits and their verbal admissions during the investigation proceedings

conducted by PGIII Lopez. These Tagalog affidavits in turn, although executed two weeks

after the initial preliminary investigation conducted by Prosecutor Padilla, were properly

admitted and considered by the investigating officer, Prosecutor Macinas who took over during

the reinvestigation of the case. The recommendation of Prosecutor Padilla which initially found

probable cause only against Quirante, explicitly reserved the inclusion of Bernardo and

Bernardino whose complicity may eventually be established, by qualifying the dismissal of the

case as against them for insufficiency of evidence, with the words “without prejudice to the

refiling of the same in the event that evidence against them may be unearthed by concerned

authorities.” The reservation made by Prosecutor Padilla for the inclusion of other persons who

may have had complicity in the commission of the crime was grounded on reasonable belief

that there were other conspirators or masterminds, on the basis of the findings of PGIII Lopez

during the investigation by the Bureau, the verbal admissions of Quirante and Ceballos as to

their culpability and the alleged masterminds they identified. Hence, the English affidavits

submitted during the reinvestigation cannot be considered an afterthought and executed merely

upon the influence of certain persons, and Prosecutor Macinas properly admitted those in

evidence.

Indeed, the English affidavits contained a reiteration and more detailed account of the

clubbing incident earlier given by Quirante, Ceballos and Toledo in the Tagalog affidavits. In

these affidavits executed on December 2, 1999, as well as in the Tagalog affidavits dated April

14, 1999, they were consistent in pointing to Bernardo and Bernardino as the masterminds with

Aprid as accomplice, in the crime charged. Further, the English affidavits fully explained the

circumstances as to why they were not able to give sworn statements during the Bureau

investigation and initial preliminary investigation conducted by Prosecutor Padilla, before

whom they subscribed their Tagalog affidavits, and the reason for the execution of new

affidavits in English which were subscribed before Prosecutor Macinas. Thus, the pertinent

portions of their individual affidavits in English read:

Affidavit of Roberto Ceballos

x x x x

On January 9th 1999 at around 10:00 a.m. inmate Constantino Quirante was

arrested by the ICA (Inmates Custodial Aide) who took him to the Overseer’s Office

for interrogation. I was arrested shortly afterwards by the ICA and taken to their office

also for investigation. Inmate Constantino Quirante and I were then confined to the

Bartolina (disciplinary cell) where we remained for two months and twenty one days

(2 mos. 21 days) before being transferred to the Maximum Security Compound.

Shortly after being confined in the disciplinary cell at the Medium Security

Compound, inmate Quirante and I were summoned to the Maximum Security

Compound for interrogation. We first went to the office of Superintendent Agalo-os

and made a joint statement which we did not sign as we were nervous and a lawyer

(Ace Aprid’s counsel I think) was present. We were then taken to the ante-room of

the Director’s office where inmate Dr. George Miller was with an Inspector Lopez

from the Bureau’s Investigation Section and an [illegible] Inspector Lopez’s questions

in Tagalog and Dr. Miller asked why those people from ICAD wished to have him

killed. We told him it was because he had informed on them with a report to the

Superintendent. While confined in the Medium Security Compound’s Bartolina we

were visited by Giovan Bernardino who told us to keep quiet about what had

happened and gave us hamburgers. He also promised us money but this never

materialized.

Later in the beginning of March we were escorted to the Muntinlupa City

Prosecutor’s Office for a preliminary hearing. We were surprised nobody from ICAD

was there but Miller said he would not prefer charges against us provided we turned

State’s witnesses and deposed to a counter-affidavit exposing the “masterminds”,

those in fact who had commissioned the crime. Quirante and I requested the Asst.

Prosecutor Padilla for a few days within which to think about submitting a counter-

affidavit. The Asst. Prosecutor Padilla arranged a second preliminary hearing which

was on the 11th March 1999 when we informed him we were still thinking it

over. Afterwards when we were transferred to the Maximum Security Compound we

discovered the Bureau of Corrections’ Investigation Section had commenced an

inquiry into the management of ICAD. We were summoned to the Penal

Superintendent’s office with inmate Rudy Toledo, when Quirante and I gave a joint

affidavit withToledo giving another of his own account. All three of us were then

escorted to Assistant Prosecutor Padilla’s office in Muntinlupa City when we swore in

our respective affidavits. I understand from Dr. Miller these affidavits have been

“misplaced” and he is unable to access copies from the Bureau of Corrections. I

therefore agreed to execute another deposition which differs from the joint affidavit

sworn earlier in that this is more thorough.[37]

Affidavit of Constantino Quirante

x x x x

On January 9th, I was urinating in front of building 5 when I was called to the

office of Inspector Del Prado. I changed into my issue uniform at the brigada and

proceeded to Inspector Del Prado’s office where I was arrested. I admitted to the

“hit” on Miller and that I was acting on orders received from Boy Bernardo and

Giovan Bernardino of ICAD given to the BC 45 gang commander, Rudy Toledo. I

was then confined at the Medium Security Compound’s disciplinary cell. Roberto

Ceballos, who had been arrested and interrogated by the ICA joined me in the

bartolina. Giovan Bernardino later visited us in the bartolina bringing hamburgers but

no money. Upon his request I promised to keep quiet about the involvement of

inmate Boy Bernardo and himself. He assured me not to worry and that everything

would be taken care of.

Round about Jan. 29th, Roberto Ceballos and I were escorted to the office of

Superintendent Agalo-os at the Maximum Security Compound. We gave

Superintendent Agalo-os a statement but did not sign it. I believe the attorney of Ace

Aprid was present so Ceballos and I were nervous of signing. We were then taken to

the ante room of the Director’s office where inmate Miller was present with Inspector

Lopez of the Investigation Section and an interpreter. We were asked a number of

questions in Tagalog by Inspector Lopez and Dr. Miller asked why Bernardino and

Bernardo wished him to be killed [illegible] myself provided we completed a

counter-affidavit naming Bernardo and Bernardino as the

“masterminds”. Asst. City Prosecutor Padilla said he would give us some time to

consider and he arranged a second preliminary hearing for March 11th 1999. At the

second meeting we refused to give a counter-affidavit as we had not yet decided and

also we were worried.

Thereafter we were transferred to the Maximum Security Compound on the

30th of March. Approximately one month later we were called to the office of

Superintendent Agalo-os with inmate Rudy Toledo. Ceballos and I prepared a joint

affidavit for the Bureau’s Investigation section and Rudy Toledo completed a

sep[a]rate affidavit. These handwritten affidavits were photocopied in

Super[intendent] Agalo-os’s office by the Investigation Section Officer and at

approximately 4:00 p.m. we were escorted into Assistant City Prosecutor Padilla’s

office w[h]ere the affidavits were sworn.

This further affidavit is made at the request of Dr. Miller, as I understand the

prior affidavits sworn in front of Attorney Padilla have disappeared and he has not

been allowed access to the Bureau of Correction[s’] file copies with the Investigation

Section. This affidavit is more comprehensive and better than our first joint affidavit

which was hurriedly completed in manuscript.[38]

Toledo’s affidavit not only dovetailed with the above-mentioned circumstances

surrounding the execution of the two sets of affidavits, but also positively identified Bernardo,

Bernardino and Aprid as the masterminds and detailed how the crime was planned and carried

out on January 6, 1999. Thus:

x x x x

On or about December 15th, 1998 I had a meeting with inmate Giovan

Bernardino at the Inmates Crusade Against Drugs restaurant in the Medium Security

Compound of Camp Sampaguita. The meeting was arranged by Giovan Bernardino

when he spoke to me in my capacity as commander of the BC 45 Gang (Medium

Security Compound) requesting that I arrange for some of my members to kill Dr.

George Miller of the Inmates Crusade Against Drugs. He offered the sum of one

thousand five hundred pesos (PHP 1,500.00) to be paid after the task was

accomplished. Initially, I refused to accept this mission. Thereafter, we met several

times in ICAD’s premises mainly, at the billiard table. At each meeting, he

endeavoured to persuade me of that which he required earlier, namely to have some of

my gang members kill inmate George Miller. Everytime I refused inmate Bernardino

said there was no need to worry he was able to take care of everything afterwards. In

January he contacted me again when I was invited to ICAD’s offices where I

remember seeing a computer. Inmate Rodolfo “Boy” Bernardo, the Chairman of the

Inmates Crusade Against Drugs was present with another ICAD member inmate, Ace

Aprid, who was the Sigue Sigue Sputnik commander of the Medium Security

Compound. Inmates Bernardo and Aprid were the colleagues of inmate Bernardino

and all of them wanted Miller killed as they stated he had submitted a report

concerning their activities in ICAD to Superintendent Agalo-os and was responsible

for ICAD’s premises being subjected to a search by sniffer dogs at the

Superintendent’s direction. Later I arranged for two of my gang members, inmates

Constantino Quirante and Roberto Ceballos, who agreed to do as ICAD’s Bernardo,

Bernardino and Aprid had requested. This was the morning of the 6th of January and

it was agreed that Quirante would be the assassin while Ceballos was to be the

“lookout.” At the meeting it was planned that I would arrange for a distraction to take

place simultaneously when Quirante and Ceballos where [sic] killing Miller. Inmate

Miller’s movements to the High School and elsewhere that day were closely

monitored and in the afternoon he went to the store of inmate Boy Sabater at the

talipapa. I organized Sinulog Dancing for the BC 45 Gang anniversary at Camp

Sampaguita’s Plaza Compound with gang members to divert attention from

Quirante’s and C[e]ballo’s assassination of Miller. When the dancing was finished

one of my men informed me that Miller was still alive and had been sent to

the NBP Hospitalfrom the Camp Sampaguita Infirmary. Quirante had struck Miller

on the head from behind when he left the talipapa but failed to kill him. Afterwards

inmates Giovan Bernardino and Ace Aprid gave Quirante and Ceballos the sum of

one hundred pesos (PHP100.00). They were not paid the promised one thousand five

hundred pesos (PHP1,500.00) as their “mission was not completed” in that they failed

to kill Miller.

In February I was transferred to the Maximum Security Compound where I met

Dr. Miller and informed him that I was prepared to testify regarding the

foregoing. Inmates Quirante and C[e]ballos had been transferred earlier to the

Maximum Security Compound after confessing their involvement. Later the Bureau

of Corrections carried out an investigation regarding the affairs of ICAD when

Quirante, C[e]ballos and myself where [sic] summoned to the Penal Superintendent

Agalo-os’s office. The Bureau’s Investigation Section then took an affidavit from me

and a joint affidavit was completed by Quirante and C[e]ballos. Thereafter we were

escorted to the City Prosecutor[’s] Office in Muntinlupa City where the affidavits

were sworn in before the Assistant Prosecutor Padilla. Copies were taken for the

Investigation Section’s file. I was informed by Dr. Miller that the affidavits in the City

Prosecutor[’s] Office have “disappeared” and he had been prevented to date from

accessing the Bureau of Correction’s file, hence this further affidavit.[39]

Confronted with these evidence clearly showing prima facie that respondent Bernardino

was among those involved in the crime committed against petitioner, Prosecutor Macinas was

correct in finding probable cause, upon reinvestigation, to include respondent Bernardino along

with Bernardo, Aprid, Quirante, Ceballos and Toledo as those who will be formally charged

with attempted murder and recommending the filing of an amended information for this

purpose. In modifying the said amended information by dropping the name of respondent

Bernardino, Secretary Perez gravely abused his discretion, his conclusion that the new affidavits

were mere afterthought being contrary to the facts on record. Besides, the Secretary’s act

of absolving respondent Bernardino arbitrarily ignored the consistent and categorical

declarations of Quirante, Ceballos and Toledo that respondent Bernardino together with

Bernardo and Aprid instigated, planned and ordered the attack on petitioner, harping solely on

their belated execution of affidavits even if such delay have been satisfactorily explained.

We need not over-emphasize that in a preliminary investigation, the public prosecutor

merely determines whether there is probable cause or sufficient ground to engender a well-

founded belief that a crime has been committed, and that the respondent is probably guilty

thereof and should be held for trial.[40]

In a preliminary investigation, a full and

exhaustive presentation of the parties’ evidence is not required, but only such as may engender

a well-grounded belief that an offense has been committed and that the accused is probably

guilty thereof. Certainly, it does not involve the determination of whether or not there is

evidence beyond reasonable doubt pointing to the guilt of the person. Only prima

facie evidence is required; or that which is, on its face, good and sufficient to establish a given

fact, or the group or chain of facts constituting the party's claim or defense; and which, if not

rebutted or contradicted, will remain sufficient. Therefore, matters of evidence, such as who are

the conspirators, are more appropriately presented and heard during the trial.[41]

The term “probable cause” does not mean actual and positive cause nor does it import

absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of

probable cause does not require an inquiry into whether there is sufficient evidence to procure a

conviction. It is enough that it is believed that the act or omission complained of constitutes the

offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in

support of the charge.[42]

While it is this Court’s general policy not to interfere in the conduct of preliminary

investigations, leaving the investigating officers sufficient discretion to determine probable

cause, courts are nevertheless empowered to substitute their judgment for that of the Secretary

of Justice when the same was rendered without or in excess of authority.[43]

Where the

Secretary of Justice dismissed the complaint against the respondent despite sufficient evidence

to support a finding of probable cause, such clearly constitutes grave error, thus warranting a

reversal.[44]

The CA thus clearly erred in sustaining the ruling of Secretary Perez for the

exclusion of respondent Bernardino from the charge of attempted murder despite a prima

facie case against him having been established by the evidence on record.

WHEREFORE, the petition for review on certiorari is GRANTED. The

Decision dated June 14, 2004 and Resolution dated September 14, 2004 of the Court of Appeals

in CA-G.R. SP No. 72395 are hereby REVERSED and SET ASIDE. The Secretary of Justice

is hereby DIRECTED to REINSTATE or RE-FILE with deliberate dispatch the Amended

Information which included Giovan Bernardino as accused in Criminal Case No. 99-452 of the

National Capital Judicial Region, Regional Trial Court of Muntinlupa City, Branch 256.

NORMANDO DEL ROSARIO Y LOPEZ, accused-appellant.

Normando del Rosario was charged before Branch 17 of the Regional Trial Court of the Fourth Judicial Region stationed in Cavite City with Illegal Possession of Firearm and Ammunitions in Criminal Case No. 236-91 and Illegal Sale of Regulated Drugs in Criminal Case No. 237-91, under two informations reading, respectively, as follows:

Criminal Case No. 236-91

That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without legal authority, did, then and there, willfully, unlawfully, feloniously and knowingly have in his possession and control a homemade (paltik)caliber .22 revolver with three (3) live ammunition.

Contrary to law.

Criminal Case No. 237-91

That on or about September 4, 1991, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without legal authority, did, then and there, willfully, unlawfully, feloniously and knowingly sell to a poseur buyer an aluminum foil containing Methamphetamine Hydrochloride also known as "Shabu", a regulated drug.

Contrary to law.

(pp. 20-21, Rollo.)

Upon arraignment, accused-appellant pleaded not guilty to both charges, and after joint trial of the two cases, the court a quo rendered a decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court finds the accused Normando del Rosario y Lopez guilty beyond reasonable doubt in the above-entitled cases and he is hereby sentenced to undergo imprisonment: in Crim. Case No. 236-91 for Violation of P.D. 1866 of Seventeen (17) years, Four (4) months and One (1) day of reclusion temporal, as minimum to Twenty (20) years of reclusion temporal, as maximum and in Crim. Case No. 237-91 for a violation of Section 15, Article III of Republic Act 6425, as amended of life imprisonment and to pay a fine of P30,000.00, without subsidiary imprisonment in case of insolvency and to pay the costs in both cases.

The shabu, the One Hundred Peso bill and other paraphernalia are hereby ordered confiscated in favor of the government.

(pp. 28-29, Rollo.)

From said decision, the instant appeal has been interposed.

The prosecution's version of the case, as set forth in appellee's brief, is as follows:

Upon application of SPO3 Raymundo Untiveros of the Philippine National Police (PNP) of Cavite City, Regional Trial Court Judge Arturo de Guia issued in the morning of September 4, 1991 a search warrant (Exh. T, p. 50, Rec.— Crim. Case No. 237-91) authorizing the search and seizure of an "undetermined quantity of Methamphetamine Hydrochloride commonly known as shabu and its paraphernalias" in the premises of appellant's house located at 828 R. Basa St., San Roque, Cavite City. However, the search warrant was not implemented immediately due to the lack of police personnel to form the raiding team (pp. 4, 7, tsn., Feb. 4, 1992).

At about 9 o'clock in the evening of that day, a raiding team was finally organized. SPO3 Untiveros headed the raiding team with PO3 Rogelio Francisco, SPO1 Eduardo Novero, SPO3 Reynaldo de la

Cruz, PO1 Carlito Barbuco, PO3 Onrubio and SPO2 Villegas as members (pp. 5, 10, tsn., Feb. 4, 1992; p. 7, tsn., Dec. 11, 1991).

In the final briefing of the raiding team at the police station, it was agreed upon that PO1 Venerando Luna will buy shabu from appellant and after his return from appellant's house, the raiding team will implement the search warrant (p. 10, tsn., Feb. 4, 1992; pp. 17-18, tsn., Dec. 11, 1991). A marked money consisting of a P100 bill bearing serial no. PQ 329406 (Exh. P, p. 51, Rec.) was given by the Station Commander to PO1 Luna and entered in the police logbook (p. 12, Feb. 4, 1992). PO1 Luna with a companion proceeded to appellant's house to implement the search warrant. Barangay Capt. Maigue, Norma del Rosario and appellant witnessed the search at appellant's house (p. 10, tsn., Dec. 11, 1991). SPO3 de la Cruz and PO3 Francisco found a black canister containing shabu, an aluminum foil, a paltik .22 caliber (Exh. O) atop the TV set, three used ammunitions in a cup and three wallets (Exhs. Q, R, S), one containing the marked money (Exh. P; pp. 11-12, tsn., Dec. 11, 1992). SPO1 Novero found inside a show box aluminum foils, napkins and a burner (p. 9, tsn., March 11, 1992). SPO3 de la Cruz turned over the wallet containing the marked money to PO3 Onrubio (p. 8, 32, tsn., Jan. 7, 1992). The seized items were photographed thereat by Fred Agana and then turned over to PO3 Onrubio (pp. 8, 32, tsn., Jan. 7, 1992). SPO3 Untiveros issued receipts (Exhs. V, V-1, pp. 53-54, Rec.) for the seized items with Barangay Capt. Maigue and appellant's sister Norma as signing witnesses. He also made a return (Exh. U, p. 52, Rec.) of the seized items to the court (pp. 11-155, tsn., Feb. 18, 1992.).

At police station, the seized items were taped and initialed by SPO3 de la Cruz (p. 33, tsn., Jan. 7, 1992). The next day, SPO4 Pilapil, through PO1 Barbuco, forwarded to NBI Forensic Chemist Mary Ann Aranas for laboratory analysis the aluminum foil (Exhs. A, J, pp. 37, 46, Rec.) containing suspected shabu bought by PO1 Luna from appellant in the buy-bust operation as well as the aluminum foils (Exhs. G, K, pp. 43, 47, Rec.) containing suspected marijuana which were confiscated by virtue of the search warrant.

The findings of NBI Forensic Chemist Aranas disclosed that all the specimen submitted to her for laboratory analysis by SPO1 Pilapil, thru PO1 Barbuco, gave positive results for Methamphetamine Hydrochloride (pp. 2-9, tsn., Dec. 3, 1991; Exh. B, C, H, I, pp. 38, 39, 44, 45, Rec.).

(pp. 102-105, Rollo.)

Carefully evaluating the evidence on record, we believe that the prosecution has failed to prove the guilt of accused-appellant. Much is to be desired in the manner the police authorities effected the arrest of accused-appellant and the same observation may be made with regard to the way the prosecution conducted its case.

Foremost among the inadequacies of the prosecution is its failure to call to the witness stand PO1 Venerando Luna, the alleged poseur-buyer. There is, thus, a total absence of evidence to establish the purported sale of shabu by accused-appellant to Venerando Luna, the supposed poseur-buyer. The omission to present the poseur-buyer casts serious doubts that an illegal sale of a dangerous drug actually took place.

The trial court gave much weight to the testimonies of the police members of the buy-bust operation. However, the prosecution did not present as witness the supposed poseur-buyer. Such omission casts serious doubt on appellant's guilt because without the testimony of the poseur-buyer, there is no convincing evidence to show that appellant sold marijuana. The testimonies of the rest of the buy-bust operation are hearsay in view of the fact that the poseur-buyer, was never presented at the trial. There was even no testimony that when the accused-appellant handed the stuff to the poseur-buyer that the latter in turn handed the marked money. The failure of the prosecution to present the alleged buyer of the marijuana was a fatal flaw in the case against the accused.

(People vs. Fulgarillas, 212 SCRA 76, 80 [1992])

The testimony of prosecution witness PO3 Rogelio Francisco that Veneracion Luna, the alleged Poseur-buyer, bought shabu from accused-appellant was derived solely from what Luna supposedly told him (pp. 19-20, tsn., December 11, 1991) and, therefore, is patently hearsay evidence, without any evidentiary weight whatsoever.

Likewise, the statements of prosecution witnesses Policemen Reynaldo de la Cruz, Raymundo Untiveros, and Eduardo Novera, Jr. as to the alleged sale of shabu are hearsay, without weight, as all of them were not present during the alleged sale.

According to the version of the prosecution, during the alleged buy-bust operation, accused-appellant handed over to Veneracion Luna, the alleged poseur-buyer, a quantity of shabu, and Luna in turn paid accused-appellant a marked P100 bill and then returned to the police station and informed the raiding team that he had already bought the shabu from accused-appellant. Thereupon, the raiding team proceeded to the house of accused-appellant to implement the search warrant. The version of the prosecution is highly incredible. The record is devoid of any reason why the police officers did not make any attempt to arrest accused-appellant at the time he allegedly sold the shabu to Veneracion Luna who was accompanied by another police officer. That was the opportune moment to arrest accused-appellant. The version foisted by the prosecution upon this Court is contrary to human experience in the ordinary course of human conduct. The usual procedure in a buy-bust operation is for the police officers to arrest the pusher of drugs at the very moment he hands over the dangerous drug to the poseur-buyer. That is the very reason why such a police operation is called a "buy-bust" operation. The police poseur-buyer "buys" dangerous drugs from the pusher and "busts" (arrests) him the moment the pusher hands over the drug to the police officer.

We thus entertain serious doubts that the shabu contained in a small canister was actually seized or confiscated at the residence of accused-appellant. In consequence, the manner the police officers conducted the subsequent and much-delayed search is highly irregular. Upon bargaining into the residence of accused-appellant, the police officers found him lying down and they immediately arrested and detained him in the living room while they searched the other parts of the house. Although they fetched two persons to witness the search, the witnesses were called in only after the policemen had already entered accused-appellant's residence (pp. 22-23, tsn, December 11, 1991), and, therefore, the policemen had more than ample time to plant the shabu. Corollary to the constitutional precept that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved (Sec. 14(2), Article III, Constitution of the Republic of the Philippines) is the rule that in order to convict an accused the circumstances of the case must exclude all and each and every hypothesis consistent with his innocence (People vs. Tanchoco; 76 Phil. 463 [1946]; People vs. Constante, 12 SCRA 653 [1964]; People vs. Jara, 144 SCRA 516 [1986]). The facts of the case do not rule out the hypothesis that accused- appellant is innocent.

At any rate, accused-appellant cannot be convicted of possession of the shabu contained in a canister and allegedly seized at his house, for the charge against him was for selling shabu with the information alleging that the "accused, without legal authority did . . . sell to a poseur buyer an aluminum foil containing Methamphetamine Hydrochloride . . ." Sale is totally different from possession. Article 1458 of the Civil Code defines sale as a contract whereby "one of the contracting parties obligates himself to transfer the ownership of and to deliver a determine thing, and the other to pay therefor a price certain in money or its equivalent", while "possession is the holding of a thing or the enjoyment of a right" as defined by Article 523 of the Civil Code. Accused-appellant cannot be convicted of a crime which is not charged in the information for to do so would deny him the due process of law (People vs. Despavellador, 1 SCRA 205 [1961]; People vs. Mori, 55 SCRA 382 [1974]).

Neither can accused-appellant be convicted of illegal possession of firearm and ammunition. The search warrant implemented by the raiding party authorized only the search and seizure of ". . . the described quantity of Methamphetamine Hydrochloride commonly known as shabu and its paraphernalia" (Exh. O, p. 50, original record). Thus, the raiding party was authorized to seize only shabu and paraphernalia for the use thereof and no other. A search warrant is not a sweeping authority empowering a raiding party to undertake a finishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime. The Constitution itself (Section 2, Article III) and the Rules of Court (Section 3, Rule 126) specifically mandate that the search warrant must particularly describe the things to be seized. Thus, the search warrant was no authority for the police officers to seize the firearm which was not mentioned, much less described with particularity, in the search warrant. Neither may it be maintained that the gun was seized in the course of an arrest, for as earlier observed, accused-appellant's arrest was far from regular and legal. Said firearm, having been illegally seized, the same is not admissible in evidence (Stonehill vs. Diokno, 20 SCRA 383 [1967]). The Constitution expressly ordains the exclusion in evidence of illegally seized articles.

Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

(Section 3[2], Article III, Constitution of the Republic of the Philippines).

With the exclusion in evidence of the illegally seized firearm, there is, therefore, a total absence of evidence to support the charge of illegal possession of firearm, against accused-appellant.

The same may be said of the charge of illegal possession of ammunition.

WHEREFORE, the decision appealed from is hereby REVERSED and accused-appellant is hereby ACQUITTED in Criminal Case No. 236-91 and Criminal Case No. 237-91.

The immediate release of accused-appellant is hereby ordered unless there exists a pending valid cause against him.

The shabu, the marked P100 bill, firearm, and ammunition are hereby ordered confiscated in favor of the government.

SO ORDERED.

JUDGE CAMILO O. MONTESA, JR., Pairing Judge, Branch 18, Regional Trial Court, Malolos, Bulacan,respondent.

PER CURIAM:

In her complaint filed on 23 March 1993, Guillerma de los Santos-Reyes charges the respondent judge with gross ignorance of law and evident dishonesty in the performance of his work in that he granted bail to the accused in Criminal Cases Nos. 487-M-91, 488-M-91, and 488-M-91 without the required petition for bail and without conducting any hearing to accord the prosecution an opportunity to establish that the evidence of guilt of the accused was strong.

In compliance with the resolution of 24 May 1993, the respondent judge filed his comment wherein he disclosed that the issue raised was the subject of G.R. Nos. 108478-79 1 pending before the Second Division of this Court.

On 22 September 1993, this Court, upon the recommendation of the Office of the Court Administrator (OCA), dismissed this case, "the issues raised . . . being sub-judice but without prejudice to its revival should the Court in G.R. Nos. 108478-79 find the orders to have been issued with grave abuse of discretion."

In the decision promulgated on 21 February 1994, 2 this Court dismissed G.R. Nos. 108478-79. The complainant then filed on 23 November 1994 a motion to revive this complaint.

On 23 February 1995, the respondent judge filed an Additional Comment and Observation to stress that what he did was to quash the warrant of arrest, determine probable cause on the basis of the record and documents available, order the arrest of the accused, and grant bail to those against whom the evidence of guilt was weak.

Issues having been joined and the revival of this complaint being in order, this Court required the parties to manifest whether they agree to submit this case for decision on the basis of the pleadings they have submitted. In their separate manifestations, the parties responded in the affirmative.

The antecedent facts which gave rise to the instant complaint (as well as to G.R. Nos. 108478-79) are summarized in the decision in G.R. Nos. 108478-79 as follows:

On November 4, 1990, Patrolman Celso Reyes, Bgy. Captain Pedro Panganiban and Armando Vitug were ambushed along Ipo-road, Kay-Pian, San Juan del Monte, Bulacan, resulting in the untimely death of Reyes and Panganiban. The National Bureau of Investigation conducted an inquisition of the incident and after which charged petitioners Estelita Hipolito and Alfredo Bolsico, together with Romeo Adviento, Romeo Permejo, Rolando Gozum and four (4) John Does with the crimes of murder and frustrated murder before the Municipal Trial Court of San Jose del Monte, then presided over by Judge Virginia Pagarogon.

Judge Pagarogon conducted a preliminary investigation of the witnesses and on November 14, 1990 issued an order admitting the complaint and ordering the detention of all the accused after finding that the crimes charged have been committed and there is reasonable ground to believe that the accused are probably guilty thereof. No bail was recommended.

Judge Pagarogon then forwarded the records of the cases to the Provincial Prosecutor's Office of Bulacan for appropriate action. The Investigating Prosecutor, without conducting a thorough investigation of the cases, concluded that there was no probable cause and ordered motu proprio the release of the accused from custody. So, the widow of Patrolman Reyes petitioned the Department of Justice to disqualify the Provincial Prosecutor's Office from conducting the preliminary investigation and prosecution of the cases.

In due course, the DOJ acted favorably on the petition and designated State Prosecutor Santiago Turingan to take over and handle the cases. The State Prosecutor found probable cause for murder and frustrated murder against all the accused and consequently, they were formally charged with said crimes on March 13, 1991, before the Regional Trial Court of Malolos, Bulacan, docketed as Criminal Cases No. 487-M-91, 488-M-91 and 489-M-91. No bail was recommended and the corresponding warrants of arrest were issued.

The accused were quick to learn of the filing of the informations. On the same day (March 13, 1991), they filed a "Manifestation and Motion to Defer the Issuance of Warrants of Arrest," praying for the suspension of court proceedings on the ground that they are filing a petition for review of the resolution of the State Prosecutor.

On March 21, 1991, the accused, who were not yet arrested or placed under the jurisdiction of the trial court (after their precipitate release earlier), filed a "Petition to Grant Bail" in C.C. Nos. 487-M-91 and 488-M-91 and a "Petition to Reduce Bail in C.C. No. 489-M-91.

On March 25, 1991, the trial court issued an order denying the petitions since the accused had not yet surrendered and/or apprehended and, therefore, the court has not acquired jurisdiction over their persons.

On the same day (March 25, 1991), the accused filed another petition entitled "Reinstatement of the Petition to Grant Bail in the above entitled cases and Motion to Reduce Bail Bond and Motion to Set Petition for Hearing with Manifestation to Surrender the Accused on the Hearing of this Petition."

On April 4, 1991, the trial court, apparently with a change of heart, issued an order consolidating the petitions for bail, set them for hearing on April 6, 1991, and directed the DOJ and/or the Office of the Provincial Prosecutor to forward to it the records of the preliminary investigation of the cases within ten (10) days from notice.

On April 15, 1991, petitioners filed an urgent motion to quash the warrants of arrest alleging want of probable cause.

On April 22, 1991, the accused withdrew their motion for reinstatement of their petition for bail bond and opted to pursue their motion to quash the warrants of arrest.

On May 2, 1991, the trial court quashed the warrants of arrest and set the hearing on May 15, 1991 for the purpose of determining the existence of probable cause.

On May 17, 1991, after examining the records of the cases as forwarded to him by the prosecution, the trial court found the existence of probable cause but instead of issuing the corresponding warrants of arrest, for the purpose of acquiring jurisdiction over the persons of the accused upon their apprehension or voluntary surrender, it ex mero motu granted bail to them despite the absence of (because it was previously withdrawn) a petition for bail and, worse, the lack of a hearing wherein the prosecution could have been accorded the right to present evidence showing that the evidence of guilt is strong.

On August 23, 1991, the prosecution filed an omnibus motion praying for the cancellation of the bail bonds as well as the issuance of warrants of arrest on the fundamental ground that the trial court could not legally

grant bail in a capital offense without the prosecution being accorded the right to show that the evidence of guilt is strong.

On October 28, 1991, the trial court denied the prosecution's motion on the principal ground that its questioned orders had become final and executory. On December 2, 1991, the motion for reconsideration was likewise denied.

On March 3, 1992, the prosecution filed a petition for certiorari, prohibition and preliminary injunction with prayer for a temporary restraining order before respondent Court of Appeals, CA-G.R. S.P. No. 27430, assailing the following orders of the trial court: the May 17, 1991 order which granted bail to the accused; the October 28, 1991 order which denied the prosecution's omnibus motion praying for the issuance of warrants of arrest's as well as the cancellation of what it perceived to be irregularly posted bail bonds; and the December 2, 1991 order which denied the prosecution's motion for reconsideration. Upon the filing of said petition, respondent court issued the temporary restraining order.

On the other hand, petitioners filed a petition for certiorari, mandamus and prohibition before the same court, CA-G.R. S.P. No. 27472, seeking: (a) to annul the orders of the trial court resetting the hearings on different dates for being dilatory and violative of their constitutional right to a speedy trial; (b) to command the trial court to dismiss with prejudice all the criminal cases; and (c) to perpetually prohibit the prosecution of the criminal cases.

On July 31, 1992, respondent [Court of Appeals] ruled in favor of the prosecution. The dispositive portion of its consolidated decision reads:

WHEREFORE, the instant petition (SP No. 27430) is hereby granted and the questioned orders of respondent Court dated May 17, 1991, October 28, 1991, and December 2, 1991 are annulled and set aside. Accordingly, the accused herein (private respondents) are ordered arrested/committed pending the trial of their cases, without prejudice on their part to file in the proper court a petition for bail after the arrest, detention or deprivation of their liberty, wherein the prosecution is accorded the right to present evidence to prove that evidence of guilt is strong. SP No. 27472, on the other hand, is hereby DISMISSED for lack of merit, considering that the delays incurred herein were due to unavoidable circumstances and were therefore reasonable in nature.

No costs in both instances.

SO ORDERED.

Their motion for reconsideration having been denied, petitioners Hipolito, et al. filed with this Court a petition for review, docketed as G.R. Nos. 108478-79, which, as earlier stated, was dismissed on 21 February 1994.

Respondent judge asserts that he is not administratively liable for what he did because he was merely guided by the doctrine in Lim vs. Felix, 3 to the effect that the determination of probable cause for the issuance of a warrant of arrest should be personally determined by the judge. Since in these cases the issuance of the warrants of arrest was based solely on the certification of the state prosecutor, he granted the motion to quash the warrants of arrest and, considering that on the date of the hearing to determine probable cause the witnesses for the prosecution did not appear and the private prosecutor submitted the issue on the basis of the proceedings had at the preliminary investigation and the affidavits of witnesses, he formally resolved it on such basis. He further alleges that since he found the evidence purely circumstantial, except as against Romeo Permejo who was positively identified as the gunman, he believed that the evidence of guilt as against the others was not strong and, accordingly, admitted them to bail in the amount of P80,000.00 each.

The explanation of the respondent judge is wholly unacceptable for, contrary to his belief that he has shown perfect knowledge of the rules on the issuance of warrants of arrest and grant of bail, he has demonstrated either gross ignorance of the constitutional and statutory principles and settled jurisprudence thereon or gross incompetence which no claim of good faith can exculpate or even mitigate.

From the above recitals of the factual and procedural antecedents of the criminal cases before the trial court, it is obvious that the accused filed their petitions to grant bail and to reduce bail, motion to reinstate petition to grant bail and urgent motion to quash warrants of arrests before the court acquired jurisdiction over their persons either through the effective service and enforcement of the warrants of arrest or their voluntary surrender, i.e., before they were placed in the custody of the law or otherwise deprived of their liberty. Such being so, the trial court, initially, denied correctly the petition for grant of bail but subsequently disregarded law and jurisprudence when it favorably acted on the motion to reinstate the petition for grant of bail and set the motion for hearing on 6 April 1991, directing, for that purpose the Department of Justice and the Office of the Provincial Prosecutor to forward to it the records of the preliminary investigation.

In this jurisdiction it is settled that a person applying for bail should be in the custody of the law or otherwise deprived of his liberty. 4 While it may be true that the disregard of this precept was not consummated, it was not because the respondent judge corrected himself, but because the accused withdrew their petition for the grant of bail and opted to pursue their urgent motion to quash the warrants of arrest grounded on want of probable cause. Instead of retracing his steps back to the proper judicial path, the respondent judge, still forgetting that the accused remained scot-free, not only quashed the warrants of arrest, but, thereafter motu proprio converted, in effect, the "hearing" for the determination of probable cause for the issuance of the warrant of arrest, which he set on 15 May 1991, to a hearing on the matter of admission to bail, as his order of 17 May 1991 indisputably shows. In so doing, the respondent judge had either utterly confused the proceeding to determine probable cause for the issuance of a warrant of arrest from the proceeding on a petition for admission to bail, order deliberately ignored the basic requisites for the grant of bail.

The determination of probable cause in the issuance of a warrant of arrest is mandated by Section 2, Article III of the Constitution. 5 Probable cause for the issuance of a warrant of arrest means such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 6 A hearing is not necessary therefor. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge, following the established doctrine and procedure, shall either (a) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest, or (b) if on the face of the information he finds no probable cause, he may disregard the prosecutor's certification and require the submission of the supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 7

This procedure is dictated by sound public policy; 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. 8 At this stage of a criminal proceeding, the judge is not tasked to review in detail the evidence submitted during the preliminary investigation; it is sufficient that he personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause. 9

This judicial function does not carry with it a motu proprio review of the recommendation of the prosecutor in a capital offense that no bail shall be granted. Such a recommendation is the exclusive prerogative of the prosecutor in the exercise of his quasi-judicial function during the preliminary investigation, which is executive in nature. 10 In such cases, once the court determines that probable cause exists for the issuance of a warrant of arrest, the warrant of arrest shall forthwith be issued and it is only after the accused is taken into the custody of the law and deprived of his liberty that, upon proper application for bail, the court on the basis of the evidence adduced by the prosecution at the hearing called for the purpose may, upon determination that such evidence is not strong, admit the accused to bail. 11

Since the accused unilaterally withdrew their petition for bail, there was then nothing to be heard or acted upon in respect thereof. Even if they did not withdraw their petition, they have no right to invoke the processes of the court since they have not been placed in the custody of the law or otherwise deprived of their liberty by reason or as a consequence of the filing of the information. For the same reason, the court had no authority to act on the petition.12

Even if it be conceded for the sake of argument that the application for bail was regularly filed, the respondent judge wantonly ignored the due process requirement of hearing to afford the prosecution reasonable opportunity to prove that evidence of guilt of the applicants is strong. 13 To grant an application for bail and fix the amount thereof without such hearing duly called for the purpose of determining whether the evidence of guilt is strong constitutes ignorance or incompetence whose grossness cannot be excused by a claim of good faith or excusable negligence 14 or

constitutes inexcusable conduct which reflects either gross ignorance of the law or cavalier disregard of its requirements. 15

At the very least, the respondent judge exhibited gross incompetence. Gross ignorance of law and incompetence are characteristics and quirks impermissible in a judge. A judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles.16 He should he studious of the principles of the law, 17 and he must be faithful to the law and must maintain professional competence. 18

The respondent judge does not have an enviable record as a living personification of justice and the rule of law. 19

In Administrative Matter No. RTJ-91-753, 20 for abuse of discretion, this Court censured the respondent judge for issuing an order granting bail to an accused without affording the prosecution the opportunity to present evidence to show that the evidence of guilt was strong.

In Administrative Matter No. RTJ-91-742, 21 for gross ignorance of law and serious misconduct, the respondent judge was admonished to be more circumspect in the resolution of the cases before him and given a last warning that any form of infraction cases hereafter would be dealt with severely.

The respondent judge has indisputably failed to comply with the strict and exacting demands of the public-trust character of his office.

WHEREFORE, for gross ignorance of law or incompetence and conduct prejudicial to the best interest of the service, respondent Judge CAMILO O. MONTESA, JR., Presiding Judge of Branch 18 of the Regional Trial Court of Bulacan, is hereby ordered DISMISSED from the service with forfeiture of all benefits and with prejudice to re-employment in any branch or service of the government, including government-owned or controlled corporations. His dismissal shall take effect immediately upon his receipt of a copy of this decision which must be personally served by the Office of the Court Administrator.

Let a copy of this decision be attached to the records of the respondent with this Court.

LIM v. FELIX

May a Judge without ascertaining the facts through his own personal determination and relying solely on the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest?

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 (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with 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. (Rollo, p. 58, G.R. Nos. 94054-57)

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In the same Order, the court ordered the arrest of the petitioners and recommended the amount of P200,000.00 as bail for the provisional liberty of each of the accused.

Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each.

On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were transmitted to the Provincial Prosecutor of Masbate. Respondent Acting Fiscal Antonio C. Alfane was designated to review the case.

On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie case against the petitioners but differed in the designation of the crime in that the ruled that ". . . all of the accused should not only be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente Lim, Sr. and Mayor Susana Lim was denied.

On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations of murder against the twelve (12) accused with a recommendation of no bail.

On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of venue. (Case No. A.M. No. 89-11-1270-MTC, formerly, G.R. Nos. 90587-90)

On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit:

The cases were raffled to Branch 56 presided by respondent Judge Nemesio S. Felix.

Petitioners Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations which in substance prayed for the following:

1. 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 of this Honorable Court in its personal determination of the existence of a probable cause or prima facieevidence as well as its determination of the existence of guilt, pursuant to the mandatory mandate of the constitution that no warrant shall issue unless the issuing magistrate shall have himself been personally convinced of such probable cause.

2. Movants be given ample opportunity to file their motion for preliminary investigation as a matter of right; and

3. In the event that this court may later be convinced of the existence of a probable cause, to be allowed to file a motion for reduction of bail or for admission of bail. (p. 17, Rollo, G.R. Nos. 94054-57)

In another manifestation, the Lims reiterated that the court conduct a hearing to determine if there really exists aprima facie case against them in the light of documents which are recantations of some witnesses in the preliminary investigation. The motions and manifestations were opposed by the prosecution.

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 respondent Judge said:

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 which reads: (pp. 19-20, Rollo, G.R Nos. 94054-57; Emphasis supplied)

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The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order.

In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant of arrest without bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14.

In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved:

xxx xxx xxx

. . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the respondent judge to recall/set aside and/or annul the legal effects of the warrants of arrest without bail issued against and served upon herein petitioners Jolly T. Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them from confinement at PC-CIS Detention Center, Camp Crame, Quezon City; and (2) TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents, to CEASE AND DESIST from enforcing or implementing the warrants of arrest without bail issued against petitioners Mayors Nestor C. Lim and Antonio T. Kho.

The primary issue in these consolidated petitions centers on whether or not 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.

The case of Soliven v. Makasiar (167 SCRA 393 [19881) was decided after the effectivity of the 1987 Constitution. We stated:

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 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.

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 respondent 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 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 procedures, 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 examinations and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

The decision in People v. Honorable Enrique B. Inting, et al. (G.R. No. 88919, July 25, 1990), reiterated the above interpretation of "personal" determination by the Judge:

We emphasize important features of the constitutional mandate that ". . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge . . ." (Article III, Section 2, Constitution)

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.

Finally in the recent case of People v. Delgado, et al. (G.R. Nos. 93419-32, September 18, 1990) there is a statement that the judge may rely on the resolution of 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. We, however, also reiterated that ". . . the court may require that the record of the preliminary investigation be submitted to it to satisfy itself that there is probable cause which will warrant the issuance of a warrant of arrest." (Section 2, Article III, Constitution). Reliance 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. The warrant issues not on the strength of the certification standing alone but because of the records which sustain it.

It is obvious from the present petition that notwithstanding the above decisions, some Judges are still bound by the inertia of decisions and practice under the 1935 and 1973 Constitutions and are sadly confused or hesitant. Prosecutors are also interested in a clear cut ruling. We will, therefore, restate the rule in greater detail and hopefully clearer terms.

There is no problem with search warrants which are relatively fewer and far between and where there is no duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially in metropolitan or highly urban areas. If a Judge has to personally question each complainant and witness or go over the records of the Prosecutor's investigation page by page and word for word before he acts on each of a big pile of

applications for arrest warrants on his desk, he or she may have no more time for his or her more important judicial functions.

At the same time, the Judge cannot ignore the clear words of the 1987 Constitution which requires ". . . probable cause to be personally determined by the judge . . .", not by any other officer or person.

If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation are in Masbate, he or she has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge commits a grave abuse of discretion.

The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrants of arrest against the petitioners. There was no basis for the respondent Judge to make his own personal determination regarding the existence of a probable cause for the issuance of a warrant of arrest as mandated by the Constitution. He could not possibly have known what transpired in Masbate as he had nothing but a certification. Significantly, the respondent Judge denied the petitioners' motion for the transmittal of the records on the ground that the mere certification and recommendation of the respondent Fiscal that a probable cause exists is sufficient for him to issue a warrant of arrest.

We reiterate the ruling in Soliven v. 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 witnesses themselves to answer the court's probing questions when the circumstances of the case so require.

It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge documents of recantation of witnesses whose testimonies were used to establish a prima facie case against them. 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 (Tan Ang Bun v. Court of Appeals, et al. G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) 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. Even the Solicitor General recognized the significance of the recantations of some witnesses when he recommends a reinvestigation of the cases, to wit:

It must be pointed out, however, that among the documents attached to this Petition are affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by one, Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely on the strength of these earlier written statements of these witnesses that the Municipal Trial Court of Masbate found the existence of a prima facie case against petitioners and accordingly recommended the filing of a Criminal Information. Evidently, the same written statements were also the very basis of the "Fiscal's Certification", since the attached affidavits of recantation were not yet then available. Since the credibility of the prosecution witnesses is now assailed and put in issue and, since the petitioners have not yet been arraigned, it would be to the broader interest of justice and fair play if a reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect them from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials (Salonga v. Paño G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos. 94054-56, pp. 200-201)

We reiterate that 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 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.

WHEREFORE, the instant petitions are hereby GRANTED. 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. The Temporary Restraining Orders and Preliminary Mandatory Injunction issued in the instant Petitions are made PERMANENT.

SO ORDERED.

NATALIO P. AMARGA, provincial fiscal of Sulu, Petitioner, vs. HONORABLE MACAPANTON ABBAS, as Judge, of the Court of First Instance of Sulu, Respondent.

D E C I S I O N

PARAS, C.J.:

The Petitioner, the Provincial Fiscal of Sulu, filed in the Court of First Instance of Sulu an information for murder (criminal case No. 1131, People of the Philippines vs. Madpirol, Awadi, Rajah, Sali, Insa and Maharajah Bapayani). At the foot of the information the Petitioner certified under oath that “he has conducted the necessary preliminary investigation pursuant to the provisions of Republic Act No. 732.” As the only supporting affidavit was that of Iman Hadji Rohmund Jubair, to the effect that the latter “was told that the deceased was shot and killed by three persons named: chanroble svirtuallawlibrary Hajirul Appang, Rajah Appang and Awadi Bagali,” and the Petitionerhad failed or refused to present other evidence sufficient to make out a prima facie case, theRespondent judge issued an order the dispositive part of which reads as follows: chanroble svirtuallawlibrary “In view of the foregoing considerations, and considering that the only affidavit supporting the information does not make out a prima facie case, this case is hereby ordered dismissed without prejudice to reinstatement should the provincial fiscal support his information with record of his investigation which in the opinion of the court may support a prima facie case.”

Whereupon the Petitioner instituted in this court the present petition for certiorari and mandamus, wherein it is contended that, as he had already conducted a preliminary investigation, it became the ministerial function of the Respondent judge to issue the corresponding warrant of arrest upon the filing of the information in criminal case No. 1131.

Upon the other hand, the Respondent judge argues that the issuance of a warrant of arrest involves a judicial power which necessarily imposes upon him the legal duty of first satisfying himself that there is probable cause, independently of and notwithstanding the preliminary investigation made by the provincial fiscal under Republic Act No. 732; chan roble svirtualawlibraryand to that end he may require the fiscal to submit such evidence as may be sufficient to show at least a prima facie case.

Section 1, paragraph 3, of Article III of the Constitution provides that “no warrant shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.” As was said in the case of U.S. vs. Ocampo, 18 Phil., 1, 41-42, “The question whether ‘probable cause’ exists or not must depend upon the judgment and discretion of the judge or magistrate issuing the warrant. It does not mean that particular facts must exist in each particular case. It simply means that sufficient facts must be presented to the judge or magistrate issuing the warrant to convince him, not that the particular person has committed the crime, but that there is probable cause for believing that the person whose arrest is sought committed the crime charged. No rule can be laid down which will govern the discretion of the court in this matter. If he decides, upon the proof presented, that probable cause exists, no objection can be made upon constitutional grounds against the issuance of the warrant. His conclusion as to whether ‘probable cause’ existed or not is final and conclusive. If he is satisfied that ‘probable cause’ exists from the facts stated in the complaint, made upon the investigation by the prosecuting attorney, then his conclusion is sufficient upon which to issue the warrant for arrest. He may, however, if he is not satisfied, call such witnesses as he may deem necessary before issuing the warrant. The issuance of the warrant of arrest is prima facie

evidence that, in his judgment at least, there existed ‘probable cause’ for believing that the person against whom the warrant is issued is guilty of the crime charged. There is no law which prohibits him from reaching the conclusion that ‘probable cause’ exists from the statement of the prosecuting attorney alone, or any other person whose statement or affidavit is entitled to credit in the opinion of the judge or magistrate.

The preliminary investigation conducted by the Petitioner under Republic Act No. 732 which formed the basis for the filing in the Court of First Instance of Sulu of criminal case No. 1131 does not, as correctly contended by the Respondent judge, dispense with the latter’s duty to exercise his judicial power of determining, before issuing the corresponding warrant of arrest, whether or not probable cause exists therefor. The Constitution vests such power in theRespondent judge who, however, may rely on the facts stated in the information filed after preliminary investigation by the prosecuting attorney.

While the Respondent Judge was within his right in requiring the Petitioner to submit further evidence so as to show probable cause for the issuance of a warrant of arrest, he exceeded his jurisdiction in dismissing the case which was filed with the Court of First Instance of Sulu not merely for purposes of preliminary investigation. In other words, the failure or refusal of thePetitioner to present further evidence, although good as a ground for the Respondent Judge not to issue a warrant of arrest, is not a legal cause for dismissal.

Wherefore, the petition is granted and the Respondent Judge ordered to proceed with criminal case No. 1131 in accordance with law, it being understood that, if within ten days after notice by the Respondent Judge, the Petitioner still fails or refuses to present other necessary evidence, the dismissal will stand for lack of prosecution. Without costs.

Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L. and Endencia, JJ., concur.

Amarga v. Abbas, 98 Phil. 739 (1956)

F: Municipal Judge Samulde conducted a preliminary investigation (PI) of Arangale upon a

complaint for robbery filed by complainant Magbanua, alleging that Arangale harvested palay from

a portion of her land directly adjoining Arangale’s land. After the PI, Samulde transmitted the

records of the case to Provincial Fiscal Salvani with his finding that “there is prima facie evidence

of robbery as charged in the complaint”. Fiscal Salvani returned the records to Judge Samulde on

the ground that the transmittal of the records was “premature” because Judge Samulde failed to

include the warrant of arrest (WA) against the accused. Judge Samulde sent the records back to

Fiscal Salvani stating that although he found that a probable cause existed, he did not believe that

Arangale should be arrested.

Fiscal Salvani filed a mandamus case against Judge Samulde to compel him to issue a

WA. RTC dismissed the petition on the ground that the fiscal had not shown that he has a clear,

legal right to the performance of the act to be required of the judge and that the latter had an

imperative duty to perform it. Neverhteless, Judge Samulde was ordered to issue a WA in

accordance with Sec. 5, Rule 112 of the 1985 Rules of Court.

ISSUE: Whether it is mandatory for the investigating judge to issue a WA of the accused in view

of his finding, after conducting a PI, that there exists prima facie evidence that the accused

commited the crime charged.

^ HELD: THE PURPOSE OF A PRELIMINARY INVESTIGATION DOES NOT

CONTEMPLATE THE ISSUANCE OF A WA BY THE INVESTIGATING JUDGE OR

OFFICER.

Under Rule 112 of the 1985 ROC, a PI is conducted on the basis of affidavits to determine

whether or not there is sufficient ground to hold the accused for trial. To determine whether a WA

should issue, the investigating judge must have examined in writing and under oath the

complainant and his wirtnesses by searching questions and answers; he must be satisfied that a

probable cause exists; and there must be a need to place the accused under immediate custody in

order not to frustrate the ends of justice. It is not obligatory, but merely discretionary, upon the

investigating judge to issue a WA, for the determination of whether it is necessary to arrest the

accused in order not to frustrate the ends of justice, is left to his sound judgment or discretion.

The fiscal should, instead, have filed an information immediately so that the RTC may issue

a warrant for the arrest of the accused.

EDUARDO QUINTERO, petitioner, vs. THE NATIONAL BUREAU OF INVESTIGATION, HON. ELIAS ASUNCION, Judge of the Court of First Instance of Manila, and HON. JOSE FLAMINIANO, City Fiscal of Pasay City, respondents.

PADILLA, J.:

Supervening events, like the February 1986 revolution and the reported death in the United States of herein petitioner, of which the Court cannot however take cognizance (in the absence of formal notice from the parties), could be the most convenient grounds for declaring this case closed and terminated. But the convenient way is not necessarily the proper judicial recourse, especially when the issues raised remain contentions, sharpened by the persuasive force of enlightened advocacy, and which not even the impact of such supervening events has succeeded to meet.

Besides, what the Court says and decides today in this case may well be the source of wisdom for succeeding governments which should all be determined, at the very least, to avoid the excesses and, therefore, fatal pitfalls of a past regime.

In this petition for certiorari, prohibition and injunction, with preliminary injunction, petitioner seeks to annul and declare as void and without legal effect Search Warrant No. 7, issued on 31 May 1972 by respondent Judge Elias Asuncion of the then Court of First Instance of Manila, as well as all acts and proceedings taken thereunder.

The antecedents, now a part of the country's political history, are as follows:

On 19 May 1972, petitioner Eduardo Quintero, delegate of the first district of Leyte to the 1971 Constitutional Convention (Con-Con, for short) delivered a privilege speech 1 at a plenary session of the Con-Con. In his speech, Delegate Quintero disclosed that, on different occasions, certain persons had distributed money to some delegates of the Con-Con, apparently in an effort to influence the delegates in the discharge of their functions. As an offshoot of this disclosure, Delegate Quintero delivered to the Con-Con the aggregate amount of the "payola" he himself had received, the amount of eleven thousand one hundred fifty pesos (P11,150.00) in cash, preserved intact for delivery

to the proper officials of the Con-Con, for whatever action it may wish to take on the matter. Delegate Quintero, however, did not reveal the names of the persons who gave him the money; and he begged at that time not to be made to name names. 2

However, pressure mounted on Delegate Quintero to reveal the Identities of the people behind the "payola" scheme. Hence, on 30 May 1972 (the day after he returned from Tacloban City, where he had attended the funeral of his brother), Delegate Quintero released from his hospital bed in San Juan de Dios Hospital, where he was hospitalized due to an indisposed condition, a sworn statement addressed to the Committee on Privileges of the Con-Con, mentioning the names of the persons who gave him the "payola." The full text of the sworn statement released by Delegate Quintero is quoted hereunder:

Thus, the then First Lady, Mrs. Imelda R. Marcos, among others, was implicated in the Quintero in expose. Hours after Delegate Quintero's statement was made public, then President Ferdinand E. Marcos went on the air as well as on TV to denounce Mr. Quintero, and Mr. Marcos averred that he "shall not rest until I have unmasked this pretender, his master-minds and accomplices." 4

In the evening of the same day that Mr. Marcos issued the afore-quoted statement, the agents of the respondent National Bureau of Investigation (NBI, for short) raided the house of Delegate Quintero, at 2281 Mayon St., Sta., Aria, Manila, on the basis of Search Warrant No. 7 issued also on 31 May 1972 by respondent Judge Elias Asuncion of the Court of First Instance of Manila. After the raid, said NBI agents claimed to have found in the Quintero residence, and therefore seized, bundles of money amounting to P379,000.00.

On 1 June 1972, the NBI filed with the City Fiscal of Pasay a criminal complaint for direct bribery against Delegate Quintero. The fiscal immediately scheduled a preliminary investigation in relation thereto.

On 5 June 1972, Delegate Quintero availed of the present recourse.

On 6 June 1972, the Court issued a temporary restraining order enjoining the use in any proceeding of the objects seized by the respondent NBI from the Quintero residence. The 1935 Constitution which was in force at the time of the issuance of the questioned search warrant, provides:

Article III—Bill of Rights

Section 1 (3) The rights of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined 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.

Section 3, Rule 126 of the Rules of Court provided:

Sec. 3. Requisites for issuing search warrant. — A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the judge or justice of the peace 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.

No search warrant shall issue for more than one specific offense.

Under the aforequoted provisions, a search warrant may issue only upon the finding of the judge of "probable cause," and the latter has been defined as "such facts and circumstances which would lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched. 6

In the case at bar, the questioned search warrant was issued by respondent Judge, upon application of NBI agent Samuel Castro. Said application was accompanied by an affidavit of the complainant, Congressman Artemio Mate, whose affidavit was allegedly made also before the respondent judge.

The interrogations conducted by the respondent judge, upon the applicant NBI agent Samuel Castro, showed that the latter knew nothing, of his own personal knowledge, to show that Mr. Quintero had committed any offense. Said interrogation is quoted hereunder:

Interrogations Conducted by Judge Elias B. Asuncion Upon NBI Agent Samuel Castro, this 31st day of May 1972 at City Hall, Manila

Questions by the Court:

(Witness Being Sworn To In Accordance With Law')

Q. Please state your name and other personal circumstances.

A. Samuel Castro, of legal age, married and NBI Agent, Manila.

Q. You are applying for a search warrant, what are the facts upon which you base your application?

A. Facts gathered from my investigation on Congressman Artemio Mate of Leyte who declared to us that he has seen Delegate Eduardo Quintero receive bribe money from two men as a consideration of signing a statement which he submitted to the Committee on Privileges of the Constitutional Convention.

Q. Do you know where the bribe money is now kept?

A. We have reason to believe that the bribe money is now kept in the residence of Delegate Eduardo Quintero at 2281 Mayon St., Sta. Ana, Manila.

That is all.

Certification

I hereby certify that the foregoing is a record of the proceedings I took on my interrogation of NBI agent Samuel Castro, the questions having been asked by me and the answers given by NBI agent Samuel Castro in connection with his application for a search warrant.

May 31,1972, Manila.

(Sgd) Elias B. Asuncion

Judge

Branch XII, CFI 7

On the other hand, the sworn statement of Congressman Mate states:

REPUBLIC OF THE PHILIPPINES

CITY OF MANILA

INTERROGATION BY JUDGE ELIAS B. ASUNCION UPON CONGRESSMAN ARTEMIO MATE IN CONNECTION WITH AN APPLICATION FOR SEARCH WARRANT AT THE CHAMBER OF JUDGE ELIAS B. ASUNCION THIS 31ST DAY OF MAY, 1972.

COURT QUESTIONING: (After Deponent was sworn to in accordance with law)

Q Please state your name and other personal circumstances.

A Artemio Mate, of legal age, married, Congressman of the first district of Leyte, and a resident of Tacloban.

Q Why are you here, Congressman?

A I would want to declare in connection with the fact that Delegate Eduardo Quintero had received half a million pesos as a consideration for having signed an affidavit, or statement.

Q What about this affidavit or statement?

A It is his affidavit which he released to the Committee on Privileges of the Constitutional Convention naming certain persons as having doled out to him on various occasions sums of money contained in envelopes.

Q Why do you say that Delegate Quintero received half a million pesos as consideration of his having signed that affidavit?

A Because when I went to the San Juan De Dios Hospital in the evening of May 29, 1972 where Delegate Eduardo Quintero is confined, for the purpose of greeting him on his birthday, as I was about to enter Room Number 307, I saw two persons at his bedside. On seeing, them, I did not enter the room because from the door screen I noticed that they were in serious huddle. So I stayed behind the door screen which kept me out from their view. While there, I heard one of them say that "half of the amount" promised will be delivered immediately provided that he (Delegate Quintero) agrees to sign the statement which he was then holding, after the person pulled out a folder from his brief case. Then, I heard Delegate Quintero asked. "Where is the half.?" At this time, one of the two was holding a suitcase from the other man and then said: "Here it is," as he opened a little the suitcase. As the suitcase was half-opened, I saw bundles of money inside the suitcase.

Q Then, what happened?

A The suitcase was closed, and then I saw Delegate Quintero took the folder from that person and Delegate Quintero placed the folder under his pillow, while he was nodding as if saying "yes."

Q After that, what happened?

A The two stood up, together with Mrs. Quintero and after wishing Delegate Quintero for speedy recovery, they were then walking towards the door. Then, I heard Mrs. Quintero say to her husband that it would be better for her to bring home the suitcase, and Quintero agreed, So, Mrs. Quintero and the two men left together. One of them offered to carry the suitcase for Mrs. Quintero. As they were already going out, I pretended to have just arrived and so we met.

Q What happened when you met them?

A I asked Mrs. Quintero where she was going, and she replied nervously that she was going to their Sta Ana residence.

Q Why do you say that the money in the suitcase was for the payment of Delegate Quintero's signing of the statement?

A Because we had an antecedent conversation with Mrs. Quintero when we were still in Tacloban. There was one time I, and Delegate Ramon Salazar, went to the house of Delegate Quintero at Tacloban City. This was at the eve of the burial of the deceased brother of Quintero. At this time, Delegates Feria and Occena were also in the house of Delegate Quintero and we were informed that those two-Feria and Occena were with Delegate Quintero in his room. So, we wanted to see them also. As we were going up the stairs of the house to The second floor, we were met by Mrs. Quintero. Mrs. Quintero pulled us aside and pointblank whispered to us: "If you or your group can match the one million pesos offered to us by Mano Pio Pedrosa and the Liberals, your Tio Dading (Quintero) will agree not to proceed with the expose."

Q And what did you tell her?

A I was taken aback by her relevation and I would not answer her. After that we chose to leave her and we asked that we be allowed to see Delegate Quintero. Upon seeing them — Delegate Quintero, Feria and Occena in the room, they immediately stopped their conversation.

Q Now, going back to the money inside the suitcase. Did you see Mrs. Quintero bring out the suitcase from the ward where Delegate Quintero was confined?

A Yes, sir. They brought it out. It was held by the man who offered to carry it for Mrs. Quintero.

Q Do you know where this money was brought?

A I have good reasons to believe that it is now in the residence of Delegate Eduardo Quintero at 2281 Mayon Street, Sta Ana, Manila, as I heard Mrs. Quintero told Delegate Quintero that it would be better for her to bring the suitcase to their residence.

Q Do you wish to say more?

A I am ready to answer any question, but if no more asked now, then I will declare on further details when the proper time comes.

Q Are you willing to sign this statement freely, without mental reservations, nor of force, or threat or duress to vitiate your voluntary will?

A Yes.

It is quite evident that the aforequoted statements did not provide sufficient basis for the finding of probable cause upon which a search warrant could validly issue. The statement of the applicant, NBI agent Samuel Castro, had no weight at all, for lack of personal knowledge about any offense that was committed by petitioner. On the other hand, it is clear from a careful examination of Congressman Mate's statement that, from it, no judicious, reasonable and prudent man could conclude that probable cause existed that Mr. Quintero had committed the crime of direct bribery.

The statement of Congressman Mate was characterized with several material omissions. Firstly, it was not shown by any competent evidence that the document inside the folder which he (Mate) allegedly saw was being given to Quintero in the hospital room, was the very statement of "expose which Quintero released to the Committee on Privileges of the Con-Con. Congressman Mate never made any statement that he knew what the document was — supposedly inside the folder handed to Quintero. Neither was any verification made by the respondent judge to find out whether Congressman Mate knew, of his personal knowledge, what the document was — contained in the said folder, and whether he (Mate) knew, of his personal knowledge, that the sworn statement released by Quintero to the Committee on Privileges, was the very statement or document contained in said folder.

Secondly, it was not shown by any competent evidence that the document supposedly inside "he folder-whatever it was — was actually signed by Quintero. What Congressman Mate supposedly saw was that Quintero "placed the folder under his pillow, while he was nodding as if saying "yes." " But the fact remained that the statement of Congressman Mate did not show that Quintero signed whatever was inside the folder given to him by the two unidentified persons, before they left the room; and then there was no showing by Congressman Mate that he ever saw Quintero sign afterwards the alleged "statement" contained in the folder.

Thirdly, there was no showing by competent evidence that the money supposedly given to Quintero was the payment for the signing by Quintero of the statement — whatever it was — given to him inside a folder by the two persons. The only thing that linked the alleged giving of the money to Quintero, to his alleged signing of the statement, was an inference from hearsay evidence, which was the supposed statement of Mrs. Quintero, on a different occasion, that her husband was being offered P1,000,000.00 by Pio Pedrosa and the Liberals to make the "expose." And from this, it was drawn by Congressman Mate that the money supposedly delivered to Quintero in the hospital room was payment for his signing the alleged document inside the folder, containing the "expose".

The supposed statement of Mrs. Quintero was purely hearsay, insofar as petitioner Quintero was concerned. Her statement, if any, was not binding upon the petitioner, and therefore, should not prejudice the latter. The respondent judge should have known this before he issued the questioned search warrant. As held by the Court, an application for search warrant, if based on hearsay, cannot, standing alone, justify the issuance of a search warrant. 9 There is no doubt, in the case at bar, that the alleged statement of Mrs. Quintero was indubitably hearsay, insofar as petitioner Quintero was concerned.

The statement of Congressman Mate, which was the sole basis for the issuance of the search warrant, was replete with conclusions and inferences drawn from what he allegedly witnessed when he visited Mr. Quintero in the hospital. It lacked the directness and definiteness which would have been present, had the same statement dealt with facts which Congressman Mate actually witnessed. As held in one case, persons swearing to, or supporting the application for, search warrants, must set forth the facts that they know personally 10 and not the conclusions, or the beliefs of the affiant, so as to justify a reasonable and ordinarily prudent man, whose duty is to ascertain whether probable cause exists, to conclude that a violation of the law has occurred.

Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief. The facts recited in an affidavit supporting the application for a search warrant must be stated with sufficient definiteness, so that, if they are false, perjury may be assigned on the affidavit. 11 Hence, affidavits which go no further than to allege conclusions of law, or of fact, are insufficient.

Considering the generality of the statement of Congressman Mate, a judicious and prudent man would have attacked the statements made by the deponent, instead of asking leading questions, and conducting the examination in a general manner, like what the respondent judge did in the case at bar. As held in Nolasco vs. Pano, 12 the questions propounded by respondent Executive Judge to the applicant's witness are not sufficiently searching to establish probable cause. Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant.

Had the respondent judge been cautious in issuing the questioned search warrant, he would have wondered and, therefore, asked the affiant why said incident was reported only on 31 May 1972, when the latter allegedly witnessed it on 29 May 1972. Also, respondent judge should have questioned the statements of complainant Congressman Mate, and should have been alert to some ulterior motives on the part of the latter, considering that Congressman Mate's wife was one of those implicated in the "expose" made by Quintero. 13 An ulterior motive to an application for search warrant should alert the judge to possible misrepresentations. 14

Another circumstance which points to the nullity of the questioned search warrant, for having been issued without probable cause, is the fact that the search warrant delivered to the occupant of the searched premises, Generoso Quintero (nephew of the petitioner) was issued in connection with the offense of "grave threats" and not "direct bribery," which was the criminal complaint filed against Quintero with the respondent fiscal. The offense charged or labelled in the questioned search warrant had, therefore, no relation at all to the evidence, i.e., "half a million pesos, Philippine currency," ordered to be seized in said search warrant. There was thus no ground whatsoever for the respondent judge to claim that facts and circumstances had been established, sufficient for him to believe that the crime of "grave threats" had been committed, because, on the basis of the evidence alone, and what was ordered to

be seized in the search warrant he issued, no relation at all can be established between the crime supposedly committed (grave threats) and the evidence ordered to be seized.

It is true that the copy of the questioned search warrant that remained in the file of the respondent Judge, had been changed to indicate that the offense was that of direct bribery under Art. 210 of the Revised Penal Code. The change was effected by the deletion, in ink, of the typewritten words "grave threats" and the superimposition, in ink, of the figures "210" (Art. 210 of Revised Penal Code — Direct Bribery) over the typewritten figures "282" (Art. 282 of the Revised Penal Code — Grave Threats). The respondents claimed that these changes were made at the time the warrant was issued not after the search was made. But as admitted by respondents 15 the warrant in this case was prepared beforehand by the NBI, in an NBI form, 16 which stated only the name of the crime charged, but did not contain any description of the acts constituting the crime charged.

According to respondent judge, when the search warrant was presented to him by applicant NBI agent Samuel Castro, he saw that the crime charged was for "grave threats." But after he allegedly conducted his interrogations, he found that the proper charge should be "Direct Bribery." Hence he caused the proper changes in the search warrant, but inadvertently, he failed to make the proper changes in the sole copy that was presented by the NBI agents to Generoso Quintero, although the copy retained by the NBI agents had been corrected.

On the other hand, petitioner claimed that the changes in the questioned search warrant were made after the search was made. According to petitioner, his counsel, Atty. Ordonez who was present during the latter part of the raid-questioned in fact the materiality of the property being seized to the offense stated on the warrant, i.e., "grave threats." Consequently, if the copy in the possession of the raiding party had indeed been corrected before the search, the raiding party, would have been able to clear up the matter at once, when petitioner's counsel raised the question with them. However, the raiding party kept silent on the matter at that time, thereby negating their later pretenses.

Besides, the explanation given by the respondent judge as to the difference in the copy of the warrant served on the petitioner's representative and those retained by the respondents, cannot be given any weight, for no presumption of regularity in the performance of official functions can be invoked by a public officer, when he himself undertakes to justify his acts. 17 Furthermore, the Court notes the admission of the respondents that it was an NBI form which was used for the search warrant, and that it was pre-filled by the applicant, before it was presented to the respondent judge, but that, he (the judge) allegedly made the changes after he had conducted his examination. The Court considers the act of the respondent judge in entertaining a pre-filled search warrant as irregular; it casts doubt upon his impartiality.

Disregarding for a moment the absence of "probable cause," the search itself that was conducted by the NBI agents who raided the house of petitioner, pursuant to the questioned search warrant, was highly irregular. The two (2) occupants of the house who witnessed the search conducted, Generoso Quintero and Pfc. Alvaro Valentin, were closeted in a room where a search was being made by a member of the raiding party, while the other NBI agents were left to themselves in the other parts of the house, where no members of the household were in a position to watch them, and thus they conducted a search on their own.

Such a procedure, wherein members of a raiding party can roam around the raided premises unaccompanied by any witness, as the only witnesses available as prescribed by law are made to witness a search conducted by the other members of the raiding party in another part of the house, is held to be violative of both the spirit and the letter of the law, 18 which provides that "no search of a house, room, or any other premises shall be made except in the presence of at least one competent witness, resident of the neighborhood."

Another irregularity committed by the agents of respondent NBI was their failure to comply with the requirement of Sec. 10, Rule 126 of the Rules of Court which provides that "The officer seizing property under the warrant must give a detailed receipt for the same to the person on whom or in whose possession it was found, or in the absence of any person, must, in the presence of at least one-witness, leave a receipt in the place in which he found the seized property." The receipt issued by the seizing party in the case at bar, 19 showed that it was signed by a witness, Sgt. Ignacio Veracruz. This person was a policeman from the Manila Metropolitan Police (MMP), who accompanied the agents of respondent NBI during the conduct of the search, The requirement under the aforequoted Rule that a witness should attest to the making of the receipt, was not complied with. This requirement of the Rules was rendered nugatory, when the one who attested to the receipt from the raiding party was himself a member of the raiding party.

The circumstances prevailing before the issuance of the questioned search warrant, and the actual manner in which the search was conducted in the house of the petitioner, all but imperfectly, and yet, strongly suggest that the entire procedure, from beginning to end, was an orchestrated movement designed for just one purpose — to destroy petitioner Quintero's public image with "incriminating evidence," and, as a corollary to this, that the evidence allegedly seized from his residence was "planted" by the very raiding party that was commanded to "seize" such incriminating evidence.

ACCORDINGLY, the Court finds, and so holds, that the questioned search warrant issued by respondent judge, is null and void, for being violative of the Constitution and the Rules of Court.

WHEREFORE, Search Warrant No. 7 issued on 31 May 1972 by respondent Judge is declared NULL and VOID and of no force and effect. The Temporary Restraining Order issued by this Court on 6 June 1972 is hereby made PERMANENT The amount of P379,200.00 allegedly seized from the house of petitioner Quintero, now in the possession of the Central Bank, and already demonetized, is left with said Central Bank, to be disposed of, as such, in accordance with law and the regulations.

SO ORDERED.

20th Century Fox Film v. Court of Appeals, G.R. Nos. 76649-51, August 19, 1988

D E C I S I O N

(3rd

Division) GUTIERREZ, JR., J.: I. THE FACTS

Petitioner 20th Century Fox Film Corporation sought the assistance of the NBI in conducting searches and

seizures in connection with the NBI’s anti-film piracy campaign. Petitioner alleged that certain videotape outlets all over Metro Manila are engaged in the unauthorized sale and renting out of copyrighted films in violation of PD No. 49 (the old Intellectual Property Law).

The NBI conducted surveillance and investigation of the outlets pinpointed by the petitioner and subsequently filed three (3) applications for search warrants against the video outlets owned by the private respondents. The lower court issued the desired search warrants. The NBI, accompanied by the petitioner's agents, raided the video outlets and seized the items described in the three warrants.

Private respondents later filed a motion to lift the search warrants and release the seized properties, which

was granted by the lower court. Petitioner’s motion for reconsideration was denied by the lower court. The CA affirmed the trial court. II. THE ISSUE

Did the judge properly lift the search warrants he issued earlier? III. THE RULING

[The Court DISMISSED the petition and AFFIRMED the questioned decision and resolution of the CA.] YES, the judge properly lifted the search warrants he issued earlier. The lower court lifted the three (3) questioned search warrants in the absence of probable cause that the

private respondents violated P.D. 49. NBI agents who acted as witnesses during the application for search warrant did not have personal knowledge of the subject matter of their testimony, which was the alleged commission of the offense of piracy by the private respondents. Only the petitioner’s counsel who was also a witness during the application stated that he had personal knowledge that the confiscated tapes owned by the private respondents were pirated tapes taken from master tapes belonging to the petitioner. The lower court lifted the warrants, declaring

that the testimony of petitioner’s counsel did not have much credence because the master tapes of the allegedly pirated tapes were not shown to the court during the application.

The presentation of the master tapes of the copyrighted films, from which the pirated films were allegedly

copied, was necessary for the validity of search warrants against those who have in their possession the pirated films. The petitioner's argument to the effect that the presentation of the master tapes at the time of application may not be necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable cause exists to justify the issuance of the search warrants is not meritorious. The court cannot presume that duplicate or copied tapes were necessarily reproduced from master tapes that it owns.

The essence of a copyright infringement is the similarity or at least substantial similarity of the purported

pirated works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to compare them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter is an unauthorized reproduction of the former. This linkage of the copyrighted films to the pirated films must be established to satisfy the requirements of probable cause. Mere allegations as to the existence of the copyrighted films cannot serve as basis for the issuance of a search warrant.

THE PRESIDENTIAL ANTI-DOLLAR SALTING TASK FORCE, petitioner, vs. HONORABLE COURT OF APPEALS, HONORABLE TEOFILO L, GUADIZ, JR.,Presiding Judge, REGIONAL TRIAL COURT, Branch 147: NCR (MAKATI), and KARAMFIL IMPORT-EXPORT CO., INC., respondents.

K. V. Faylona & Associates for respondents.

SARMIENTO, J.:

The petitioner, the Presidential Anti-Dollar Salting Task Force, the President's arm assigned to investigate and prosecute so-called "dollar salting" activities in the country (per Presidential Decree No. 1936 as amended by Presidential Decree No. 2002), asks the Court to hold as null and void two Resolutions of the Court of Appeals, dated September 24, 1987 1 and May 20, 1988, 2 reversing its Decision, dated October 24, 1986. 3 The Decision set aside an Order, dated April 16, 1985, of the Regional Trial Court, 4 as well as its Order, dated August 21, 1985. The Resolution, dated September 24, 1987 disposed of, and granted, the private respondent Karamfil Import-Export Co., Inc.'s motion for reconsideration of the October 24, 1986 Decision; the Resolution dated May 20, 1988, in turn, denied the petitioner's own motion for reconsideration.

The facts are not in controversy. We quote:

On March 12, 1985, State Prosecutor Jose B. Rosales, who is assigned with the Presidential Anti-Dollar Salting Task Force hereinafter referred to as PADS Task Force for purposes of convenience, issued search warrants Nos. 156, 157, 158, 159, 160 and 161 against the petitioners Karamfil Import-Export Co., Inc., P & B Enterprises Co., Inc., Philippine Veterans Corporation, Philippine Veterans Development Corporation, Philippine Construction Development Corporation, Philippine Lauan Industries Corporation, Inter-trade Development (Alvin Aquino), Amelili U. Malaquiok Enterprises and Jaime P. Lucman Enterprises.

The application for the issuance of said search warrants was filed by Atty. Napoleon Gatmaytan of the Bureau of Customs who is a deputized member of the PADS Task Force. Attached to the said application is the affidavit of Josefin M. Castro who is an operative and investigator of the PADS Task Force. Said Josefin M. Castro is likewise the sole deponent in the purported deposition to support the application for the issuance of the six (6) search warrants involved in this case. The application filed by Atty. Gatmaytan, the affidavit and deposition of Josefin M. Castro are all dated March 12, 1985. 5

Shortly thereafter, the private respondent (the petitioner below) went to the Regional Trial Court on a petition to enjoin the implementation of the search warrants in question. 6 On March 13, 1985, the trial court issued a temporary restraining order [effective "for a period of five (5) days notice " 7 ] and set the case for hearing on March 18, 1985.

In disposing of the petition, the said court found the material issues to be:

1) Competency of this Court to act on petition filed by the petitioners;

2) Validity of the search warrants issued by respondent State Prosecutor;

3) Whether or not the petition has become moot and academic because all the search warrants sought to be quashed had already been implemented and executed. 8

On April 16, 1985, the lower court issued the first of its challenged Orders, and held:

WHEREFORE, in view of all the foregoing, the Court hereby declares Search Warrant Nos. 156, 157, 158, 159, 160, and 161 to be null and void. Accordingly, the respondents are hereby ordered to return and surrender immediately all the personal properties and documents seized by them from the petitioners by virtue of the aforementioned search warrants.

SO ORDERED. 9

On August 21, 1985, the trial court denied reconsideration.

On April 4, 1986, the Presidential Anti-Dollar Salting Task Force went to the respondent Court of Appeals to contest, on certiorari, the twin Order(s) of the lower court.

In ruling initially for the Task Force, the Appellate Court held:

Herein petitioner is a special quasi-judicial body with express powers enumerated under PD 1936 to prosecute foreign exchange violations defined and punished under P.D. No. 1883.

The petitioner, in exercising its quasi-judicial powers, ranks with the Regional Trial Courts, and the latter in the case at bar had no jurisdiction to declare the search warrants in question null and void.

Besides as correctly pointed out by the Assistant Solicitor General the decision of the Presidential Anti-Dollar Salting Task Force is appealable to the Office of the President.10

On November 12, 1986, Karamfil Import-Export Co., Inc. sought a reconsideration, on the question primarily of whether or not the Presidential Anti-Dollar Salting Task Force is "such other responsible officer' countenanced by the 1973 Constitution to issue warrants of search and seizure.

As we have indicated, the Court of Appeals, on Karamfil's motion, reversed itself and issued its Resolution, dated September 1987, and subsequently, its Resolution, dated May 20, 1988, denying the petitioner's motion for reconsideration.

In its petition to this Court, the petitioner alleges that in so issuing the Resolution(s) above-mentioned, the respondent Court of Appeals "committed grave abuse of discretion and/or acted in excess of its appellate jurisdiction," 11 specifically:

a) In deviating from the settled policy and rulings of the Supreme Court that no Regional Trial Courts may countermand or restrain the enforcement of lawful writs or decrees issued by a quasi-judicial body of equal and coordinate rank, like the PADS Task Force;

b) For resorting to judicial legislation to arrive at its erroneous basis for reconsidering its previous Decision dated October 24, 1986 (see Annex "I") and thus promulgated the questioned Resolutions (Annexes "A" and "B"), which violated the constitutional doctrine on separation of powers;

c) In not resolving directly the other important issues raised by the petitioner in its Petition in CA-G.R. No. 08622-SP despite the fact that petitioner has demonstrated sufficiently and convincingly

that respondent RTC, in issuing the questioned Orders in Special Proceeding No. M-624 (see Annexes "C" and 'D"), committed grave abuse of discretion and/or acted in excess of jurisdiction:

1. In ruling that (a) the description of the things to be seized as stated in the contested search warrant were too general which allegedly render the search warrants null and void; (b) the applications for the contested search warrants actually charged two offenses in contravention of the 2nd paragraph, Section 3, Rule 126 of the Rules of Court; and (c) this case has not become moot and academic, even if the contested search warrants had already been fully implemented with positive results; and

2. In ruling that the petitioner PADS Task Force has not been granted under PD 1936 'judicial or quasi-judicial jurisdiction. 12

We find, upon the foregoing facts, that the essential questions that confront us are- (i) is the Presidential Anti-Dollar Salting Task Force a quasi-judicial body, and one co-equal in rank and standing with the Regional Trial Court, and accordingly, beyond the latter's jurisdiction; and (ii) may the said presidential body be said to be "such other responsible officer as may be authorized by law" to issue search warrants under the 1973 Constitution questions we take up seriatim.**

In submitting that it is a quasi-judicial entity, the petitioner states that it is endowed with "express powers and functions under PD No. 1936, to prosecute foreign exchange violations as defined and punished under PD No. 1883." 13 "By the very nature of its express powers as conferred by the laws," so it is contended, "which are decidedly quasi-judicial or discretionary function, such as to conduct preliminary investigation on the charges of foreign exchange violations, issue search warrants or warrants of arrest, hold departure orders, among others, and depending upon the evidence presented, to dismiss the charges or to file the corresponding information in court of Executive Order No. 934, PD No. 1936 and its Implementing Rules and Regulations effective August 26, 1984), petitioner exercises quasi-judicial power or the power of adjudication ." 14

The Court of Appeals, in its Resolution now assailed, 15 was of the opinion that "[t]he grant of quasi-judicial powers to petitioner did not diminish the regular courts' judicial power of interpretation. The right to interpret a law and, if necessary to declare one unconstitutional, exclusively pertains to the judiciary. In assuming this function, courts do not proceed on the theory that the judiciary is superior to the two other coordinate branches of the government, but solely on the theory that they are required to declare the law in every case which come before them." 16

This Court finds the Appellate Court to be in error, since what the petitioner puts to question is the Regional Trial Court's act of assuming jurisdiction over the private respondent's petition below and its subsequent countermand of the Presidential Anti-Dollar Salting Task Force's orders of search and seizure, for the reason that the presidential body, as an entity (allegedly) coordinate and co-equal with the Regional Trial Court, was (is) not vested with such a jurisdiction. An examination of the Presidential Anti-Dollar Salting Task Force's petition shows indeed its recognition of judicial review (of the acts of Government) as a basic privilege of the courts. Its objection, precisely, is whether it is the Regional Trial Court, or the superior courts, that may undertake such a review.

Under the Judiciary Reorganization Act of 1980, 17 the Court of Appeals exercises:

(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Court and quasi-judicial agencies, instrumentalities, boards or commissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948. 18

xxx xxx xxx

Under the present Constitution, with respect to its provisions on Constitutional Commissions, it is provided, in part that:

... Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. 19

On the other hand, Regional Trial Courts have exclusive original jurisdiction:

(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions. 20

xxx xxx xxx

Likewise:

... The Supreme Court may designate certain branches of the Regional Trial Court to handle exclusively criminal cases, juvenile and domestic relations cases, agrarian case, urban land reform cases which do not fall under the jurisdiction of quasi- judicial bodies and agencies and/or such other special cases as the Supreme Court may determine in the interest of a speedy and efficient administration of justice. 21

xxx xxx xxx

Under our Resolution dated January 11, 1983: 22

... The appeals to the Intermediate Appellate Court [now, Court of Appeals] from quasi-judicial bodies shall continue to be governed by the provisions of Republic Act No. 5434 insofar as the same is not inconsistent with the provisions of B.P. Blg. 129. 23

The pertinent provisions of Republic Act No. 5434 are as follows:

SECTION 1. Appeals from specified agencies.— Any provision of existing law or Rule of Court to the contrary notwithstanding, parties aggrieved by a final ruling, award, order, decision, or judgment of the Court of Agrarian Relations; the Secretary of Labor under Section 7 of Republic Act Numbered Six hundred and two, also known as the "Minimum Wage Law"; the Department of Labor under Section 23 of Republic Act Numbered Eight hundred seventy-five, also known as the "Industrial Peace Act"; the Land Registration Commission; the Securities and Exchange Commission; the Social Security Commission; the Civil Aeronautics Board; the Patent Office and the Agricultural Inventions Board, may appeal therefrom to the Court of Appeals, within the period and in the manner herein provided, whether the appeal involves questions of fact, mixed questions of fact and law, or questions of law, or all three kinds of questions. From final judgments or decisions of the Court of Appeals, the aggrieved party may appeal by certiorari to the Supreme Court as provided in Rule 45 of the Rules of Court. 24

Because of subsequent amendments, including the abolition of various special courts, 25 jurisdiction over quasi-judicial bodies has to be, consequently, determined by the corresponding amendatory statutes. Under the Labor Code, decisions and awards of the National Labor Relations Commission are final and executory, but, nevertheless, 'reviewable by this Court through a petition for certiorari and not by way of appeal." 26

Under the Property Registration Decree, decisions of the Commission of Land Registration, en consults, are appealable to the Court of Appeals. 27

The decisions of the Securities and Exchange Commission are likewise appealable to the Appellate Court, 28 and so are decisions of the Social Security Commission.29

As a rule, where legislation provides for an appeal from decisions of certain administrative bodies to the Court of Appeals, it means that such bodies are co-equal with the Regional Trial Courts, in terms of rank and stature, and logically, beyond the control of the latter.

As we have observed, the question is whether or not the Presidential Anti-Dollar Salting Task Force is, in the first place, a quasi-judicial body, and one whose decisions may not be challenged before the regular courts, other than the higher tribunals the Court of Appeals and this Court.

A quasi-judicial body has been defined as "an organ of government other than a court and other than a legislature, which affects the rights of private parties through either adjudication or rule making." 30 The most common types of such bodies have been listed as follows:

(1) Agencies created to function in situations wherein the government is offering some gratuity, grant, or special privilege, like the defunct Philippine Veterans Board, Board on Pensions for Veterans, and NARRA, and Philippine Veterans Administration.

(2) Agencies set up to function in situations wherein the government is seeking to carry on certain government functions, like the Bureau of Immigration, the Bureau of Internal Revenue, the Board of Special Inquiry and Board of Commissioners, the Civil Service Commission, the Central Bank of the Philippines.

(3) Agencies set up to function in situations wherein the government is performing some business service for the public, like the Bureau of Posts, the Postal Savings Bank, Metropolitan Waterworks & Sewerage Authority, Philippine National Railways, the Civil Aeronautics Administration.

(4) Agencies set up to function in situations wherein the government is seeking to regulate business affected with public interest, like the Fiber Inspections Board, the Philippine Patent Office, Office of the Insurance Commissioner.

(5) Agencies set up to function in situations wherein the government is seeking under the police power to regulate private business and individuals, like the Securities & Exchange Commission, Board of Food Inspectors, the Board of Review for Moving Pictures, and the Professional Regulation Commission.

(6) Agencies set up to function in situations wherein the government is seeking to adjust individual controversies because of some strong social policy involved, such as the National Labor Relations Commission, the Court of Agrarian Relations, the Regional Offices of the Ministry of Labor, the Social Security Commission, Bureau of Labor Standards, Women and Minors Bureau. 31

As may be seen, it is the basic function of these bodies to adjudicate claims and/or to determine rights, and unless its decision are seasonably appealed to the proper reviewing authorities, the same attain finality and become executory. A perusal of the Presidential Anti-Dollar Salting Task Force's organic act, Presidential Decree No. 1936, as amended by Presidential Decree No. 2002, convinces the Court that the Task Force was not meant to exercise quasi-judicial functions, that is, to try and decide claims and execute its judgments. As the President's arm called upon to combat the vice of "dollar salting" or the blackmarketing and salting of foreign exchange, 32 it is tasked alone by the Decree to handle the prosecution of such activities, but nothing more. We quote:

SECTION 1. Powers of the Presidential Anti-Dollar Salting Task Force.-The Presidential Anti-Dollar Salting Task Force, hereinafter referred to as Task Force, shall have the following powers and authority:

a) Motu proprio or upon complaint, to investigate and prosecute all dollar salting activities, including the overvaluation of imports and the undervaluation of exports;

b) To administer oaths, summon persons or issue subpoenas requiring the attendance and testimony of witnesses or the production of such books, papers, contracts, records, statements of accounts, agreements, and other as may be necessary in the conduct of investigation;

c) To appoint or designate experts, consultants, state prosecutors or fiscals, investigators and hearing officers to assist the Task Force in the discharge of its duties and responsibilities; gather data, information or documents; conduct hearings, receive evidence, both oral and documentary, in all cases involving violation of foreign exchange laws or regulations; and submit reports containing findings and recommendations for consideration of appropriate authorities;

d) To punish direct and indirect contempts with the appropriate penalties therefor under Rule 71 of the Rules of Court; and to adopt such measures and take such actions as may be necessary to implement this Decree.

xxx xxx xxx

f. After due investigation but prior to the filing of the appropriate criminal charges with the fiscal's office or the courts as the case may be, to impose a fine and/or administrative sanctions as the circumstances warrant, upon any person found committing or to have committed acts constituting blackmarketing or salting abroad of foreign exchange, provided said person voluntarily admits the facts and circumstances constituting the offense and presents proof that the foreign exchange retained abroad has already been brought into the country.

Thereafter, no further civil or criminal action may be instituted against said person before any other judicial regulatory or administrative body for violation of Presidential Decree No. 1883.

The amount of the fine shall be determined by the Chairman of the Presidential Anti- Dollar Salting Task Force and paid in Pesos taking into consideration the amount of foreign exchange retained abroad, the exchange rate differentials, uncollected taxes and duties thereon, undeclared profits, interest rates and such other relevant factors.

The fine shall be paid to the Task Force which shall retain Twenty percent (20 %) thereof. The informer, if any, shall be entitled to Twenty percent (20 %) of the fine. Should there be no informer, the Task Force shall be entitle to retain Forty percent (40 %) of the fine and the balance shall accrue to the general funds of the National government. The amount of the fine to be retained by the Task Force shall form part of its Confidential Fund and be utilized for the operations of the Task Force . 33

The Court sees nothing in the aforequoted provisions (except with respect to the Task Force's powers to issue search warrants) that will reveal a legislative intendment to confer it with quasi-judicial responsibilities relative to offenses punished by Presidential Decree No. 1883. Its undertaking, as we said, is simply, to determine whether or not probable cause exists to warrant the filing of charges with the proper court, meaning to say, to conduct an inquiry preliminary to a judicial recourse, and to recommend action "of appropriate authorities". It is not unlike a fiscal's office that conducts a preliminary investigation to determine whether or not prima facie evidence exists to justify haling the respondent to court, and yet, while it makes that determination, it cannot be said to be acting as a quasi-court. For it is the courts, ultimately, that pass judgment on the accused, not the fiscal.

It is not unlike the Presidential Commission on Good Government either, the executive body appointed to investigate and prosecute cases involving "ill-gotten wealth". It had been vested with enormous powers, like the issuance of writs of sequestration, freeze orders, and similar processes, but that did not, on account thereof alone, make it a quasi-judicial entity as defined by recognized authorities. It cannot pronounce judgement of the accused's culpability, the jurisdiction to do which is exclusive upon the Sandiganbayan. 34

If the Presidential Anti-Dollar Salting Task Force is not, hence, a quasi-judicial body, it cannot be said to be co-equal or coordinate with the Regional Trial Court. There is nothing in its enabling statutes that would demonstrate its standing at par with the said court.

In that respect, we do not find error in the respondent Court of Appeal's resolution sustaining the assumption of jurisdiction by the court a quo.

It will not do to say that the fact that the Presidential Task Force has been empowered to issue warrants of arrest, search, and seizure, makes it, ergo, a "semi-court". Precisely, it is the objection interposed by the private respondent, whether or not it can under the 1973 Charter, issue such kinds of processes.

It must be observed that under the present Constitution, the powers of arrest and search are exclusive upon judges. 35 To that extent, the case has become moot and academic. Nevertheless, since the question has been specifically put to the Court, we find it unavoidable to resolve it as the final arbiter of legal controversies, pursuant to the provisions of the 1973 Constitution during whose regime the case was commenced.

Since the 1973 Constitution took force and effect and until it was so unceremoniously discarded in 1986, its provisions conferring the power to issue arrest and search warrants upon an officer, other than a judge, by fiat of legislation have been at best controversial. In Lim v. Ponce de Leon, 36 a 1975 decision, this Court ruled that a fiscal has no authority to issue search warrants, but held in the same vein that, by virtue of the responsible officer" clause of the 1973 Bill of Rights, "any lawful officer authorized by law can issue a search warrant or warrant of

arrest.37 Authorities, however, have continued to express reservations whether or not fiscals may, by statute, be given such a power. 38

Less than a year later, we promulgated Collector of Customs v. Villaluz, 39 in which we categorically averred: Until now only the judge can issue the warrant of arrest." 40 "No law or presidential decree has been enacted or promulgated vesting the same authority in a particular responsible officer ." 41

Apparently, Villaluz had settled the debate, but the same question persisted following this Courts subsequent rulings upholding the President's alleged emergency arrest powers .42 [Mr. Justice Hugo Gutierrez would hold, however, that a Presidential Commitment Order (PCO) is (was) not a species of "arrest" in its technical sense, and that the (deposed) Chief Executive, in issuing one, does not do so in his capacity as a "responsible officer" under the 1973 Charter, but rather, as Commander-in-Chief of the Armed Forces in times of emergency, or in order to carry out the deportation of undesirable aliens.43 In the distinguished Justice's opinion then, these are acts that can be done without need of judicial intervention because they are not, precisely, judicial but Presidential actions.]

In Ponsica v. Ignalaga,44 however, we held that the mayor has been made a "responsible officer' by the Local Government Code, 45 but had ceased to be one with the approval of the 1987 Constitution according judges sole authority to issue arrest and search warrants. But in the same breath, we did not rule the grant under the Code unconstitutional based on the provisions of the former Constitution. We were agreed, though, that the "responsible officer" referred to by the fundamental law should be one capable of approximating "the cold neutrality of an impartial judge." 46

In striking down Presidential Decree No. 1936 the respondent Court relied on American jurisprudence, notably,Katz v. United States, 47 Johnson v. United States, 48 and Coolidge v. New Hampshire 49 in which the American Supreme Court ruled that prosecutors (like the petitioner) cannot be given such powers because of their incapacity for a "detached scrutiny" 50 of the cases before them. We affirm the Appellate Court.

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was meant to exercise, prosecutorial powers, and on that ground, it cannot be said to be a neutral and detached "judge" to determine the existence of probable cause for purposes of arrest or search. Unlike a magistrate, a prosecutor is naturally interested in the success of his case. Although his office "is to see that justice is done and not necessarily to secure the conviction of the person accused," 51 he stands, invariably, as the accused's adversary and his accuser. To permit him to issue search warrants and indeed, warrants of arrest, is to make him both judge and jury in his own right, when he is neither. That makes, to our mind and to that extent, Presidential Decree No. 1936 as amended by Presidential Decree No. 2002, unconstitutional.

It is our ruling, thus, that when the 1973 Constitution spoke of "responsible officer" to whom the authority to issue arrest and search warrants may be delegated by legislation, it did not furnish the legislator with the license to give that authority to whomsoever it pleased. It is to be noted that the Charter itself makes the qualification that the officer himself must be "responsible". We are not saying, of course, that the Presidential Anti-Dollar Salting Task Force (or any similar prosecutor) is or has been irresponsible in discharging its duty. Rather, we take "responsibility", as used by the Constitution, to mean not only skill and competence but more significantly, neutrality and independence comparable to the impartiality presumed of a judicial officer. A prosecutor can in no manner be said to be possessed of the latter qualities.

According to the Court of Appeals, the implied exclusion of prosecutors under the 1973 Constitution was founded on the requirements of due process, notably, the assurance to the respondent of an unbiased inquiry of the charges against him prior to the arrest of his person or seizure of his property. We add that the exclusion is also demanded by the principle of separation of powers on which our republican structure rests. Prosecutors exercise essentially an executive function (the petitioner itself is chaired by the Minister, now Secretary, of Trade and Industry), since under the Constitution, the President has pledged to execute the laws. 52 As such, they cannot be made to issue judicial processes without unlawfully impinging the prerogative of the courts.

At any rate, Ponsica v. Ignalaga should foreclose all questions on the matter, although the Court hopes that this disposition has clarified a controversy that had generated often bitter debates and bickerings.

The Court joins the Government in its campaign against the scourge of "dollar- salting", a pernicious practice that has substantially drained the nation's coffers and has seriously threatened its economy. We recognize the menace it

has posed (and continues to pose) unto the very stability of the country, the urgency for tough measures designed to contain if not eradicate it, and foremost, the need for cooperation from the citizenry in an all-out campaign. But while we support the State's efforts, we do so not at the expense of fundamental rights and liberties and constitutional safeguards against arbitrary and unreasonable acts of Government. If in the event that as a result of this ruling, we prove to be an "obstacle" to the vital endeavour of stamping out the blackmarketing of valuable foreign exchange, we do not relish it and certainly, do not mean it. The Constitution simply does not leave us much choice.

WHEREFORE, the petition is DISMISSED. No costs. SO ORDERED.

ERLE PENDON, for himself and as Managing Partner of KENER TRADING COMPANY,Petitioner, v. THE COURT OF APPEALS, HON. ENRIQUE T. JOCSON in his capacity as Presiding Judge of Branch 47, Regional Trial Court of

Negros Occidental, FISCAL ALEXANDER N. MIRANO, in his capacity as City Fiscal of Bacolod City and THE

PROVINCIAL COMMANDER OF THE 331st PC COMPANY, BACOLOD CITY, Respondents.

Ledesma, Guinez, Causing, Espino & Serfino Law Office for Petitioner.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH WARRANT; PROBABLE CAUSE; DEFINITION AND REQUISITES THEREOF. — The right against unreasonable searches and seizures is guaranteed under Article III (Bill of Rights), Section 2 of the 1987 Constitution of the Philippines. Under this provision, the issuance of a search warrant is justified only upon a finding of probable cause. Probable cause for a search has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched (Burgos, Sr. v. Chief of Staff, G.R. No. 64261, Dec. 26, 1984, 133 SCRA 800).

In determining the existence of probable cause, it is required that: 1) the judge (or) officer must examine the . . witnesses personally; 2) the examination must be under oath; and (3) the examination must be reduced to writing in the form of searching questions and answers (Marinas v. Sioco, 104 SCRA 403, Ponsica v. Ignalaga, G.R. No. 72301, July 31, 1987, 152 SCRA 647). These requirements are provided under Section 4, Rule 126 of the New Rules of Criminal Procedure. 2. ID.; ID.; ID.; ID.; FINDING OR OPINION THEREOF BY THE EXAMINING JUDGE, MUST BE SUPPORTED BY THE RECORD; NOT OBSERVED IN THE CASE AT BAR. — It has been ruled that the existence of probable cause depends to a large degree upon the finding or opinion of the judge conducting the examination (Luna v. Plaza, G.R. No. L-27511, Nov. 29, 1968), however, the opinion or finding of probable cause must, to a certain degree, be substantiated or supported by the record. In this case, We find that the requirement mandated by the law and the rules that the judge must personally examine the applicant and his witnesses in the form of searching questions and answers before issuing the warrant, was not sufficiently complied with. The applicant himself was not asked any searching question by Judge Magallanes. The records disclose that

the only part played by the applicant, Lieutenant Rojas was to subscribe the application before Judge Magallanes. The application contained pre-typed questions, none of which stated that applicant had personal knowledge of a robbery or a theft and that the proceeds thereof are in the possession and control of the person against whom the search warrant was sought to be issued. In the case of Roan v. Gonzales, G.R. No. 71410, Nov. 25, 1986, 145 SCRA 687, citing the case of Mata v. Bayona, G.R. No. 50720, March 26, 1984, 128 SCRA 388, where the applicant himself was not subjected to an interrogation but was questioned only "to ascertain, among others, if he knew and understood (his affidavit) and only because the application was not yet subscribed and sworn to," We held that: "It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro forma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application."cralaw virtua1aw library

3. ID.; ID.; ID.; ARTICLES SOUGHT TO BE SEIZED, MUST BE DESCRIBED WITH PARTICULARITY. — Another infirmity of Search Warrant No. 181 is its generality. The law requires that the articles sought to be seized must be described with particularity. The items listed in the warrant, to wit: "NAPOCOR Galvanized bolts, grounding motor drive assembly, aluminum wires and other NAPOCOR Towers parts and line accessories" are so general that the searching team can practically take half of the business of Kener Trading, the premises searched. Kener Trading, as alleged in petitioner’s petition before respondent Court of Appeals and which has not been denied by respondent, is engaged in the business of buying and selling scrap metals, second hand spare parts and accessories and empty bottles. Far more important is that the items described in the application do not fall under the list of personal property which may be seized under Section 2, Rule 126 of the Rules on Criminal Procedure because neither the application nor the joint deposition alleged that the item/s sought to be seized were: a) the subject of an offense; b) stolen or embezzled property and other proceeds or fruits of an offense; and c) used or intended to be used as a means of committing an offense.

4. ID.; ID.; ID.;SEIZURE OF INCRIMINATING ARTICLES, CANNOT VALIDATE AN INVALID WARRANT. — No matter how incriminating the articles taken from the petitioner may be, their seizure cannot validate an invalid warrant. Again, in the case of Mata v. Bayona, G.R. No. 50720, March 26, 1984, 128 SCRA 388: ". . . that nothing can justify the issuance of the search warrant but the fulfillment of the legal requisites. It might be well to point out what has been said in Asian Surety &

Insurance Co., Inc. v. Herrera: ‘It has been said that of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books and papers from inspection and scrutiny of others. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government." "Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the Constitution and the statutory

provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumption of regularity are to be invoked in aid of the process when an officer undertakes to justify it."

D E C I S I O N

MEDIALDEA, J.:

This petition for review on certiorari seeks to set aside the decision (pp. 38-42, Rollo) of respondent Court of Appeals which affirmed the orders dated August 24, 1987 (p. 43, Record) and October 14, 1987, (pp. 53-54, Record) of the Regional Trial Court of Negros Occidental in Criminal Case No. 5657.

On February 4, 1987, First Lieutenant Felipe L. Rojas, Officer-in-Charge of the Philippine Constabulary-Criminal Investigation Service (PC-CIS), Bacolod City, filed an application for a search warrant, alleging:jgc:chanrobles.com.ph "x x x. "That he was informed and verily believes that KENNETH SIAO who may be found at KENER TRADING located at Rizal Street corner Lacson Street, Bacolod City has/have in her/his/their possession and control the following property/ies, to wit: jgc:chanrobles.com.ph "NAPOCOR Galvanized bolts, grounding motor drive assembly; aluminum wires and other NAPOCOR Tower parts and line accessories. which he/she/they is/are concealing in the premises above mentioned.

"The undersigned has verified the report and found it to be the fact and has therefore reasons to believe that a SEARCH WARRANT should be issued to enable the undersigned or any agent of the law to take possession and bring the following described property/ies, to wit:jgc:chanrobles.com.ph "NAPOCOR Galvanized bolts; grounding motor drive assembly; aluminum wires and other NAPOCOR Tower parts and line accessories. "WHEREFORE, the undersigned prays this Honorable Court to issue a SEARCH WARRANT commanding any peace officer to search the premises/house described in this application and to seize and bring to this Honorable Court the person/property/ies above-mentioned to be dealt with as the law may direct.

Bacolod City, Philippines Feb. 4, 1987 —. SGD. FELIPE L. ROJAS, JR. ILT, PC OIC, PFOCIS, Bacolod City" (p. 18, Records)

The application was subscribed before Judge Demosthenes D. Magallanes of the Municipal Trial Court of Bacolod City and supported by the joint deposition of two (2) witnesses, Ignacio L. Reyes, an employee of NAPOCOR (National Power Corporation) and IAI Eduardo Abaja of the CIS of Bacolod City, quoted as follows:chanrobles.com:cra law:red "We, Ignacio L. Reyes and IAI Eduardo Abaja, CIS after having been duly sworn to, testify as follows: jgc:chanrobles.com.ph "1. QUESTION: What are your names and other personal circumstances? "ANSWER: IGNACIO L. REYES, 34 years old, married, an employee of NAPOCOR and presently residing at Eroreco Subdivision, Bacolod City and AIA EDUARDO ABAJA, CIS, regular member of the CO/INP CIS Command, Bacolod City.

"2. QUESTION: Do you know the premises/house of KENNETH SIAO located at Rizal Street, near cor. Lacson St., Bacolod City? "ANSWER: Yes, Sir. "3. QUESTION: Do you have personal knowledge that said KENNETH SIAO who may be found in the said premises/house

has/have in his/her/their possession and control the following property, to wit:jgc: chanrobles.com.ph "NAPOCOR Galvanized bolts, grounding motor drive assembly, aluminum wires and other NAPOCOR Tower parts and line accessories? "ANSWER: Yes, sir. "4. QUESTION: How do you know that above-described property/ies is/are being kept in said premises/house? "ANSWER: We conducted surveillance and we were able to purchase some of these items. "IN WITNESS WHEREOF, we hereunto set our hands and affixed our signature this 4th day of Feb. 1987 at Bacolod City,

Philippines. "SGD. IGNACIO L. REYES SGD. EDUARDO J. ABAJA Affiant Affiant SUBSCRIBED AND SWORN to, before me this 4th day of Feb. 1987 at Bacolod City, Philippines. SGD. DEMOSTHENES L. MAGALLANES Judge MUNICIPAL TRIAL COURT

BACOLOD CITY" (p. 19, Record) On the basis of the foregoing application and joint deposition, Judge Magallanes issued Search Warrant No. 181, commanding the search of the property described in the warrant. Subsequently, constabulary officers stationed in Bacolod City conducted a search of the premises described in the search warrant and seized the following articles, to wit: 1) 272 kilos of galvanized bolts, V chuckle and U-bolts; and 2) 3 and 1/2 feet angular bar. The receipt was signed by Digno Mamaril, PC Sergeant and marked "from Kenneth Siao" (p. 21, Record).

A complaint for violation of the Anti-Fencing Law (P.D. 1612) was filed against Kenneth Siao with the office of the City Fiscal by the National Power Corporation. Thereafter, Siao filed a counter-affidavit alleging that he had previously relinquished all his rights and ownership over the Kener Trading to herein petitioner Erle Pendon. In a resolution (pp. 22-23, Record) dated May 18, 1987, the office of the City Fiscal recommended the dismissal of the complaint against Siao and the filing of a complaint for the same violation against petitioner. On the same day, a complaint (p. 24, Record) for Violation of the Anti-Fencing Law was filed against petitioner and docketed as Criminal Case No. 5657 of the Regional Trial Court of Negros Occidental. The case was raffled to Branch 47 of the same court presided over by respondent Judge Enrique T. Jocson. Before his arraignment, petitioner filed on July 9, 1987, an application for the return of the articles seized by virtue of Search Warrant No. 181 (pp. 26-29, Record) on the ground that the said search warrant was illegally issued. The prosecuting fiscal filed an opposition to the application (pp. 31-32, Record). The application was subsequently amended to an application for quashal of the illegally-issued search warrant and for the return of the articles seized by virtue thereof (pp. 33-38, Records).

On August 24, 1987, respondent Judge Jocson issued an order impliedly denying the application for the quashal of the search warrant without ruling on the issue of the validity of the issuance thereof. The order states:jgc:chanrobles.com.ph "Counsel for accused having admitted in the hearing in open court that at least one of the seized items bears the identifying mark of the complainant National Power Corporation, and there being no statement that the seized items were acquired in usual course of business for value, this court is constrained to have the case tried without resolving whether or not the questioned search warrant was issued validly." (p. 43, Records) A motion for reconsideration was filed by petitioner but it was denied on October 14, 1987 (p. 11, Rollo).

On October 20, 1987, petitioner filed with the Court of Appeals a petition for certiorari, prohibition and mandamus with a prayer for a restraining order, assailing the legality of search warrant No. 181 and praying for the permanent prohibition against the use in evidence of the articles and properties seized and the return thereof to petitioner. On April 4, 1988, respondent Court of Appeals dismissed the petition. The appellate court found the existence of a probable cause to justify the issuance of the search warrant. The respondent court held:jgc:chanrobles.com.ph

"x x x "For reasons indicated, We hold that the evidence was sufficient to sustain the validity of the issuance of the Search Warrant No. 181 and to sustain further the ruling of the respondent trial court in denying the petition for the return of the articles and personal properties seized thereunder.

"WHEREFORE, this petition is hereby DISMISSED, with costs against petitioner. The previous order to maintain the status quo is hereby withdrawn and set aside. "SO ORDERED." (p. 41, Rollo) The motion for reconsideration of the above decision filed by petitioner on May 2, 1988 was denied in a resolution (p. 49, Rollo) dated July 21, 1988. The basic issue raised in this petition is the legality of the issuance of Search Warrant No. 181. It is the contention of petitioner that the application for the search warrant and the joint deposition of the witnesses miserably failed to fulfill the requirements prescribed by the Constitution and the rules.

The petitioner argues that the application of 1st Lt. Rojas and the joint deposition of Abaja and Reyes failed to comply with the requisites of searching questions and answers. The joint deposition of the witnesses showed that the questions therein were pretyped, mimeographed and the answers of the witnesses were merely filled-in. No examination of the applicant and of the joint deponents was personally conducted by Judge Magallanes as required by law and the rules. Additionally, petitioner also contends that both the application of Rojas and the joint deposition of Abaya and Reyes show that neither of the affiants had personal knowledge that any specific offense was committed by petitioner or that the articles sought to be seized were stolen or that being so, they were brought to Kenneth Siao.chanrobles virtualawlibra ry chanrobles.com:chanrobles.com.ph Lastly, the petitioner contends that, even assuming for the sake of polemics, that the articles belong to the latter, his Constitutional right prevails over that of NAPOCOR.

The right against unreasonable searches and seizures is guaranteed under Article III (Bill of Rights), Section 2 of the 1987 Constitution of the Philippines which provides:jgc: chanrobles.com.ph "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 alter 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."cra law virtua1aw libra ry Under the above provision, the issuance of a search warrant is justified only upon a finding of probable cause. Probable cause

for a search has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched (Burgos, Sr. v. Chief of Staff, G.R. No. 64261, Dec. 26, 1984, 133 SCRA 800). In determining the existence of probable cause, it is required that: 1) the judge (or) officer must examine the . . witnesses personally; 2) the examination must be under oath; and (3) the examination must be reduced to writing in the form of searching questions and answers (Marinas v. Sioco, 104 SCRA 403, Ponsica v. Ignalaga, G.R. No. 72301, July 31, 1987, 152 SCRA 647). These requirements are provided under Section 4, Rule 126 of the New Rules of Criminal Procedure which states: "Sec. 4. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted." cralaw virtua1aw libra ry It has been ruled that the existence of probable cause depends to a large degree upon the finding or opinion of the judge

conducting the examination (Luna v. Plaza, G.R. No. L-27511, Nov. 29, 1968), however, the opinion or finding of probable cause must, to a certain degree, be substantiated or supported by the record. In this case, We find that the requirement mandated by the law and the rules that the judge must personally examine the applicant and his witnesses in the form of searching questions and answers before issuing the warrant, was not sufficiently complied with. The applicant himself was not asked any searching question by Judge Magallanes. The records disclose that the only part played by the applicant, Lieutenant Rojas was to subscribe the application before Judge Magallanes. The application contained pre-typed questions, none of which stated that applicant had personal knowledge of a robbery or a theft and that the proceeds thereof are in the possession and control of the person against whom the search warrant was sought to be issued. In the case of Roan v. Gonzales, G.R. No. 71410, Nov. 25, 1986, 145 SCRA 687, citing the case of Mata v. Bayona, G.R. No. 50720, March 26, 1984, 128 SCRA 388, where the applicant himself was not subjected to an

interrogation but was questioned only "to ascertain, among others, if he knew and understood (his affidavit) and only because the application was not yet subscribed and sworn to," We held that:jgc:chanrobles.com.ph "Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record. Such written deposition is

necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it will be found later that his declarations are false.’ "x x x "It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro forma, if the claimed

probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application." (Emphasis supplied; p. 695) Likewise, the joint deposition made by the two (2) witnesses presented by the applicant can hardly satisfy the same requirement. The public respondent prosecutor admitted in his memorandum that the questions propounded were pre-typed.chanrobles.com.ph : virtua l law libra ry The offense which petitioner was sought to be charged was violation of the anti-fencing law which punishes the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy or sell, or in any other manner deal in any article, item, object or anything of value which he knows, or should have known to him, to have been derived from the proceeds of the crime of robbery or theft (Sec. 2a, P.D. 1612). The four (4) questions propounded could hardly support a finding of probable cause. The first question was on the personal

circumstances of the deponents. The second and third were leading questions answerable by yes or no. The fourth question was on how the deponents knew about their answers in the second and third questions. The judge could have exploited this last question to convince himself of the existence of a probable cause but he did not. There was also no statement in the joint deposition that the articles sought to be seized were derived from the proceeds of the crime of robbery or a theft or that applicants have any knowledge that a robbery or theft was committed and the articles sought to be seized were the proceeds thereof. It was not even shown what connection Kenneth Siao has with Kener Trading or with the premises sought to be searched. By and large, neither the application nor the joint deposition provided facts or circumstance which could lead a prudent man to believe that an offense had been committed and that the objects sought in connection with the offense, if any, are in the possession of the person named in the application. ". . . [T]he searching questions propounded to the applicants of the search warrant and his witnesses must depend to a large extent upon the discretion of the Judge just as long as the answers establish a reasonable ground to believe the commission

of a specific offense and that the applicant is one authorized by law, and said answers particularly describe with certainty the place to be searched and the persons or things to be seized. The examination or investigation which must be under oath may not be in public. It may even be held in the secrecy of his chambers. Far more important is that the examination or investigation is not merely routinary but one that is thorough and elicit the required information. To repeat, it must be under oath and must be in writing. (Mata v. Bayona, 50720, March 26, 1984, 128 SCRA 388) (Emphasis supplied) And, in Quintero v. NBI, G.R. No. L-35149, June 23, 1988, 162 SCRA 467, 483:jgc:chanrobles.com.ph "As held in Nolasco v. Paño No. 69803, October 8, 1985, 139 SCRA 163), the questions propounded by respondent Executive Judge to the applicant’s witness are not sufficiently searching to establish probable cause. Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the

requirements for issuance of a valid search warrant."cralaw virtua1aw libra ry Another infirmity of Search Warrant No. 181 is its generality. The law requires that the articles sought to be seized must be described with particularity. The items listed in the warrant, to wit: "NAPOCOR Galvanized bolts, grounding motor drive assembly, aluminum wires and other NAPOCOR Towers parts and line accessories" are so general that the searching team can practically take half of the business of Kener Trading, the premises searched. Kener Trading, as alleged in petitioner’s petition before respondent Court of Appeals and which has not been denied by respondent, is engaged in the business of buying and selling scrap metals, second hand spare parts and accessories and empty bottles. Far more important is that the items described in the application do not fall under the list of personal property which may be seized under Section 2, Rule 126 of the Rules on Criminal Procedure because neither the application nor the joint deposition alleged that the item/s sought to be seized were: a) the subject of an offense; b) stolen or embezzled property and other

proceeds or fruits of an offense; and c) used or intended to be used as a means of committing an offense.chanrobles virtualawlibra ry chanrobles.com:chanrobles.com.ph It is noted that respondent Judge Jocson himself had doubts about the existence of probable cause in the issuance of the search warrant. In denying petitioner’s motion for reconsideration of the denial of his motion to quash and application for articles seized by virtue of search warrant No. 181, he stated:jgc:chanrobles.com.ph "The seeming lack of probable cause during the application for search warrant in the lower court is cured by the admission for the accused of counsel that at least one of the items seized bore the identifying mark of complainant National Power Corporation and the failure to aver in the quashal motion and in the open hearing that the seized items themselves were acquired in the usual course of business for value in good faith. However, this order is without prejudice to the right of the accused to pursue against the administrative liability of MTCC Judge Demosthenes Magallanes." (p. 54, Rollo)

In his memorandum, City Fiscal Mirano stated that the articles seized by virtue of search warrant No. 181 was taken from the possession of petitioner who signed the receipt in behalf of Kener Trading, which possession is punishable under Section 5, P.D. 1612, which states:jgc:chanrobles.com.ph

"Sec. 5. Presumption of Fencing. — Mere possession of any goods, article, item, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing."cralaw virtua1aw library No matter how incriminating the articles taken from the petitioner may be, their seizure cannot validate an invalid warrant. Again, in the case of Mata v. Bayona, G.R. No. 50720, March 26, 1984, 128 SCRA 388:jgc:chanrobles.com.ph

". . . that nothing can justify the issuance of the search warrant but the fulfillment of the legal requisites. It might be well to point out what has been said in Asian Surety & Insurance Co., Inc. v. Herrera:chanrob1es virtua l 1aw libra ry ‘It has been said that of all the rights of a citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books and papers from inspection and scrutiny of others. While the power to search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government."cralaw virtua1aw libra ry "Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumption of regularity are to be invoked in aid of the process

when an officer undertakes to justify it."cralaw virtua1aw libra ry Finally, the seized articles were described in the receipt issued by PC Sergeant Mamaril as galvanized bolts, V-chuckle, U-bolts and 3 1/2 feet angular bar (p. 21, Record). There is no showing that the possession thereof is prohibited by law hence, the return thereof to petitioner is proper. Also, the use in evidence of the articles seized pursuant to an invalid search warrant is enjoined by Section 3(2), Article III of the Constitution. ACCORDINGLY, the petition is GRANTED. Judgment is hereby rendered: 1) declaring Search Warrant No. 181 issued by Judge Demosthenes Magallanes NULL and VOID; 2) ordering the return of the items seized by virtue of the said warrant to herein petitioner; and 3) permanently enjoining respondents from using in evidence the articles seized by virtue of Search Warrant No. 181 in Criminal Case No. 5657.chanrobles virtual lawlibrary

SO ORDERED.

G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L. MANZANAS,petitioners, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOÑEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and 83979.

R E S O L U T I O N

PER CURIAM:

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 counter- affidavits, 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 counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits 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 complaint-affidavit, 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.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino Medialdea and Regalado, JJ., concur.

PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38, DUMAGUETE CITY, AND OIC MAYOR DOMINADOR S. REGALADO, JR., respondents.

GUTIERREZ, JR., J.:

Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to be coursed through the Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court may take cognizance of the investigation and determine whether or not probable cause exists?

On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador Regalado of Tanjay, Negros Oriental with the Commission on Elections (COMELEC), for allegedly transferring her, a permanent Nursing Attendant, Grade I, in the office of the Municipal Mayor to a very remote barangay and without obtaining prior permission or clearance from COMELEC as required by law.

Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of Dumaguete City: (1) to conduct the preliminary investigation of the case; (2) to prepare and file the necessary information in court; (3) to handle the prosecution if the evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution or dismissal as the case may be. The directive to conduct the preliminary investigation was pursuant to COMELEC Resolution No. 1752 dated January 14, 1986. The resolution, in turn, is based on the constitutional mandate that the COMELEC is charged with the enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and honest elections (sec. 2, Article XII-C of the 1973 Constitution) and on the Omnibus Election Code which implements the constitutional provision. The Resolution provides, among others:

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Further, Regional Election Directors and Provincial Election Supervisors are hereby authorized to conduct preliminary investigations of election offenses committed in their respective jurisdictions, file the corresponding complaints and/or informations in court whenever warranted, and to prosecute the same pursuant to Section 265 of the Omnibus Election Code. (Rollo, p. 15)

After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence, on September 26, 1988, he filed with the respondent trial court a criminal case for violation of section 261, Par. (h), Omnibus Election Code against the OIC-Mayor.

In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the accused OIC Mayor. It also fixed the bail at five thousand pesos (P5,000.00) as recommended by the Provincial Election Supervisor.

However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court set aside its September 30, 1988 order on the ground that Atty. Lituanas is not authorized to determine probable cause pursuant to Section 2, Article III of the 1987 Constitution. The court stated that it "will give due course to the information filed in this case if the same has the written approval of the Provincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter." (at p. 23, Rollo, emphasis supplied)

In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt to file another information charging the same offense with the written approval of the Provincial Fiscal.

Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial court quashed the information. A motion for reconsideration was denied.

Hence, this petition.

The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial Election Supervisor lacks jurisdiction to determine the existence of probable cause in an election offense which it seeks to prosecute in court because:

While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly authorized legal officers of the Commission on Elections have the exclusive power to conduct preliminary investigation of all election offenses and to prosecute the same, it is doubtful whether said authority under the auspices of the 1973 Constitution, still subsists under the 1987 Constitution

which has deleted in its Section 2, Article III, the phrase "and such other responsible officer as may be authorized by law" in the equivalent section and article of the 1973 Constitution. (Rollo, p. 24)

The petition is impressed with merit.

We emphasize important features of the constitutional mandate that " ... no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge ... " (Article III, Section 2, Constitution)

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.

The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16 Rule 112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions, namely: (1) that the conduct of a preliminary investigation is "not a judicial function ... (but) part of the prosecution's job, a function of the executive," (2) that wherever "there are enough fiscals or prosecutors to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certain power is granted does not necessarily mean that it should be indiscriminately exercised."

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC Judges also lost the power to make apreliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest (or search warrant). Such a power — indeed, it is as much a duty as it is a power — has been and remains vested in every judge by the provision in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions securing the people against unreasonable searches and seizures, thereby placing it beyond the competence of mere Court rule or statute to revoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information, he retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize that function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. It is in this context that we address the issue raised in the instant petition so as to give meaning to the constitutional power vested in the COMELEC regarding election offenses.

Article IX C Section 2 of the Constitution provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.

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(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of votes, investigate and, where appropriate, prosecute cases of violation of election laws, including acts or omission constituting election frauds, offenses, and practices. (Emphasis supplied)

In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of election laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. This power is exclusive with COMELEC.

The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and the concomittant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public officials in relation to their office would thus seriously impair its effectiveness in achieving this clear constitutional mandate.

From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceived neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to investigate, prosecute and hear election offenses committed by public officers in relation to their office as contradistinguished from the clear and categorical bestowal of said authority and jurisdiction upon the COMELEC and the courts of first instance under Sections 182 and 184, respectively, of the Election Code of 1978.

An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offenses committed by any person, whether private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing power over the conduct of elections. (Corpus v. Tanodbayan, 149 SCRA 281 [1987])

Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal or Prosecutor files an information charging an election offense or prosecutes a violation of election law, it is because he has been deputized by the COMELEC. He does not do so under the sole authority of his office. (People v. Basilla, et al., G.R. Nos. 83938-40, November 6, 1989).i•t•c-aüsl In the instant case, there is no averment or allegation that the respondent Judge is bringing in the Provincial Fiscal as a deputy of COMELEC. He wants the Fiscal to "approve" the COMELEC's preliminary investigation.

It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the President issued Executive Order No. 134 which was the ENABLING ACT FOR ELECTIONS FOR MEMBERS OF CONGRESS ON MAY 11, 1987 AND FOR OTHER PURPOSES." Section 11 thereof provides:

Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to conduct preliminary investigation of all election offenses punishable as provided for in the preceding section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any complaint within two (2) months from filing, the complainant may file the complaint with the Office of the Fiscal or with the Department of Justice for proper investigation and prosecution, if warranted.

The Commission may avail of the assistance of other prosecuting arms of the government.

It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that section 2, Article III of the 1987 Constitution comes in. This is so, because, when the application for a warrant of arrest is made and the information is filed with the court, the judge will then determine whether or not a probable cause exists for the issuance of a warrant of arrest.

Bearing these principles in mind, it is apparant that the respondent trial court misconstrued the constitutional provision when it quashed the information filed by the Provincial Election Supervisor. As indicated above what the respondent trial court should have done was to enforce its September 30, 1988 order, to wit:

Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987 and considering that after a personal examination of the evidence submitted by the investigating Provincial Election Supervisor III Negros Oriental (Designated Legal Officer), there is reasonable ground for this Court to rely on the certification of said Provincial Election Supervisor III in the information that a probable cause exists, let a warrant issue for the arrest of the accused filing the bail at FIVE THOUSAND (P5,000.00) PESOS as recommended by the Provincial Election Supervisor III.

The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted.

WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November 22, 1988 and December 8, 1988 are REVERSED and SET ASIDE. The respondent trial court's Order dated September 30, 1988 is REINSTATED. The respondent court is ordered to proceed hearing the case with deliberate speed until its termination.

SO ORDERED.