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G.R. No.

83988 September 29, 1989


RICARDO C. VALMONTE AND UNION OF LAWYERS AND
ADVOCATES FOR PEOPLE'S RIGHTS (ULAP), vs. GEN. RENATO
DE VILLA AND NATIONAL CAPITAL REGION DISTRICT
COMMAND (NCRDC)
FACTS:
On 20 January 1987, the NCRDC was activated pursuant to Letter
of Instruction 02/87 of the Philippine General Headquarters, AFP,
with the mission of conducting security operations within its area
of responsibility and peripheral areas, for the purpose of
establishing an effective territorial defense, maintaining peace
and order, and providing an atmosphere conducive to the social,
economic and political development of the National Capital
Region. As part of its duty to maintain peace and order, the
NCRDC installed checkpoints in various parts of Valenzuela,
Metro Manila.
Petitioners aver that, because of the installation of said
checkpoints, the residents of Valenzuela are worried of being
harassed and of their safety being placed at the arbitrary,
capricious and whimsical disposition of the military manning the
checkpoints, considering that their cars and vehicles are being
subjected to regular searches and check-ups, especially at night
or at dawn, without the benefit of a search warrant and/or court
order.
Their alleged fear for their safety increased when, at dawn of 9
July 1988, Benjamin Parpon, a supply officer of the Municipality
of Valenzuela, Bulacan, was gunned down allegedly in cold blood
by the members of the NCRDC manning the checkpoint along
McArthur Highway at Malinta, Valenzuela, for ignoring and/or
refusing to submit himself to the checkpoint and for continuing to
speed off inspite of warning shots fired in the air.
Petitioner Valmonte also claims that, on several occasions, he had
gone thru these checkpoints where he was stopped and his car
subjected to search/check-up without a court order or search
warrant.
Petitioners further contend that the said checkpoints give the
respondents a blanket authority to make searches and/or
seizures without search warrant or court order in violation of the
Constitution;
2
and, instances have occurred where a citizen,
while not killed, had been harassed.
ISSUE: WON the checkpoints conducted are violative of right
against unreasonable search and seizure.
HELD:
Petitioners' concern for their safety and apprehension at being
harassed by the military manning the checkpoints are not
sufficient grounds to declare the checkpoints as per se illegal.
No proof has been presented before the Court to show that, in the
course of their routine checks, the military indeed committed
specific violations of petitioners' right against unlawful search
and seizure or other rights.
The constitutional right against unreasonable searches and
seizures is a personal right invocable only by those whose rights
have been infringed, or threatened to be infringed.
What constitutes a reasonable or unreasonable search and
seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances
involved.
5

Petitioner Valmonte's general allegation to the effect that he had
been stopped and searched without a search warrant by the
military manning the checkpoints, without more, i.e., without
stating the details of the incidents which amount to a violation of
his right against unlawful search and seizure, is not sufficient to
enable the Court to determine whether there was a violation of
Valmonte's right against unlawful search and seizure.
Not all searches and seizures are prohibited. Those which are
reasonable are not forbidden. A reasonable search is not to be
determined by any fixed formula but is to be resolved according
to the facts of each case.
The setting up of the questioned checkpoints in Valenzuela (and
probably in other areas) may be considered as a security
measure to enable the NCRDC to pursue its mission of
establishing effective territorial defense and maintaining peace
and order for the benefit of the public. Checkpoints may also be
regarded as measures to thwart plots to destabilize the
government, in the interest of public security.
In this connection, the Court may take judicial notice of the shift
to urban centers and their suburbs of the insurgency movement,
so clearly reflected in the increased killings in cities of police and
military men by NPA "sparrow units," not to mention the
abundance of unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers, not all of which
are reported in media, most likely brought about by deteriorating
economic conditions which all sum up to what one can rightly
consider, at the very least, as abnormal times.
Between the inherent right of the state to protect its existence
and promote public welfare and an individual's right against a
warrantless search which is however reasonably conducted, the
former should prevail.
True, the manning of checkpoints by the military is susceptible of
abuse by the men in uniform, in the same manner that all
governmental power is susceptible of abuse. But, at the cost of
occasional inconvenience, discomfort and even irritation to the
citizen, the checkpoints during these abnormal times, when
conducted within reasonable limits, are part of the price we pay
for an orderly society and a peaceful community.
Finally, on 17 July 1988, military and police checkpoints in Metro
Manila were temporarily lifted and a review and refinement of
the rules in the conduct of the police and military manning the
checkpoints was ordered by the National Capital Regional
Command Chief and the Metropolitan Police Director.
WHEREFORE, the petition is DISMISSED.
G.R. Nos. 129756-58 January 28, 2000
PEOPLE OF THE PHILIPPINES vs. JULIAN DEEN ESCAO,
VIRGILIO TOME USANA and JERRY CASABAAN
LOPEZ, accused, VIRGILIO TOME USANA and JERRY
CASABAAN LOPEZ, accused-appellants.
FACTS:
Accused-appellants Virgilio T. Usana and Jerry C. Lopez, together
with Julian D. Escao, were charged before the RTC of Makati
City, with violation of Section 4, Article II of RA 6425 ("HASHISH",
a prohibited drug), as amended. Escao and Usana were also
charged with illegal possession of firearms and ammunition in
violation of PD 1866. The cases were consolidated and jointly
tried. The trial court convicted Escao and herein appellants in
Criminal Case No. 95-936, Escao in Criminal Case No. 95-937,
and appellant Usana in Criminal Case No. 95-938.
The prosecution has this version of the events:
On the 5th of April 1995 and during a COMELEC gun ban, some
law enforcers of the Makati Police were manning a checkpoint at
the corner of Senator Gil Puyat Ave. and the South Luzon
Expressway (SLEX). They were checking the cars going to Pasay
City, stopping those they found suspicious, and imposing merely
a running stop on the others.
At about past midnight, they stopped a Kia Pride car. PO3 Suba
saw a long firearm on the lap of the person seated at the
passenger seat, who was later identified as Usana. They asked the
driver, identified as Escao, to open the door. PO3 Suba seized
the long firearm, an M-1 US Carbine, from Usana. When Escao,
upon order of the police, parked along Sen. Gil Puyat Ave., the
other passengers were search for more weapons. Their search
yielded a .45 caliber firearm which they seized from Escao.
The 3 passengers were thereafter brought to the police station,
Upon reaching the precinct, Nonato turned over the key to the
desk officer. Since SPO4 de los Santos was suspicious of the
vehicle, he requested Escao to open the trunk. Escao readily
agreed and opened the trunk himself using his key.
16
They
noticed a blue bag inside it,
17
which they asked Escao to open.
The bag contained a parcel wrapped in tape,
18
which, upon
examination by NBI Forensic Chemist Emilia A. Rosaldos, was
found positive for hashish weighing 3.3143 kilograms.
19

A certification was issued by the Firearms and Explosive Office of
the NAPOLCOM to the effect that Escao was not a
licensed/registered firearms holder of any kind and caliber.
Usana, however, according to the same certification is a
licensed/registered holder of a pistol Colt .45 caliber with license
issued on 14 October 1994 and to expire on April 1996. Usana
also has an application for a pistol Uzi Cal. 9mm. Neither of the
two guns seized were licensed/registered with the NAPOLCOM.
Accused-appellants assail the manner by which the checkpoint in
question was conducted. They contend that the checkpoint
manned by elements of the Makati Police should have been
announced. They also complain of its having been conducted in
an arbitrary and discriminatory manner.
ISSUED: WON Checkpoints should be ANNOUNCED in order not
to be violative of the right against unreasonable S&S.
HELD:
We take judicial notice of the existence of the COMELEC
resolution
46
imposing a gun ban during the election period issued
pursuant to Section 52(c) in relation to Section 26(q) of the
Omnibus Election Code (BP Blg. 881). The national and local
elections in 1995 were held on 8 May, the second Monday of the
month. The incident, which happened on 5 April 1995, was well
within the election period.
This Court has ruled that not all checkpoints are illegal. Those
which are warranted by the exigencies of public order and are
conducted in a way least intrusive to motorists are allowed.
47

For, admittedly, routine checkpoints do intrude, to a certain
extent, on motorists' right to "free passage without interruption,"
but it cannot be denied that, as a rule, it involves only a brief
detention of travelers during which the vehicle's occupants are
required to answer a brief question or two. For as long as the
vehicle is neither searched nor its occupants subjected to a body
search, and the inspection of the vehicle is limited to a visual
search, said routine checks cannot be regarded as violative of an
individual's right against unreasonable search. In fact, these
routine checks, when conducted in a fixed area, are even less
intrusive.
The checkpoint herein conducted was in pursuance of the gun
ban enforced by the COMELEC. The COMELEC would be hard put
to implement the ban if its deputized agents were limited to a
visual search of pedestrians. It would also defeat the purpose for
which such ban was instituted. Those who intend to bring a gun
during said period would know that they only need a car to be
able to easily perpetrate their malicious designs.
The facts adduced do not constitute a ground for a violation of
the constitutional rights of the accused against illegal search and
seizure. PO3 Suba admitted that they were merely stopping cars
they deemed suspicious, such as those whose windows are
heavily tinted just to see if the passengers thereof were carrying
guns. At best they would merely direct their flashlights inside the
cars they would stop, without opening the car's doors or
subjecting its passengers to a body search. There is nothing
discriminatory in this as this is what the situation demands.
We see no need for checkpoints to be announced, as the
accused have invoked. Not only would it be impractical, it
would also forewarn those who intend to violate the ban.
Even so, badges of legitimacy of checkpoints may still be inferred
from their fixed location and the regularized manner in which
they are operated.
Usana and Lopez also question the validity of the search. The trial
court, in convicting the three accused for violation of R.A. No.
6425, accepted as aboveboard the search done by the Makati
Police of the trunk of the car. Jurisprudence recognizes six
generally accepted exceptions to the warrant requirement: (1)
search incidental to an arrest; (2) search of moving vehicles; (3)
evidence in plain view; (4) customs searches; (5) consented
warrantless search;
50
and (6) stop-and-frisk situations.
51

Even though there was ample opportunity to obtain a search
warrant, we cannot invalidate the search of the vehicle, for there
are indications that the search done on the car of Escao was
consented to by him. Both Lopez and Usana testified that Escao
was with the police officers when they searched the car.
52
There
was no apparent objection made by Escao as he seemed to have
freely accompanied the police officers to the car.
PO3 Suba, on the other hand, testified that "Escao readily agreed
to open the trunk," upon request of SPO4 de los Santos.
53
But
according to Escao, he refused the request of the police officers
to search his car.
54
We must give credence to the testimony of
PO3 Suba. Not only is it buttressed by the testimony of Usana and
Lopez that Escao freely accompanied the police officers to the
car, it is also deemed admitted by Escao in failing to appeal the
decision. The findings of fact of the trial court are thus deemed
final as against him.
Despite the validity of the search, we cannot affirm the conviction
of Usana and Lopez for violation of R.A. No. 6425, as amended.
The following facts militate against a finding of conviction: (1) the
car belonged to Escao; (2) the trunk of the car was not opened
soon after it was stopped and after the accused were searched for
firearms; (3) the car was driven by a policeman from the place
where it was stopped until the police station; (4) the car's trunk
was opened, with the permission of Escao, without the presence
of Usana and Lopez; and (5) after arrival at the police station and
until the opening of the car's trunk, the car was in the possession
and control of the police authorities.
No fact was adduced to link Usana and Lopez to the hashish
found in the trunk of the car. Their having been with Escao in
the latter's car before the "finding" of the hashish sometime after
the lapse of an appreciable time and without their presence left
much to be desired to implicate them to the offense of selling,
distributing, or transporting the prohibited drug. In fact, there
was no showing that Usana and Lopez knew of the presence of
hashish in the trunk of the car or that they saw the same before it
was seized.
IN VIEW WHEREOF, that portion of the challenged decision of the
RTC, Makati, insofar as Criminal Case No. 95-936 is concerned
with regard to accused-appellants VIRGILIO T. USANA and JERRY
C. LOPEZ, holding them guilty of violation of Section 4, Article II
of R.A. No. 6425, as amended, is hereby REVERSED and SET
ASIDE and another is hereby rendered ACQUITTING them
therein on ground of reasonable doubt and ORDERING their
immediate release from confinement at the New Bilibid Prison.
G.R. No. L-19550 June 19, 1967
HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS
and KARL BECK vs. HON. JOSE W. DIOKNO, in his capacity as
SECRETARY OF JUSTICE
Upon application of the officers of the government hereinafter
referred to as Respondents-Prosecutors several judges
hereinafter referred to as Respondents-Judges issued, on
different dates,
3
a total of 42 search warrants against petitioners
herein
4
and/or the corporations of which they were
officers,
5
directed to the any peace officer, to search the persons
above-named and/or the premises of their offices, warehouses
and/or residences, and to seize and take possession of the
following personal property to wit:
Books of accounts, financial records, vouchers, correspondence,
receipts, ledgers, journals, portfolios, credit journals, typewriters,
and other documents and/or papers showing all business
transactions including disbursements receipts, balance sheets and
profit and loss statements and Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or embezzled and proceeds
or fruits of the offense," or "used or intended to be used as the
means of committing the offense," which is described in the
applications adverted to above as "violation of Central Bank
Laws, Tariff and Customs Laws, Internal Revenue (Code) and the
RPC."
Alleging that the aforementioned search warrants are null and
void, as contravening the Constitution and the Rules of Court,
petitioners filed with the SC this original action for certiorari,
prohibition, mandamus and injunction, and prayed that, pending
final disposition of the present case, a writ of preliminary
injunction be issued restraining Respondents-Prosecutors, their
agents and /or representatives from using the effects seized as
aforementioned or any copies thereof, in the deportation cases
already adverted to, and that, in due course, thereafter, decision
be rendered quashing the contested search warrants and
declaring the same null and void, and commanding the
respondents, their agents or representatives to return to
petitioners herein, in accordance with Section 3, Rule 67, of the
Rules of Court, the documents, papers, things and cash moneys
seized or confiscated under the search warrants in question.
This Court issued the writ of preliminary injunction prayed for in
the petition. However, by resolution dated June 29, 1962, the writ
was partially lifted or dissolved, insofar as the papers, documents
and things seized from the offices of the corporations above
mentioned are concerned; but, the injunction was maintained as
regards the papers, documents and things found and seized in the
residences of petitioners herein.
HELD:
The docs, papers, and things seized under the alleged authority of
the warrants in question may be split into two (2) major groups,
namely: (a) those found and seized in the offices of the
aforementioned corporations, and (b) those found and seized in
the residences of petitioners herein.
I - CORPORATION
As regards the first group, we hold that petitioners herein
have no cause of action to assail the legality of the contested
warrants and of the seizures made in pursuance thereof, for the
simple reason that said corporations have their respective
personalities, separate and distinct from the personality of herein
petitioners, regardless of the amount of shares of stock or of the
interest of each of them in said corporations, and whatever the
offices they hold therein may be.
Indeed, it is well settled that the legality of a seizure can be
contested only by the party whose rights have been impaired
thereby,
9
and that the objection to an unlawful search and seizure
is purely personal and cannot be availed of by third parties.
10

Consequently, petitioners herein may not validly object to the use
in evidence against them of the documents, papers and things
seized from the offices and premises of the corporations adverted
to above, since the right to object to the admission of said papers
in evidence belongs exclusively to the corporations, to whom the
seized effects belong, and may not be invoked by the corporate
officers in proceedings against them in their individual capacity.
II - RESIDENCE
With respect to the documents, papers and things seized in the
residences of petitioners herein, this Court in a Resolution
restrained herein Respondents-Prosecutors from using them in
evidence against petitioners herein.
Petitioners maintain that the aforementioned search warrants
are in the nature of general warrants and that accordingly, the
seizures effected upon the authority there of are null and void.
In this connection, the Constitution
13
provides: The right 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.
NONE of these requirements has been complied with in the
contested warrants. Indeed, the same were issued upon
applications stating that the natural and juridical person therein
named had committed a "violation of Central Bank Laws, Tariff
and Customs Laws, Internal Revenue (Code) and RPC."
In other words, nospecific offense had been alleged in said
applications. The averments thereof with respect to the offense
committed were abstract. As a consequence, it was impossible for
the judges who issued the warrants to have found the existence
of probable cause, for the same presupposes the introduction of
competent proof that the party against whom it is sought has
performed particular acts, or committed specific omissions,
violating a given provision of our criminal laws. NOTE that The
evil sought to be remedied by the constitutional provision above
quoted to outlaw the so-called general warrants.
As a matter of fact, the applications involved in this case do not
allege any specific acts performed by herein petitioners. It would
be the legal heresy, of the highest order, to convict anybody of a
"violation of Central Bank Laws, Tariff and Customs Laws,
Internal Revenue (Code) and RPC," as alleged in the
aforementioned applications without reference to any
determinate provision of said laws
Under the Revised Rules of Court
15
that "a search warrant shall
not issue but upon probable cause in connection with one specific
offense." Not satisfied with this qualification, the Court added
thereto a paragraph, directing that "no search warrant shall issue
for more than one specific offense."
The grave violation of the Constitution made in the application
for the contested search warrants was compounded by the
description therein made of the effects to be searched for and
seized, to wit: Books of accounts, financial records x x x x x x x x
Thus, the warrants authorized the search for and seizure of
records pertaining to all business transactions of petitioners
herein, regardless of whether the transactions
were legal or illegal. The warrants sanctioned the seizure of all
records of the petitioners and the aforementioned corporations,
whatever their nature, thus openly contravening the explicit
command of our Bill of Rights that the things to be seized
be particularly described as well as tending to defeat its
major objective: the elimination of general warrants.
To be sure, if the applicant for a search warrant has competent
evidence to establish probable cause of the commission of a given
crime by the party against whom the warrant is intended, then
there is no reason why the applicant should not comply with the
requirements of the fundamental law. Upon the other hand, if he
has no such competent evidence, then it is not possible for the
Judge to find that there is probable cause, and, hence, no
justification for the issuance of the warrant. The only possible
explanation (not justification) for its issuance is the necessity
of fishing evidence of the commission of a crime. But, then, this
fishing expedition is indicative of the absence of evidence to
establish a probable cause.
We hold, therefore, that the warrants for the search of 3
residences of herein petitioners, as specified in the Resolution of
June 29, 1962, are null and void; that the searches and seizures
therein made are illegal; that the writ of preliminary injunction
heretofore issued, in connection with the documents, papers and
other effects thus seized in said residences of herein petitioners
is hereby made permanent; that the writs prayed for are granted,
insofar as the documents, papers and other effects so seized in
the aforementioned residences are concerned; that the
aforementioned motion for Reconsideration and Amendment
should be, as it is hereby, denied; and that the petition herein is
dismissed and the writs prayed for denied, as regards the
documents, papers and other effects seized in the 29 places,
offices and other premises enumerated in the same Resolution,
without special pronouncement as to costs.
G.R. No. 82585 November 14, 1988
MAXIMO V. SOLIVEN et al. vs. THE HON. RAMON P.
MAKASIAR, Presiding Judge of the RTC of Manila, Branch 35
ISSUES: WON 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
HELD:
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 SC 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.
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.
G.R. No. 104961 October 7, 1994
CONGRESSMAN FRANCISCO B. ANIAG, JR. vs. COMMISSION ON
ELECTIONS and DOJ SPECIAL TASK FORCE
FACTS:
In preparation for the synchronized national and local elections
scheduled on 11 May 1992, the COMELEC issued on 11 December
1991 Resolution No. 2323 otherwise referred to as the "Gun
Ban," promulgating rules and regulations on bearing, carrying
and transporting of firearms or other deadly weapons, on
security personnel or bodyguards, on bearing arms by members
of security agencies or police organizations, and organization or
maintenance of reaction forces during the election
period.

Subsequently, on 26 December 1991 COMELEC issued
Resolution No. 2327 providing for the summary disqualification
of candidates engaged in gunrunning, using and transporting of
firearms, organizing special strike forces, and establishing spot
checkpoints.


Pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-at-
Arms, House of Representatives, wrote petitioner who was then
Congressman of the 1st District of Bulacan requesting the return
of the 2 firearms

issued to him by the HR. Upon being advised of
the request by his staff, petitioner immediately instructed his
driver, Ernesto Arellano, to pick up the firearms from petitioner's
house at Valle Verde and return them to Congress.
Meanwhile, at about five o'clock in the afternoon of the same day,
the PNP headed by Senior Superintendent Danilo Cordero set up
a checkpoint outside the Batasan Complex some 20 meters away
from its entrance. About 30 minutes later, the policemen
manning the outpost flagged down the car driven by Arellano as
it approached the checkpoint. They searched the car and found
the firearms neatly packed in their gun cases and placed in a bag
in the trunk of the car. Arellano was then apprehended and
detained. He explained that he was ordered by petitioner to get
the firearms from the house and return them to Sergeant-at-
Arms Taccad of the House of Representatives.
The police referred Arellano's case to the Office of the City
Prosecutor for inquest. The referral did not include petitioner as
among those charged with an election offense.
The City Prosecutor invited petitioner to shed light on the
circumstances mentioned in Arellano's sworn explanation.
Petitioner not only appeared at the preliminary investigation to
confirm Arellano's statement but also wrote the City Prosecutor
urging him to exonerate Arellano. He explained that Arellano did
not violate the firearms ban as he in fact was complying with it
when apprehended by returning the firearms to Congress; and,
that he was petitioner's driver, not a security officer nor a
bodyguard.


The Office of the City Prosecutor issued a resolution which,
among other matters, recommended that the case against
Arellano be dismissed and that the "unofficial" charge against
petitioner be also dismissed.
6

Nevertheless,, COMELEC issued Resolution No. 92-0829 directing
the filing of information against petitioner and Arellano for
violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as
the Omnibus Election Code, in relation to Sec. 32 of R.A. No.
7166;
7
and petitioner to show cause why he should not be
disqualified from running for an elective position, pursuant to
COMELEC Resolution No. 2327, in relation to Sec. 32, 33 and 35
of R.A. 7166, and Sec. 52, par. (c), of B.P. Blg. 881.
8

Petitioner questions the constitutionality of Res. No. 2327. He
argues that acts mentioned in the resolution are not within the
letter or spirit of the provisions of the Omnibus Election Code;
that the resolution did away with the requirement of final
conviction before the commission of certain offenses; that
instead, it created a presumption of guilt as a candidate may be
disqualified from office in situations (a) where the criminal
charge is still pending, (b) where there is no pending criminal
case, and (c) where the accused has already been acquitted, all
contrary to the requisite quantum of proof for one to be
disqualified from running or holding public office under the
Omnibus Election Code, i.e., proof beyond reasonable doubt. As a
result, petitioner concludes, Resolution No. 2327 violates the
fundamental law thus rendering it fatally defective.
But, the issue on the disqualification of petitioner from running in
the 11 May 1992 synchronized elections was rendered moot
when he lost his bid for a seat in Congress in the elections that
ensued. Consequently, it is now futile to discuss the implications
of the charge against him on his qualification to run for public
office.
ISSUE: WON the petitioner can be validly prosecuted for
instructing his driver to return to the Sergeant-at-Arms of the HR
the 2 firearms issued to him on the basis of the evidence gathered
from the warrantless search of his car.
HELD:
SEARCH & SEIZURE
As a rule, a valid search must be authorized by a search warrant
duly issued by an appropriate authority. However, this is not
absolute. Aside from a search incident to a lawful arrest, a
warrantless search had been upheld in cases of moving vehicles
and the seizure of evidence in plain view,
17
as well as the search
conducted at police or military checkpoints which we declared
are not illegal per se, and stressed that the warrantless search is
not violative of the Constitution for as long as the vehicle is
neither searched nor its occupants subjected to a body
search, and the inspection of the vehicle is merely limited to
a visual search.
18

Petitioner contends that the guns were not tucked in Arellano's
waist nor placed within his reach, and that they were neatly
packed in gun cases and placed inside a bag at the back of the car.
Significantly, COMELEC did not rebut this claim. The records do
not show that the manner by which the package was bundled led
the PNP to suspect that it contained firearms. There was no
mention either of any report regarding any nervous, suspicious
or unnatural reaction from Arellano when the car was stopped
and searched. Given these circumstances and relying on its visual
observation, the PNP could not thoroughly search the car lawfully
as well as the package without violating the constitutional
injunction.
An extensive search without warrant could only be resorted to if
the officers conducting the search had reasonable or probable
cause to believe before the search that either the motorist was a
law offender or that they would find the instrumentality or
evidence pertaining to the commission of a crime in the vehicle to
be searched.

In the case at bench, we find that the checkpoint was set up 20
meters from the entrance to the Batasan Complex to enforce
Resolution No. 2327. There was no evidence to show that the
policemen were impelled to do so because of a confidential
report leading them to reasonably believe that certain motorists
matching the description furnished by their informant were
engaged in gunrunning, transporting firearms or in organizing
special strike forces. Nor, as adverted to earlier, was there any
indication from the package or behavior of Arellano that could
have triggered the suspicion of the policemen.
Absent such justifying circumstances specifically pointing to the
culpability of petitioner and Arellano, the search could not be
valid. The action then of the policemen unreasonably intruded
into petitioner's privacy and the security of his property, in
violation of Sec. 2, Art. III, of the Constitution. Consequently, the
firearms obtained in violation of petitioner's right against
warrantless search cannot be admitted for any purpose in any
proceeding.
The facts show that PNP installed the checkpoint at about 5
o'clock in the afternoon of 13 January 1992. The search was made
soon thereafter, or thirty minutes later. It was not shown that
news of impending checkpoints without necessarily giving their
locations, and the reason for the same have been announced in
the media to forewarn the citizens. Nor did the informal
checkpoint that afternoon carry signs informing the public of the
purpose of its operation.
As a result, motorists passing that place did not have any inkling
whatsoever about the reason behind the instant exercise. With
the authorities in control to stop and search passing vehicles, the
motorists did not have any choice but to submit to the PNP's
scrutiny. Otherwise, any attempt to turnabout albeit innocent
would raise suspicion and provide probable cause for the police
to arrest the motorist and to conduct an extensive search of his
vehicle.
In the case of petitioner, only his driver was at the car at that time
it was stopped for inspection. As conceded by COMELEC, driver
Arellano did not know the purpose of the checkpoint. In the face
of 14 armed policemen conducting the operation,
29
driver
Arellano being alone and a mere employee of petitioner could not
have marshalled the strength and the courage to protest against
the extensive search conducted in the vehicle.
In such scenario, the "implied acquiescence," if there was any,
could not be more than a mere passive conformity on Arellano's
part to the search, and "consent" given under intimidating or
coercive circumstances is no consent within the purview of the
constitutional guaranty.
DUE PROCESS
Moreover, the manner by which COMELEC proceeded against
petitioner runs counter to the due process clause of the
Constitution. The facts show that petitioner was not among those
charged by the PNP with violation of the Omnibus Election Code.
Nor was he subjected by the City Prosecutor to a preliminary
investigation for such offense. The non-disclosure by the City
Prosecutor to the petitioner that he was a respondent in the
preliminary investigation is violative of due process which
requires that the procedure established by law should be
obeyed.
COMELEC argues that petitioner was given the change to be
heard because he was invited to enlighten the City Prosecutor
regarding the circumstances leading to the arrest of his driver,
and that petitioner in fact submitted a sworn letter of explanation
regarding the incident. This does not satisfy the requirement of
due process the essence of which is the reasonable opportunity
to be heard and to submit any evidence one may have in support
of his defense.
31
Due process guarantees the observance of both
substantive and procedural rights, whatever the source of such
rights, be it the Constitution itself or only a statute or a rule of
court.
In Go v. CA,

we held that While the right to preliminary
investigation is statutory rather than constitutional in its
fundament, since it has in fact been established by statute, it is a
component part of due process in criminal justice. The right to
have a preliminary investigation conducted before being bound
over to trial for a criminal offense and hence formally at risk of
incarceration or some other penalty is not a mere formal or
technical right; it is a substantive right . . . . [T]he right to an
opportunity to avoid a process painful to anyone save, perhaps,
to hardened criminals is a valuable right. To deny petitioner's
claim to a preliminary investigation would be to deprive him
of the full measure of his right to due process.
Apparently, petitioner was merely invited during the
preliminary investigation of Arellano to corroborate the
latter's explanation. Petitioner then was made to believe
that he was not a party respondent in the case, so that his
written explanation on the incident was only intended to
exculpate Arellano, not petitioner himself. Hence, it cannot be
seriously contended that petitioner was fully given the
opportunity to meet the accusation against him as he was not
apprised that he was himself a respondent when he appeared
before the City Prosecutor.
WAIVER
Finally, it must be pointed out too that petitioner's filing of a
motion for reconsideration with COMELEC cannot be considered
as a waiver of his claim to a separate preliminary investigation
for himself. The motion itself expresses petitioner's vigorous
insistence on his right. Petitioner's protestation started as soon
as he learned of his inclusion in the charge, and did not ease up
even after COMELEC's denial of his motion for reconsideration.
WHEREFORE, the instant petition is GRANTED. The warrantless
search conducted by the PNP on 13 January 1992 is declared
illegal and the firearms seized during the warrantless search
cannot be used as evidence in any proceeding against petitioner.
Consequently, COMELEC Resolution No. 92-0829 dated 6 April
1992 being violative of the Constitution is SET ASIDE.
G.R. No. 71410 November 25, 1986
JOSEFINO S. ROAN vs. THE HONORABLE ROMULO T.
GONZALES, PRESIDING JUDGE, REGIONAL TRIAL COURT OF
MARINDUQUE, BRANCH XXXVIII; THE PROVINCIAL FISCAL OF
MARINDUQUE; THE PROVINCIAL COMMANDER, PC-INP
MARINDUQUE
FACTS:
The challenged search warrant was issued by the respondent
judge on May 10, 1984.
2
The petitioner's house was searched
two days later but none of the articles listed in the warrant was
discovered.
3
However, the officers conducting the search found
in the premises one Colt Magnum revolver and 18 live bullets
which they confiscated. They are now the bases of the charge
against the petitioner.
The petitioner claims he was the victim of an illegal search and
seizure conducted by the military authorities. The articles seized
from him are sought to be used as evidence in his prosecution for
illegal possession of firearms. He asks that their admission be
temporarily restrained (which we have)
1
and thereafter
permanently enjoined.
HELD:
That right is guaranteed in the following provisions of Article IV
of the 1973 Constitution:
SEC. 3. 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 not be violated, and no
search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other
responsible officer as may be authorized by law, 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.
SEC. 4. (1) The privacy of communication and correspondence shag
be inviolable except upon lawful order of the court, or when public
safety and order require otherwise.
(2) Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.
Probable cause was described by Justice Escolin in Burgos v.
Chief of Staff
6
as referring to "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." As held in a long line of decisions, the probable cause
must refer to only one specific offense.


Moreover, under the Rules of Court provided in what was then
Rule 126:
SEC. 4.Examination of the applicant. The municipal or city judge
must, before issuing the warrant, personally examine on oath or
affirmation the complainant and any witnesses he may produce
and take their depositions in writing, and attach them to the
record, in addition to any affidavits presented to him.
The petitioner claims that no depositions were taken by the
respondent judge in accordance with the above rule, but this is
not entirely true. As a matter of fact, depositions were taken of
the complainant's two witnesses in addition to the affidavit
executed by them. It is correct to say, however, that the
complainant himself was not subjected to a similar interrogation.
Commenting on this matter, the respondent judge declared: The
truth is that when PC Capt. Mauro P. Quinosa personally filed his
application for a search warrant, he appear before me in the
company of his 2 witnesses, Esmael Morada and Jesus Tohilida,
both of whom likewise presented to me their respective affidavits
taken by Pat. Josue V. Lining, a police investigator assigned to the
PC-INP command at Camp Col. Maximo Abad. As the application
was not yet subscribed and sworn to, I proceeded to examine
Captain Quillosa on the contents thereof to ascertain, among
others, if he knew and understood the same. Afterwards, he
subscribed and swore to the same before me.
10

By his own account, what he did was question Captain Quillosa
on the contents of his affidavit only "to ascertain, among others, if
he knew and understood the same," and only because "the
application was not yet subscribed and sworn to." The suggestion
is that he would not have asked any questions at all if the
affidavit had already been completed when it was submitted to
him. In any case, he did not ask his own searching questions. He
limited himself to the contents of the affidavit. He did not take the
applicant's deposition in writing and attach them to the record,
together with the affidavit presented to him.
In Mata v. Bayona: 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.
We, therefore, hold that the search warrant is tainted with
illegality by the failure of the Judge to conform with the essential
requisites of taking the depositions in writing and attaching them
to the record, rendering the search warrant invalid.
The respondent judge also declared that he "saw no need to have
applicant Quillosa's deposition taken considering that he was
applying for a search warrant on the basis of the information
provided by the aforenamed witnesses whose depositions as
aforementioned had already been taken by the undersigned."
12

In other words, the applicant was asking for the issuance of the
search warrant on the basis of mere hearsay and not of
information personally known to him, as required by settled
jurisprudence."

The rationale of the requirement, of course, is to provide a
ground for a prosecution for perjury in case the applicant's
declarations are found to be false. His application, standing alone,
was insufficient to justify the issuance of the warrant sought. It
was therefore necessary for the witnesses themselves, by their
own personal information, to establish the applicant's claims.
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.
15

A study of the depositions taken from witnesses EsmaelMorada
and Jesus Tohilida, who both claimed to be "intelligence
informers," shows that they were in the main a mere restatement
of their allegations in their affidavits, except that they were made
in the form of answers to the questions put to them by the
respondent judge. Significantly, the meaningful remark made by
Tohilida that they were suspicious of the petitioner because he
was a follower of the opposition candidate in the forthcoming
election (a "Lecarista")
16
did not excite the respondent judge's
own suspicions. This should have put him on guard as to the
motivations of the witnesses and alerted him to possible
misrepresentations from them.
The respondent judge almost unquestioningly received the
witnesses' statement that they saw eight men deliver arms to the
petitioner in his house on May 2, 1984.
17
This was supposedly
done overtly, and Tohilida said he saw everything through an
open window of the house while he was near the gate.
18
He could
even positively say that six of the weapons were.45 caliber
pistols and two were.38 caliber revolvers.
19

One may well wonder why it did not occur to the respondent
judge to ask how the witness could be so certain even as to the
caliber of the guns, or how far he was from the window, or
whether it was on the first floor or a second floor, or why his
presence was not noticed at all, or if the acts related were really
done openly, in the full view of the witnesses, considering that
these acts were against the law. These would have been judicious
questions but they were injudiciously omitted. Instead, the
declarations of the witnesses were readily accepted and the
search warrant sought was issued forthwith.
The above-discussed defects have rendered the search warrant
invalid. Nonetheless, the Solicitor General argues that whatever
defect there was, was waived when the petitioner voluntarily
submitted to the search and manifested his conformity in
writing. We do not agree.
What we see here is pressure exerted by the military authorities,
who practically coerced the petitioner to sign the supposed
waiver as a guaranty against a possible challenge later to the
validity of the search they were conducting. Confronted with the
armed presence of the military and the presumptive authority of
a judicial writ, the petitioner had no choice but to submit. This
was not, as we held in a previous case,
21
the manifestation
merely of our traditional Filipino hospitality and respect for
authority. Given the repressive atmosphere of the Marcos
regime, there was here, as we see it, an intimidation that the
petitioner could not resist.
Prohibited articles may be seized but only as long as the search is
valid. In this case, it was not because: 1) there was no valid
search warrant; and 2) absent such a warrant, the right thereto
was not validly waived by the petitioner. In short, the military
officers who entered the petitioner's premises had no right to be
there and therefore had no right either to seize the pistol and
bullets.
It does not follow that because an offense
is malumprohibitum, the subject thereof is necessarily illegal per
se. Motive is immaterial in mala prohibita, but the subjects of this
kind of offense may not be summarily seized simply because they
are prohibited. A search warrant is still necessary.
Clearly, though, the instant case does not come under any of the
accepted exceptions. The respondents cannot even claim that
they stumbled upon the pistol and bullets for the fact is that these
things were deliberately sought and were not in plain view when
they were taken. Hence, the rule having been violated and no
exception being applicable, the conclusion is that the petitioner's
pistol and bullets were confiscated illegally and therefore are
protected by the exclusionary principle.
Stonehill v. Diokno established this rule which was later expressly
affirmed in the 1973 Constitution. While conceding that there
may be occasions when the criminal might be allowed to go free
because "the constable has blundered," Chief Justice Concepcion
observed that the exclusionary rule was nonetheless "the only
practical means of enforcing the constitutional injunction"
against abuse. The decision cited Judge Learned Hand's
justification that "only in case the prosecution which itself
controls the seizing officials, know that it cannot profit by their
wrong, will the wrong be repressed. "
The pistol and bullets cannot, of course, be used as evidence
against the petitioner in the criminal action against him for illegal
possession of firearms. Pending resolution of that case, however,
the said articles must remain incustodia legis.
Finally, it is true that the petitioner should have, before coming to
this Court, filed a motion for the quashal of the search warrant by
the respondent judge in accordance with the normal procedure.
But as we said and did in Burgos, "this procedural flaw
notwithstanding, we take cognizance of this petition in view of
the seriousness and urgency of the constitutional issues raised.
28

WHEREFORE, Search Warrant No. 1-84 issued by the respondent
judge is hereby declared null and void and accordingly set aside.
Our restraining order is made permanent.




G.R. No. L-27360 February 28, 1968
HON. RICARDO G. PAPA, as Chief of Police of Manila et. Al vs.
REMEDIOS MAGO and HILARION U. JARENCIO, as Presiding
Judge of Branch 23, CFI of Manila
This is an original action for prohibition and certiorari, with
preliminary injunction filed by Ricardo Papa, Chief of Police of
Manila; Juan once Enrile, Commissioner of Customs; Pedro Pacis,
Collector of Customs of the Port of Manila; and Martin Alagao, a
patrolman of the Manila Police Department, against
RemediosMago and Hon. HilarionJarencio, Presiding Judge of
Branch 23 of the Court of First Instance of Manila, praying for the
annulment of the order issued by respondent Judge in Civil Case
No. 67496 of the Court of First Instance of Manila under date of
March 7, 1967, which authorized the release under bond of
certain goods which were seized and held by petitioners in
connection with the enforcement of the Tariff and Customs Code,
but which were claimed by respondent RemediosMago, and to
prohibit respondent Judge from further proceeding in any
manner whatsoever in said Civil Case No. 67496. Pending the
determination of this case this Court issued a writ of preliminary
injunction restraining the respondent Judge from executing,
enforcing and/or implementing the questioned order in Civil
Case No. 67496 and from proceeding with said case.
Petitioner Martin Alagao, head of the counter-intelligence
unit of the Manila Police Department, acting upon a reliable
information received on November 3, 1966 to the effect that a
certain shipment of personal effects, allegedly misdeclared and
undervalued, would be released the following day from the
customs zone of the port of Manila and loaded on two trucks, and
upon orders of petitioner Ricardo Papa, Chief of Police of Manila
and a duly deputized agent of the Bureau of Customs, conducted
surveillance at gate No. 1 of the customs zone. When the trucks
left gate No. 1 at about 4:30 in the afternoon of November 4,
1966, elements of the counter-intelligence unit went after the
trucks and intercepted them at the Agrifina Circle, Ermita, Manila.
The load of the two trucks consisting of nine bales of goods, and
the two trucks, were seized on instructions of the Chief of Police.
Upon investigation, a person claimed ownership of the goods and
showed to the policemen a "Statement and Receipts of Duties
Collected in Informal Entry No. 147-5501", issued by the Bureau
of Customs in the name of a certain BienvenidoNaguit.
Claiming to have been prejudiced by the seizure and
detention of the two trucks and their cargo, RemediosMago and
Valentin B. Lanopa filed with the Court of First Instance of Manila
a petition "for mandamus with restraining order or preliminary
injunction, docketed as Civil Case No. 67496, alleging, among
others, that RemediosMago was the owner of the goods seized,
having purchased them from the Sta. Monica Grocery in San
Fernando, Pampanga; that she hired the trucks owned by
ValentinLanopa to transport, the goods from said place to her
residence at 1657 LaonLaan St., Sampaloc, Manila; that the goods
were seized by members of the Manila Police Department
without search warrant issued by a competent court; that anila
Chief of Police Ricardo Papa denied the request of counsel for
RemediosMago that the bales be not opened and the goods
contained therein be not examined; that then Customs
Commissioner Jacinto Gavino had illegally assigned appraisers to
examine the goods because the goods were no longer under the
control and supervision of the Commissioner of Customs; that the
goods, even assuming them to have been misdeclared and,
undervalued, were not subject to seizure under Section 2531 of
the Tariff and Customs Code because RemediosMago had bought
them from another person without knowledge that they were
imported illegally; that the bales had not yet been opened,
although Chief of Police Papa had arranged with the
Commissioner of Customs regarding the disposition of the goods,
and that unless restrained their constitutional rights would be
violated and they would truly suffer irreparable injury. Hence,
RemediosMago and ValentinLanopa prayed for the issuance of a
restraining order, ex parte, enjoining the above-named police and
customs authorities, or their agents, from opening the bales and
examining the goods, and a writ of mandamus for the return of
the goods and the trucks, as well as a judgment for actual, moral
and exemplary damages in their favor.
On November 10, 1966, respondent Judge HilarionJarencio
issued an order ex parte restraining the respondents in Civil Case
No. 67496 now petitioners in the instant case before this Court
from opening the nine bales in question, and at the same time
set the hearing of the petition for preliminary injunction on
November 16, 1966. However, when the restraining order was
received by herein petitioners, some bales had already been
opened by the examiners of the Bureau of Customs in the
presence of officials of the Manila Police Department, an assistant
city fiscal and a representative of herein respondent
RemediosMago.
Under date of November 15, 1966, RemediosMago filed an
amended petition in Civil Case No. 67496, including as party
defendants Collector of Customs Pedro Pacis of the Port of Manila
and Lt. Martin Alagao of the Manila Police Department. Herein
petitioners (defendants below) filed, on November 24, 1966,
their "Answer with Opposition to the Issuance of a Writ of
Preliminary Injunction", denying the alleged illegality of the
seizure and detention of the goods and the trucks and of their
other actuations, and alleging special and affirmative defenses, to
wit: that the Court of First Instance of Manila had no jurisdiction
to try the case; that the case fell within the exclusive jurisdiction
of the Court of Tax Appeals; that, assuming that the court had
jurisdiction over the case, the petition stated no cause of action in
view of the failure of RemediosMago to exhaust the
administrative remedies provided for in the Tariff and Customs
Code; that the Bureau of Customs had not lost jurisdiction over
the goods because the full duties and charges thereon had not
been paid; that the members of the Manila Police Department had
the power to make the seizure; that the seizure was not
unreasonable; and the persons deputized under Section 2203 (c)
of the Tariff and Customs Code could effect search, seizures and
arrests in inland places in connection with the enforcement of the
said Code. In opposing the issuance of the writ of preliminary
injunction, herein petitioners averred in the court below that the
writ could not be granted for the reason that RemediosMago was
not entitled to the main reliefs she prayed for; that the release of
the goods, which were subject to seizure proceedings under the
Tariff and Customs Code, would deprive the Bureau of Customs of
the authority to forfeit them; and that RemediosMago and
ValentinLanopa would not suffer irreparable injury. Herein
petitioners prayed the court below for the lifting of the
restraining order, for the denial of the issuance of the writ of
preliminary injunction, and for the dismissal of the case.
At the hearing on December 9, 1966, the lower Court, with
the conformity of the parties, ordered that an inventory of the
goods be made by its clerk of court in the presence of the
representatives of the claimant of the goods, the Bureau of
Customs, and the Anti-Smuggling Center of the Manila Police
Department. On December 13, 1966, the above-named persons
filed a "Compliance" itemizing the contents of the nine bales.
Herein respondent RemediosMago, on December 23, 1966,
filed an ex parte motion to release the goods, alleging that since
the inventory of the goods seized did not show any article of
prohibited importation, the same should be released as per
agreement of the patties upon her posting of the appropriate
bond that may be determined by the court. Herein petitioners
filed their opposition to the motion, alleging that the court had no
jurisdiction to order the release of the goods in view of the fact
that the court had no jurisdiction over the case, and that most of
the goods, as shown in the inventory, were not declared and
were, therefore, subject to forfeiture. A supplemental opposition
was filed by herein petitioners on January 19, 1967, alleging that
on January 12, 1967 seizure proceedings against the goods had
been instituted by the Collector of Customs of the Port of Manila,
and the determination of all questions affecting the disposal of
property proceeded against in seizure and forfeiture proceedings
should thereby be left to the Collector of Customs. On January 30,
1967, herein petitioners filed a manifestation that the estimated
duties, taxes and other charges due on the goods amounted to
P95,772.00. On February 2, 1967, herein respondent
RemediosMago filed an urgent manifestation and reiteration of
the motion for the release under bond of the goods.
On March 7, 1967, the respondent Judge issued an order
releasing the goods to herein respondent RemediosMago upon
her filing of a bond in the amount of P40,000.00, and on March
13, 1967, said respondent filed the corresponding bond.
On March 13, 1967, herein petitioner Ricardo Papa, on his
own behalf, filed a motion for reconsideration of the order of the
court releasing the goods under bond, upon the ground that the
Manila Police Department had been directed by the Collector of
Customs of the Port of Manila to hold the goods pending
termination of the seizure proceedings.
Without waiting for the court's action on the motion for
reconsideration, and alleging that they had no plain, speedy and
adequate remedy in the ordinary course of law, herein
petitioners filed the present action for prohibition
and certiorari with preliminary injunction before this Court. In
their petition petitioners alleged, among others, that the
respondent Judge acted without jurisdiction in ordering the
release to respondent RemediosMago of the disputed goods, for
the following reasons: (1) the Court of First Instance of Manila,
presided by respondent Judge, had no jurisdiction over the case;
(2) respondent RemediosMago had no cause of action in Civil
Case No. 67496 of the Court of First Instance of Manila due to her
failure to exhaust all administrative remedies before invoking
judicial intervention; (3) the Government was not estopped by
the negligent and/or illegal acts of its agent in not collecting the
correct taxes; and (4) the bond fixed by respondent Judge for the
release of the goods was grossly insufficient.
In due time, the respondents filed their answer to the
petition for prohibition and certiorari in this case. In their
answer, respondents alleged, among others: (1) that it was within
the jurisdiction of the lower court presided by respondent Judge
to hear and decide Civil Case No. 67496 and to issue the
questioned order of March 7, 1967, because said Civil Case No.
67496 was instituted long before seizure, and identification
proceedings against the nine bales of goods in question were
instituted by the Collector of Customs; (2) that petitioners could
no longer go after the goods in question after the corresponding
duties and taxes had been paid and said goods had left the
customs premises and were no longer within the control of the
Bureau of Customs; (3) that respondent RemediosMago was
purchaser in good faith of the goods in question so that those
goods can not be the subject of seizure and forfeiture
proceedings; (4) that the seizure of the goods was affected by
members of the Manila Police Department at a place outside
control of jurisdiction of the Bureau of Customs and affected
without any search warrant or a warrant of seizure and
detention; (5) that the warrant of seizure and detention
subsequently issued by the Collector of Customs is illegal and
unconstitutional, it not being issued by a judge; (6) that the
seizing officers have no authority to seize the goods in question
because they are not articles of prohibited importation; (7) that
petitioners are estopped to institute the present action because
they had agreed before the respondent Judge that they would not
interpose any objection to the release of the goods under bond to
answer for whatever duties and taxes the said goods may still be
liable; and (8) that the bond for the release of the goods was
sufficient.
The principal issue in the instant case is whether or not, the
respondent Judge had acted with jurisdiction in issuing the order
of March 7, 1967 releasing the goods in question.
The Bureau of Customs has the duties, powers and
jurisdiction, among others, (1) to assess and collect all lawful
revenues from imported articles, and all other dues, fees, charges,
fines and penalties, accruing under the tariff and customs laws;
(2) to prevent and suppress smuggling and other frauds upon the
customs; and (3) to enforce tariff and customs laws.
1
The goods
in question were imported from Hongkong, as shown in the
"Statement and Receipts of Duties Collected on Informal
Entry".
2
As long as the importation has not been terminated the
imported goods remain under the jurisdiction of the Bureau of
customs. Importation is deemed terminated only upon the
payment of the duties, taxes and other charges upon the articles,
or secured to be paid, at the port of entry and the legal permit for
withdrawal shall have been granted.
3
The payment of the duties,
taxes, fees and other charges must be in full.
4

The record shows, by comparing the articles and duties
stated in the aforesaid "Statement and Receipts of Duties
Collected on Informal Entry" with the manifestation of the Office
of the Solicitor General
5
wherein it is stated that the estimated
duties, taxes and other charges on the goods subject of this case
amounted to P95,772.00 as evidenced by the report of the
appraiser of the Bureau of Customs, that the duties, taxes and
other charges had not been paid in full. Furthermore, a
comparison of the goods on which duties had been assessed, as
shown in the "Statement and Receipts of Duties Collected on
Informal Entry" and the "compliance" itemizing the articles found
in the bales upon examination and inventory,
6
shows that the
quantity of the goods was underdeclared, presumably to avoid
the payment of duties thereon. For example, Annex B (the
statement and receipts of duties collected) states that there were
40 pieces of ladies' sweaters, whereas Annex H (the inventory
contained in the "compliance") states that in bale No. 1 alone
there were 42 dozens and 1 piece of ladies' sweaters of assorted
colors; in Annex B, only 100 pieces of watch bands were assessed,
but in Annex H, there were in bale No. 2, 209 dozens and 5 pieces
of men's metal watch bands (white) and 120 dozens of men's
metal watch band (gold color), and in bale No. 7, 320 dozens of
men's metal watch bands (gold color); in Annex B, 20 dozens only
of men's handkerchief were declared, but in Annex H it appears
that there were 224 dozens of said goods in bale No. 2, 120
dozens in bale No. 6, 380 dozens in bale No. 7, 220 dozens in bale
No. 8, and another 200 dozens in bale No. 9. The articles
contained in the nine bales in question, were, therefore, subject
to forfeiture under Section 2530, pars. e and m, (1), (3), (4), and
(5) of the Tariff and Customs Code. And this Court has held that
merchandise, the importation of which is effected contrary to
law, is subject to forfeiture,
7
and that goods released contrary to
law are subject to seizure and forfeiture.
8

Even if it be granted, arguendo, that after the goods in
question had been brought out of the customs area the Bureau of
Customs had lost jurisdiction over the same, nevertheless, when
said goods were intercepted at the Agrifina Circle on November
4, 1966 by members of the Manila Police Department, acting
under directions and orders of their Chief, Ricardo C. Papa, who
had been formally deputized by the Commissioner of
Customs,
9
the Bureau of Customs had regained jurisdiction and
custody of the goods. Section 1206 of the Tariff and Customs
Code imposes upon the Collector of Customs the duty to hold
possession of all imported articles upon which duties, taxes, and
other charges have not been paid or secured to be paid, and to
dispose of the same according to law. The goods in question,
therefore, were under the custody and at the disposal of the
Bureau of Customs at the time the petition for mandamus,
docketed as Civil Case No. 67496, was filed in the Court of First
Instance of Manila on November 9, 1966. The Court of First
Instance of Manila, therefore, could not exercise jurisdiction over
said goods even if the warrant of seizure and detention of the
goods for the purposes of the seizure and forfeiture proceedings
had not yet been issued by the Collector of Customs.
The ruling in the case of "Alberto de Joya, et al. v. Hon.
Gregorio Lantin, et al.," G.R. No. L-24037, decided by this Court on
April 27, 1967, is squarely applicable to the instant case. In the De
Joya case, it appears that Francindy Commercial of Manila bought
from Ernerose Commercial of Cebu City 90 bales of assorted
textiles and rags, valued at P117,731.00, which had been
imported and entered thru the port of Cebu. Ernerose
Commercial shipped the goods to Manila on board an inter-island
vessel. When the goods where about to leave the customs
premises in Manila, on October 6, 1964, the customs authorities
held them for further verification, and upon examination the
goods were found to be different from the declaration in the
cargo manifest of the carrying vessel. Francindy Commercial
subsequently demanded from the customs authorities the release
of the goods, asserting that it is a purchaser in good faith of those
goods; that a local purchaser was involved so the Bureau of
Customs had no right to examine the goods; and that the goods
came from a coastwise port. On October 26, 1964, Francindy
Commercial filed in the Court of First Instance of Manila a
petition for mandamus against the Commissioner of Customs and
the Collector of Customs of the port of Manila to compel said
customs authorities to release the goods.
Francindy Commercial alleged in its petition
for mandamus that the Bureau of Customs had no jurisdiction
over the goods because the same were not imported to the port
of Manila; that it was not liable for duties and taxes because the
transaction was not an original importation; that the goods were
not in the hands of the importer nor subject to importer's control,
nor were the goods imported contrary to law with its (Francindy
Commercial's) knowledge; and that the importation had been
terminated. On November 12, 1964, the Collector of Customs of
Manila issued a warrant of seizure and identification against the
goods. On December 3, 1964, the Commissioner of Customs and
the Collector of Customs, as respondents in the mandamus case,
filed a motion to dismiss the petition on the grounds of lack of
jurisdiction, lack of cause of action, and in view of the pending
seizure and forfeiture proceedings. The Court of First Instance
held resolution on the motion to dismiss in abeyance pending
decision on the merits. On December 14, 1964, the Court of First
Instance of Manila issued a preventive and mandatory injunction,
on prayer by Francindy Commercial, upon a bond of P20,000.00.
The Commissioner of Customs and the Collector of Customs
sought the lifting of the preliminary and mandatory injunction,
and the resolution of their motion to dismiss. The Court of First
Instance of Manila, however, on January 12, 1965, ordered them
to comply with the preliminary and mandatory injunction, upon
the filing by Francindy Commercial of an additional bond of
P50,000.00. Said customs authorities thereupon filed with this
Court, on January 14, 1965, a petition for certiorari and
prohibition with preliminary injunction. In resolving the question
raised in that case, this Court held:
This petition raises two related issues: first, has
the Customs bureau jurisdiction to seize the goods and
institute forfeiture proceedings against them? and (2)
has the Court of First Instance jurisdiction to entertain
the petition for mandamus to compel the Customs
authorities to release the goods?
Francindy Commercial contends that since the
petition in the Court of first Instance was filed (on
October 26, 1964) ahead of the issuance of the Customs
warrant of seizure and forfeiture (on November 12,
1964),the Customs bureau should yield the jurisdiction
of the said court.
The record shows, however, that the goods in
question were actually seized on October 6, 1964, i.e.,
before Francindy Commercial sued in court. The
purpose of the seizure by the Customs bureau was to
verify whether or not Custom duties and taxes were
paid for their importation. Hence, on December 23,
1964, Customs released 22 bales thereof, for the same
were found to have been released regularly from the
Cebu Port (Petition Annex "L"). As to goods imported
illegally or released irregularly from Customs custody,
these are subject to seizure under Section 2530 m. of
the Tariff and Customs Code (RA 1957).
The Bureau of Customs has jurisdiction and power,
among others to collect revenues from imported
articles, fines and penalties and suppress smuggling and
other frauds on customs; and to enforce tariff and
customs laws (Sec. 602, Republic Act 1957).
The goods in question are imported articles
entered at the Port of Cebu. Should they be found to
have been released irregularly from Customs custody in
Cebu City, they are subject to seizure and forfeiture, the
proceedings for which comes within the jurisdiction of
the Bureau of Customs pursuant to Republic Act 1937.
Said proceeding should be followed; the owner of
the goods may set up defenses therein (Pacis v. Averia,
L-22526, Nov. 20, 1966.) From the decision of the
Commissioner of Customs appeal lies to the Court of
Tax Appeals, as provided in Sec. 2402 of Republic Act
1937 and Sec. 11 of Republic Act, 1125. To permit
recourse to the Court of First Instance in cases of
seizure of imported goods would in effect render
ineffective the power of the Customs authorities under
the Tariff and Customs Code and deprive the Court of
Tax Appeals of one of its exclusive appellate
jurisdictions. As this Court has ruled in Pacis v.
Averia,supra, Republic Acts 1937 and 1125 vest
jurisdiction over seizure and forfeiture proceedings
exclusively upon the Bureau of Customs and the Court
of Tax Appeals. Such law being special in nature, while
the Judiciary Act defining the jurisdiction of Courts of
First Instance is a general legislation, not to mention
that the former are later enactments, the Court of First
Instance should yield to the jurisdiction of the Customs
authorities.
It is the settled rule, therefore, that the Bureau of Customs
acquires exclusive jurisdiction over imported goods, for the
purposes of enforcement of the customs laws, from the moment
the goods are actually in its possession or control, even if no
warrant of seizure or detention had previously been issued by
the Collector of Customs in connection with seizure and
forfeiture proceedings. In the present case, the Bureau of
Customs actually seized the goods in question on November 4,
1966, and so from that date the Bureau of Customs acquired
jurisdiction over the goods for the purposes of the enforcement
of the tariff and customs laws, to the exclusion of the regular
courts. Much less then would the Court of First Instance of Manila
have jurisdiction over the goods in question after the Collector of
Customs had issued the warrant of seizure and detention on
January 12, 1967.
10
And so, it cannot be said, as respondents
contend, that the issuance of said warrant was only an attempt to
divest the respondent Judge of jurisdiction over the subject
matter of the case. The court presided by respondent Judge did
not acquire jurisdiction over the goods in question when the
petition for mandamus was filed before it, and so there was no
need of divesting it of jurisdiction. Not having acquired
jurisdiction over the goods, it follows that the Court of First
Instance of Manila had no jurisdiction to issue the questioned
order of March 7, 1967 releasing said goods.
Respondents also aver that petitioner Martin Alagao, an
officer of the Manila Police Department, could not seize the goods
in question without a search warrant. This contention cannot be
sustained. The Chief of the Manila Police Department, Ricardo G.
Papa, having been deputized in writing by the Commissioner of
Customs, could, for the purposes of the enforcement of the
customs and tariff laws, effect searches, seizures, and
arrests,
11
and it was his duty to make seizure, among others, of
any cargo, articles or other movable property when the same
may be subject to forfeiture or liable for any fine imposed under
customs and tariff laws.
12
He could lawfully open and examine
any box, trunk, envelope or other container wherever found
when he had reasonable cause to suspect the presence therein of
dutiable articles introduced into the Philippines contrary to law;
and likewise to stop, search and examine any vehicle, beast or
person reasonably suspected of holding or conveying such article
as aforesaid.
13
It cannot be doubted, therefore, that petitioner
Ricardo G. Papa, Chief of Police of Manila, could lawfully effect the
search and seizure of the goods in question. The Tariff and
Customs Code authorizes him to demand assistance of any police
officer to effect said search and seizure, and the latter has the
legal duty to render said assistance.
14
This was what happened
precisely in the case of Lt. Martin Alagao who, with his unit, made
the search and seizure of the two trucks loaded with the nine
bales of goods in question at the Agrifina Circle. He was given
authority by the Chief of Police to make the interception of the
cargo.
15

Petitioner Martin Alagao and his companion policemen had
authority to effect the seizure without any search warrant issued
by a competent court. The Tariff and Customs Code does not
require said warrant in the instant case. The Code authorizes
persons having police authority under Section 2203 of the Tariff
and Customs Code to enter, pass through or search any land,
inclosure, warehouse, store or building, not being a dwelling
house; and also to inspect, search and examine any vessel or
aircraft and any trunk, package, or envelope or any person on
board, or to stop and search and examine any vehicle, beast or
person suspected of holding or conveying any dutiable or
prohibited article introduced into the Philippines contrary to law,
without mentioning the need of a search warrant in said
cases.
16
But in the search of a dwelling house, the Code provides
that said "dwelling house may be entered and searched only upon
warrant issued by a judge or justice of the peace. . . ."
17
It is our
considered view, therefor, that except in the case of the search of
a dwelling house, persons exercising police authority under the
customs law may effect search and seizure without a search
warrant in the enforcement of customs laws.
Our conclusion finds support in the case of Carroll v. United
States, 39 A.L.R., 790, 799, wherein the court, considering a legal
provision similar to Section 2211 of the Philippine Tariff and
Customs Code, said as follows:
Thus contemporaneously with the adoption of the
4th Amendment, we find in the first Congress, and in the
following second and fourth Congresses, a difference
made as to the necessity for a search warrant between
goods subject to forfeiture, when concealed in a
dwelling house of similar place, and like goods in course
of transportation and concealed in a movable vessel,
where readily they could be put out of reach of a search
warrant. . . .
Again, by the 2d section of the Act of March 3,
1815 (3 Stat. at L.231, 232, chap. 94), it was made
lawful for customs officers not only to board and search
vessels within their own and adjoining districts, but also
to stop, search and examine any vehicle, beast or person
on which or whom they should suspect there was
merchandise which was subject to duty, or had been
introduced into the United States in any manner
contrary to law, whether by the person in charge of the
vehicle or beast or otherwise, and if they should find
any goods, wares, or merchandise thereon, which they
had probably cause to believe had been so unlawfully
brought into the country, to seize and secure the same,
and the vehicle or beast as well, for trial and forfeiture.
This Act was renewed April 27, 1816 (3 Sta. at L. 315,
chap. 100), for a year and expired. The Act of February
28, 1865, revived 2 of the Act of 1815, above
described, chap. 67, 13 Stat. at L. 441. The substance of
this section was re-enacted in the 3d section of the Act
of July 18, 1866, chap. 201, 14 Stat. at L. 178, and was
thereafter embodied in the Revised Statutes as 3061,
Comp. Stat. 5763, 2 Fed. Stat. Anno. 2d ed. p. 1161.
Neither 3061 nor any of its earlier counterparts has
ever been attacked as unconstitutional. Indeed, that
section was referred to and treated as operative by this
court in Von Cotzhausen v. Nazro, 107 U.S. 215, 219, 27
L. ed. 540, 541, 2 Sup. Ct. Rep. 503. . . .
In the instant case, we note that petitioner Martin Alagao
and his companion policemen did not have to make any search
before they seized the two trucks and their cargo. In their original
petition, and amended petition, in the court below
RemediosMago and ValentinLanopa did not even allege that
there was a search.
18
All that they complained of was,
That while the trucks were on their way, they
were intercepted without any search warrant near the
Agrifina Circle and taken to the Manila Police
Department, where they were detained.
But even if there was a search, there is still authority to the
effect that no search warrant would be needed under the
circumstances obtaining in the instant case. Thus, it has been
held that:
The guaranty of freedom from unreasonable
searches and seizures is construed as recognizing a
necessary difference between a search of a dwelling
house or other structure in respect of which a search
warrant may readily be obtained and a search of a ship,
motorboat, wagon, or automobile for contraband goods,
where it is not practicable to secure a warrant because
the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant must be sought. (47
Am. Jur., pp. 513-514, citing Carroll v. United States, 267
U.S. 132, 69 L. ed., 543, 45 S. Ct., 280, 39 A.L.R., 790;
People v. Case, 320 Mich., 379, 190 N.W., 389, 27 A.L.R.,
686.)
In the case of People v. Case (320 Mich., 379, 190 N.W., 389,
27 A.L.R., 686), the question raised by defendant's counsel was
whether an automobile truck or an automobile could be searched
without search warrant or other process and the goods therein
seized used afterwards as evidence in a trial for violation of the
prohibition laws of the State. Same counsel contended the
negative, urging the constitutional provision forbidding
unreasonable searches and seizures. The Court said:
. . . Neither our state nor the Federal Constitution
directly prohibits search and seizure without a warrant,
as is sometimes asserted. Only "unreasonable" search
and seizure is forbidden. . . .
. . . The question whether a seizure or a search is
unreasonable in the language of the Constitution is a
judicial and not a legislative question; but in
determining whether a seizure is or is not
unreasonable, all of the circumstances under which it is
made must be looked to.
The automobile is a swift and powerful vehicle of
recent development, which has multiplied by quantity
production and taken possession of our highways in
battalions until the slower, animal-drawn vehicles, with
their easily noted individuality, are rare. Constructed as
covered vehicles to standard form in immense
quantities, and with a capacity for speed rivaling
express trains, they furnish for successful commission
of crime a disguising means of silent approach and swift
escape unknown in the history of the world before their
advent. The question of their police control and
reasonable search on highways or other public places is
a serious question far deeper and broader than their
use in so-called "bootleging" or "rum running," which is
itself is no small matter. While a possession in the sense
of private ownership, they are but a vehicle constructed
for travel and transportation on highways. Their active
use is not in homes or on private premises, the privacy
of which the law especially guards from search and
seizure without process. The baffling extent to which
they are successfully utilized to facilitate commission of
crime of all degrees, from those against morality,
chastity, and decency, to robbery, rape, burglary, and
murder, is a matter of common knowledge. Upon that
problem a condition, and not a theory, confronts proper
administration of our criminal laws. Whether search of
and seizure from an automobile upon a highway or
other public place without a search warrant is
unreasonable is in its final analysis to be determined as
a judicial question in view of all the circumstances
under which it is made.
Having declared that the seizure by the members of the
Manila Police Department of the goods in question was in
accordance with law and by that seizure the Bureau of Customs
had acquired jurisdiction over the goods for the purpose of the
enforcement of the customs and tariff laws, to the exclusion of
the Court of First Instance of Manila, We have thus resolved the
principal and decisive issue in the present case. We do not
consider it necessary, for the purposes of this decision, to discuss
the incidental issues raised by the parties in their pleadings.
WHEREFORE, judgment is hereby rendered, as follows:
(a) Granting the writ of certiorari and prohibition prayed for
by petitioners;
(b) Declaring null and void, for having been issued without
jurisdiction, the order of respondent Judge Hilarion U. Jarencio,
dated March 7, 1967, in Civil Code No. 67496 of the Court of First
Instance of Manila;
(c) Declaring permanent the preliminary injunction issued
by this Court on March 31, 1967 restraining respondent Judge
from executing, enforcing and/or implementing his order of
March 7, 1967 in Civil Case No. 67496 of the Court of First
Instance of Manila, and from proceeding in any manner in said
case;
(d) Ordering the dismissal of Civil Case No. 67496 of the
Court of First Instance of Manila; and1wph1.t
(e) Ordering the private respondent, RemediosMago, to pay
the costs.
G.R. Nos. 94054-57 February 19, 1991
VICENTE LIM, SR. and MAYOR SUSANA LIM, vs. HON. NEMESIO
S. FELIX and HON. ANTONIO ALFANEG.R. Nos. 94266-69
February 19, 1991
JOLLY T. FERNANDEZ, FLORENCIO T. FERNANDEZ, JR.,
NONILON A. BAGALIHOG, MAYOR NESTOR C. LIM and MAYOR
ANTONIO KHO, vs. HON. NEMESIO S. FELIX and PROSECUTOR
ANTONIO C. ALFANE
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?
FACTS:
On March 17, 1989, at about 7:30 o'clock in the morning, at the
vicinity of the airport road of the Masbate Domestic Airport,
located at the municipality of Masbate province of Masbate,
Congressman Moises Espinosa, Sr. and his security escorts, 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.
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, NonilonBagalihog,
Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana
Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, ZaldyDumalag and
Rene Tualla alias Tidoy. (Rollo, p. 58, G.R. Nos. 94054-57)
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 NonilonBagalihog 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
261 pages were transmitted to the Provincial Prosecutor of
Masbate. Respondent Acting Fiscal Antonio C. Alfane was
designated to review the case.
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 4 victims and a physical injuries case for inflicting
gunshot wound on the buttocks of Dante Siblante." A motion to
reconsider the Resolution filed by petitioners Vicente Lim, Sr. and
Mayor Susana Lim was denied.
Fiscal Alfane filed with the RTC of Masbate, 4 separate
informations of murder against the 12 accused with a
recommendation of no bail.
Petitioners Vicente Lim, Sr. and Susana Lim filed with us a
verified petition for change of venue.
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:
Acting on the petition for change of venue of
the trial of Criminal Cases Nos. 5811, 5812,
5813, and 5814 from the Regional Trial Court,
Masbate, Masbate to any of the Regional Trial
Courts at Quezon City or Makati, the Court
Resolved to (a) GRANT the aforesaid petition
for transfer of venue in order to avoid
miscarriage of justice (Article VIII, Section
5(4) of the Philippine Constitution); (b)
DIRECT the Clerk of Court, Regional Trial
Court, Masbate, Masbate to transmit the
records of the aforesaid cases to the Executive
Judge, Regional Trial Court, Makati, for raffling
among the other branches of the court; and (c)
ORDER the Regional Trial Court of Masbate,
Masbate to desist from further taking
cognizance of the said cases until such time
that the petition is finally resolved.
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)
xxxxxxxxx
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:
xxxxxxxxx
. . . 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
NonilonBagalihog 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.
This is not a novel question. In the case of Placer
v. Villanueva (126 SCRA 463 [1983]), we ruled that a judge may
rely upon the fiscal's certification of the existence of probable
cause and, on the basis thereof, issue a warrant of arrest.
However, the certification does not bind the judge to come out
with the warrant of arrest. This decision interpreted the "search
and seizure" provision of the 1973 Constitution which provides:
. . . no search warrant or warrant of arrest
shall issue except upon probable cause to be
determined by the judge, or such other
responsible officer as may be authorized by
law, after examination under oath or
affirmation of the complainant and the
witnesses he may produce . . .
We ruled:
. . . The issuance of a warrant is not a mere
ministerial function; it calls for the exercise of
judicial discretion on the part of the issuing
magistrate. This is clear from the following
provisions of Section 6, Rule 112 of the Rules
of Court.
Warrant of arrest, when issued. If the judge
be satisfied from the preliminary examination
conducted by him or by the investigating
officer that the offense complained of has been
committed and that there is reasonable
ground to believe that the accused has
committed it, he must issue a warrant or order
for his arrest.
Under this section, the judge must satisfy
himself of the existence of probable cause
before issuing a warrant or order of arrest. If
on the face of the information the judge finds
no probable cause, he may disregard the
fiscal's certification and require the
submission of the affidavits of witnesses to aid
him in arriving at a conclusion as to the
existence of a probable cause. This has been
the rule since U.S. v. Ocampo (18 Phil. 1) and
Amarga v. Abbas (98 Phil. 739). And this
evidently is the reason for the issuance by
respondent of the questioned orders of April
13, 15, 16, 19, 1982 and July 13, 1982. Without
the affidavits of the prosecution witnesses and
other evidence which, as a matter of long-
standing practice had been attached to the
information filed in his sala, respondent found
the informations inadequate bases for the
determination of probable cause. For as the
ensuing events would show, after petitioners
had submitted the required affidavits,
respondent wasted no time in issuing the
warrants of arrest in the case where he was
satisfied that probable cause existed.
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.
The Court made this clear in the case of
Castillo v. Villaluz (171 SCRA 39 [19891):
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 tills 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 whenever "there
are enough his 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 necessary 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 a
preliminary 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
provisions 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 the
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. . . .
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,
CamiloSanano, 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. Pao 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.
G.R. No. 121234 August 23, 1995
HUBERT J. P. WEBB vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the
RTC of Paraaque, Branch 258
FACTS:
On June 19, 1994, the NBI filed with the DOJ a letter-complaint
charging petitioners Hubert Webb, Michael Gatchalian, Antonio J.
Lejano and 6 other persons,
2
with the crime of Rape with
Homicide.
The DOJ formed a panel of prosecutors headed by Assistant Chief
State Prosecutor Jovencio R. Zuo to conduct the preliminary
investigation
3
of those charged with the rape and killing on June
30, 1991 of Carmela N. Vizconde;
4
her mother Estrellita Nicolas-
Vizconde,
5
and her sister Anne Marie Jennifer
6
in their home at
Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila.
During the preliminary investigation, the NBI presented the
following: (1) the sworn statement dated May 22, 1995 of their
principal witness, Maria Jessica M. Alfaro who allegedly saw the
commission of the crime;
7
(2) the sworn statements of 2 of the
former housemaids of the Webb family in the persons of Nerissa
E. Rosales and Mila S. Gaviola;
8
(3) the sworn-statement of Carlos
J. Cristobal who alleged that on March 9, 1991 he was a passenger
of United Airlines Flight No. 808 bound for NY and who
expressed doubt on whether petitioner Webb was his co-
passenger in the trip; (4) the sworn statement of Lolita Birrer, a
former live-in partner of Gerardo Biong, who narrated the
manner of how Biong investigated and tried to cover up the
crime at bar;
9
(5) the sworn statements of Belen
Dometita and TeofiloMinoza, two of the Vizconde maids, and the
sworn statements of Normal White, a security guard
and MancianoGatmaitan, an engineer. The autopsy reports of the
victims were also submitted and they showed that Carmela had
nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen
(19).
10
The genital examination of Carmela confirmed the
presence of spermatozoa.
11

Before submitting his counter-affidavit, petitioner Webb filed
with the DOJ Panel a Motion for Production And Examination of
Evidence and Documents for the NBI to produce some docs.
The motion was granted by the DOJ Panel and the NBI submitted
photocopies of the documents. It alleged it lost the original of the
April 28, 1995 sworn statement of Alfaro. This compelled
petitioner Webb to file Civil Case No. 951099 in the RTC of
Makati, Br. 63, for the purpose, among others, of obtaining the
original of said sworn statement.
He succeeded, for in the course of its proceedings, Atty. Arturo L.
Mercader, Jr., produced a copy of said original in compliance with
a subpoena ducestecum. The original was then submitted by
petitioner Webb to the DOJ Panel together with his other
evidence. It appears, however, that petitioner Webb failed to
obtain from the NBI the copy of the Federal Bureau of
Investigation (FBI) Report (on the admission to and stay of
petitioner Webb in the US from March 9, 1991 to October 22,
1992) despite his request for its production.
Petitioner Webb claimed during the preliminary investigation
that he did not commit the crime at bar as he went to the US on
March 1, 1991 and returned to the Philippines on October 27,
1992. His alibi was corroborated by Honesto Aragon, Lecinia
Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez,
Edgardo Venture and Pamela Francisco.
13
To further support his
defense, he submitted documentary evidence that he bought a
bicycle and a 1986 Toyota car while in the US on said dates
14
and
that he was issued by the State of California Driver's License No.
A8818707 on June 14, 1991.
15
Petitioner Webb likewise
submitted the letter dated July 25, 1995 of Mr. Robert Heafner,
Legal Attache of the US Embassy, citing certain records tending to
confirm, among others, his arrival at San Francisco, California on
March 9, 1991 as a passenger in United Airlines Flight No. 808.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution
"finding probable cause to hold respondents for trial" and
recommending that an Information for rape with homicide be
filed against petitioners and their co-respondents,
18
On the same
date, it filed the corresponding Information
19
against petitioners
and their co-accused with the RTC of Paraaque. The case was
docketed as Criminal Case No. 95-404 and raffled to Branch 258
presided by respondent judge Zosimo V. Escano. It was, however,
the respondent judge Raul de Leon, pairing judge of Judge
Escano, who issued the warrants of arrest against the petitioners.
Judge Escano voluntarily inhibited himself from the case to avoid
any suspicion about his impartiality considering his employment
with the NBI before his appointment to the bench. The case was
re-raffled to Branch 274, presided by Judge AmelitaTolentino
who issued new warrants of arrest against the petitioners and
their co-accused.
Petitioner Webb voluntarily surrendered to the police authorities
at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners
Gatchalian and Lejano likewise gave themselves up to the
authorities after filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent
Judges de Leon and Tolentino gravely abused their discretion
when they failed to conduct a preliminary examination before
issuing warrants of arrest against them: (2) the DOJ Panel
likewise gravely abused its discretion in holding that there is
probable cause to charge them with the crime of rape with
homicide; (3) the DOJ Panel denied them their constitutional
right to due process during their preliminary investigation; and
(4) the DOJ Panel unlawfully intruded into judicial prerogative
when it failed to charge Jessica Alfaro in the Information as an
accused.
I
Petitioners fault the DOJ Panel for its finding of probable cause.
They insist that the May 22, 1995 sworn statement of Jessica
Alfaro is inherently weak and uncorroborated. They hammer on
alleged material inconsistencies between her April 28, 1995 and
May 22, 1995 sworn statements. They assail her credibility for
her misdescription of petitioner Webb's hair as semi-blonde.
They also criticize the procedure followed by the DOJ Panel when
it did not examine witnesses to clarify the alleged incredulities
and inconsistencies in the sworn statements of the witnesses for
the NBI.
The need to find probable cause is dictated by the Bill of Rights
which protects "the right of the people to be secure in their
persons . . . against unreasonable searches and seizures of
whatever nature . . ."
20
An arrest without a probable cause is an
unreasonable seizure of a person, and violates the privacy of
persons which ought not to be intruded by the State.
21
Probable
cause to warrant arrest is not an opaque concept in our
jurisdiction. Continuing accretions of case law reiterate that they
are 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.
22
Other
jurisdictions utilize the term man of reasonable caution 23 or the
term ordinarily prudent and cautious man.
24
The terms are legally
synonymous and their reference is not to a person with training
in the law such as a prosecutor or a judge but to the average man
on the street.
25
It ought to be emphasized that in determining
probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of our technical rules of
evidence of which his knowledge is nil. Rather, he relies on the
calculus of common sense of which all reasonable men have an
abundance.
Applying these basic norms, we are not prepared to rule
that the DOJ Panel gravely abused its discretion when it
found probable cause against the petitioners.
Petitioners belittle the truthfulness of Alfaro on two (2)
grounds: (a) she allegedly erroneously described
petitioner Webb's hair as semi-blond and (b) she
committed material inconsistencies in her two (2)
sworn statement, thus:
26

xxxxxxxxx
To illustrate, the following are some examples
of inconsistencies in the two sworn statements
of Alfaro:
On whether Alfaro knew Carmela before the
incident in question
First Affidavit: She had NOT
met Carmela before June
29, 1991.
Second Affidavit: "I met her
in a party sometime in
February, 1991."
On whether Alfaro saw the dead bodies
First Affidavit: She did not
see the three dead persons
on that night. She just said
"on the following day I read
in the newspaper that there
were three persons who
were killed . . ."
Second Affidavit: "I peeped
through the first door on
the left. I saw two bodies on
top of the bed, bloodied,
and in the floor, I saw
Hubert on top of Carmela."
On the alleged rape of Carmela Vizconde
First Affidavit: She did not
see the act of rape.
Second Affidavit: She saw
Hubert Webb "with bare
buttocks, on top of Carmela
and pumping, her mouth
gagged and she was
moaning and I saw tears on
her eyes."
On how Webb, Lejano, and Ventura entered the
Vizconde house
First Affidavit: "by jumping
over the fence, which was
only a little more than a
meter high."
Second Affidavit: They
"entered the gate which
was already open."
On whether Alfaro entered the Vizconde house
First Affidavit: She never
entered the house.
Second Affidavit: "I
proceeded to the iron grill
gate leading to the dirty
kitchen."
In its Resolution, the DOJ Panel ruled that these alleged
misdescription and inconsistencies did not erode the
credibility of Alfaro. We quote the pertinent
ruling, viz.:
27

xxxxxxxxx
As regards the admissibility of Alfaro's
statements, granting for purposes of argument
merely that she is a co-conspirator, it is well to
note that confessions of a co-conspirator may
be taken as evidence to show the probability
of the co-conspirator's participation in the
commission of the crime (see People vs.
Lumahang, 94 Phil. 1084).
Furthermore, it is a well-established doctrine
that conspiracy need not be proved by direct
evidence of prior agreement to commit the
crime. Indeed, "only rarely would such a prior
agreement be demonstrable since, in the
nature of things, criminal undertakings are
only rarely documented by agreements in
writing. Thus, conspiracy may be inferred
from the conduct of the accused before, during
and after the commission of the crime,
showing that the several accused had acted in
concert or in unison with each other, evincing
a common purpose or design." (Angelo vs.
Court of Appeals, 210 SCRA 402 [1992],
citations omitted; People vs. Molleda, 86 SCRA
699).
Neither can we discredit Alfaro merely
because of the inconsistencies in her two
sworn statements. InAngelo, the Court refused
to discredit the testimony of a witness
accusing therein petitioner for the slaying of
one GavianoSamaniego even though said
witness failed to name Angelo in his affidavit
which was executed five (5) months earlier.
Granting, the Court continued, that a part of
the witness' testimony is untrue, such
circumstance is not sufficient to discredit the
entire testimony of the witness.
On August 7, 1995, another counsel for
respondent Webb submitted his memorandum
suggesting that the instant complaint "should
not be decided within the month to give time
to the NBI to coordinate with the FBI on the
latter's inquiry into the whereabouts of
Hubert Webb . . . and to check on our U.S.-
based witnesses."
In said memorandum, counsel for respondent
Webb calls for the application of the
maxim falsus in uno, falsus in omnibus arising
from the inconsistencies of Alfaro's
statements, among others. This is untenable.
As held in Angelo:
There is no rule of law
which prohibits a court
from crediting part of the
testimony of a witness as
worthy of belief and from
simultaneously rejecting
other parts which the court
may find incredible or
dubious. The maxim falsus
in uno, falsus in omnibus is
not a rule of law, let alone a
general rule of law which is
universally applicable. It is
not a legal presumption
either. It is merely a
latinism describing the
conclusion reached by a
court in a particular case
after ascribing to the
evidence such weight or
lack of weight that the court
deemed proper.
In the case before us, complainant reasoned
out that Alfaro was then having reservations
when she first executed the first statement
and held back vital information due to her
natural reaction of mistrust. This being so, the
panel believes that the inconsistencies in
Alfaro's two sworn statements have been
sufficiently explained especially specially so
where there is no showing that the
inconsistencies were deliberately made to
distort the truth. Consequently, the probative
value of Alfaro's testimony deserves full faith
and credit. As it has been often noted, ex
parte statements are generally incomplete
because they are usually executed when the
affiant's state of mind does not give her
sufficient and fair opportunity to comprehend
the import of her statement and to narrate in
full the incidents which transpired (People vs.
Sarellana, 233 SCRA 31 [1994]; Angelo vs.
Court of Appeals, supra). In the case at bar,
there is no dispute that a crime has been
committed and what is clear before us is that
the totality of the evidence submitted by the
complainant indicate a prima faciecase that
respondents conspired in the perpetration of
the imputed offense.
We note that the May 22, 1995 sworn statement of Alfaro was
given with the assistance of counsel
28
and consists of six (6)
pages, in single space reciting in rich details how the crime was
planned and then executed by the petitioners. In addition, the
DOJ Panel evaluated the supporting sworn statements of Nerissa
Rosales and Mila Gaviola, former housemaids of the Webbs,
Carlos J. Cristobal, a passenger in United Airlines Flight No. 808
and Lolita Birrer, a paramour of Gerardo Biong. The Panel
assayed their statements as follows:
29

xxxxxxxxx
According to Nerissa E. Rosales, a former
housemaid of the Webb family, on June 29,
1991, between 7:00 o'clock and 8:00 o'clock in
the evening, Hubert was at home inside his
room with two male visitors. She knew it
because she and her co-housemaid, Loany,
were instructed by Hubert to bring them three
glasses of juice. It was the last time she saw
Hubert and was later told by then
Congressman Webb that Hubert was in the
United States.
While Mila S. Gaviola, another former
housemaid of the Webb family and who served
as a laundry woman, claims, aside from
corroborating the statement of Nerissa
Rosales, that on June 30, 1991, she woke up at
around 4:00 in the morning and as what she
used to do, she entered the rooms of the
Webbs to get their clothes to be washed. As a
matter of fact, in that early morning, she
entered Hubert's room and saw Hubert, who
was only wearing his pants, already awake and
smoking while he was sitting on his bed. She
picked up Hubert's scattered clothes and
brought them together with the clothes of the
other members of the family to the laundry
area. After taking her breakfast, she began
washing the clothes of the Webbs. As she was
washing the clothes of Hubert Webb, she
noticed fresh bloodstains in his shirt. After she
finished the laundry, she went to the servant's
quarters. But feeling uneasy, she decided to go
up to the stockroom near Hubert's room to see
what he was doing. In the said stockroom,
there is a small door going to Hubert's room
and in that door there is a small opening
where she used to see Hubert and his friends
sniffing on something. She observed Hubert
was quite irritated, uneasy, and walked to and
from inside his room.
On that day, she noticed Hubert left the house
at around 1:00 in the afternoon and came back
at around 4:00 in the same afternoon and
went inside his room using the secret door of
the house. It was the last time that she saw
Hubert until she left the Webb family.
On the other hand, Carlos J. Cristobal alleged
that on March 9, 1991, at about 10:00 in the
morning, he was at the Ninoy Aquino
International Airport as he was then
scheduled to take the United Airlines Flight
No. 808 at 2:00 in the afternoon for New York.
At the airport's lobby, he saw then
Congressman Freddie Webb with a male
companion. He greeted him and Webb
answered: "Mabutinaman, at ito,
ihahatidkoanganakkopapuntang Florida." He
knew Freddie Webb because he often watched
him then in a television show "Chicks to
Chicks." He observed that the man whom
Freddie Webb referred to as his son, was of
the same height as Freddie. The son referred
to has fair complexion with no distinguishing
marks on his face. He (son of Webb) was then
wearing a striped white jacket. When he and
his children were already inside the plane, he
did not see Freddie anymore, but he noticed
his son was seated at the front portion of the
economy class. He never noticed Freddie
Webb's son upon their arrival in San
Francisco. He claims that, while watching the
television program "DONG PUNO LIVE" lately,
he saw the wife of Freddie Webb with her
lawyer being interviewed, and when she
described Hubert as "moreno" and small built,
with a height of five feet and seven inches tall,
and who was the one who left for United
States on March 9, 1991, he nurtured doubts
because such description does not fit the
physical traits of the son of Freddie, who left
with him for United States on the same flight
and date.
Lolita Birrer, alleged that she know Gerardo
Biong because she had an affair with him for
almost three (3) years and in fact, she had a
child with him who is now four (4) years old.
Their relationship started in February, 1991
until she broke up with him in September
1993. She recalls that on June 29, 1991, at
around 6:00 p.m., Biong invited her to play
mahjong at the canteen of a certain AlingGlo
located at the back of the Paraaque Municipal
Hall.
At about 2:30, in the early morning of January
30, 1991, the radio operator of the Paraaque
police told Biong that he has a phone call.
Before Biong went to the radio room, she was
instructed to take him over and after
somebody won the game, she followed Biong
at the radio room where she overheard him
uttering, "Ano?, Saan? Mahirapyan, Paano, o
sige, aantayinkita, O ano?,dilawna taxi, o sige."
When he put the phone down, Biong told her,
"Mayroonlangakongrerespondehan,
ikawmunaangmaupo" and then, he went
outside the canteen apparently waiting for
somebody. Twenty minutes later, a taxi,
colored yellow, arrived with a male passenger
sitting at the backseat and parked near the
canteen. After it made some signals by
blinking its headlight, Biong rode thereat at
the front seat beside the driver and then, they
left. She was not able to recognize the male
passenger because the window of the taxi was
tinted. Biong came back at around 7:00 of the
same morning and when he arrived, he
immediately washed his hands and face, and
took his handkerchief from his pocket which
he threw at the trash can. She asked him why
he threw his handkerchief and he answered,
"Hmp . . . amoy tae." She inquired what
happened in BF Homes and he replied,
"Putanginangmgabatangiyon,
pinahirapannilaako."
Biong later invited her for breakfast, but they
first went to his office where she observed him
doing something in his steel cabinet while he
appeared to be uneasy. Moments later, Galvan,
another policeman of Paraaque, arrived and
said, "OyBiong, may tatlongpataysa BF,
imbestigahanmo" to which Biong answered,
"Oosusunodnaako." Biong went to the office of
Capt. Don Bartolome who offered to
accompany him and with whom she asked
permission to go with them. Before they
proceeded to the place where the killings
happened, she asked Biong if he knew the
exact address and the latter immediately
responded, "Alamkona yon." She was surprised
because Galvan never told him the place of the
incident.
As soon as they arrived at the Vizconde's
residence, Biong instructed the housemaids to
contact the victim's relatives, while the
security guard fetched the barangay chairman
and the president of the Homeowners
Association. When all these persons were
already in the house, Biong started recording
the wounds of the victim. Inside the master's
bedroom, she saw Biong took a watch from the
jewelry box. Because she could not tolerate the
foul odor, she and Capt. Bartolome went out of
the room and proceeded to the dining area. On
top of the dining table, she saw the scattered
contents of a shoulder bag. Moments later,
Biong came out from the room and proceeded
to the front door to remove the chain lock;
asked the keys from the housemaid and it was
only then that the main door was opened.
Biong noticed a stone in front of the broken
glass of the door and requested Capt.
Bartolome to go inside the servant's quarters
as he doubted the housemaids' claim that they
heard nothing unusual. Using the handle of his
gun, Biong broke the remaining glass of the
door panel. Bartolome then came out of the
room and told Biong that he can hear the
sound of the glass being broken. At the garage,
Biong also noticed same marks on the hood of
the car.
On the following day, at around 12:00 noon,
Biong arrived in her house together with the
Vizconde housemaids. When Biong was
preparing to take a bath, she saw him remove
from his pocket the things she also saw from
Vizconde's residence, to wit: calling cards,
driver's license, ATM card, a crossed check
worth P80,000.00, earrings, a ring, bracelet,
necklace, and the watch he took from the
jewelry box inside the room of the Vizcondes.
These jewelry items were later pawned by
Biong for P20,000.00 at a pawnshop in front of
Chow-Chow restaurant in Santos Avenue,
Paraaque. The next day, she saw Biong took
from his locker at the Paraaque Police Station
an imported brown leather jacket, which the
latter claimed to have been given to him by the
person who called him up in the early morning
of June 30, 1991.
Since then, Biong has been wearing said jacket
until they broke up sometime in 1993. She
observed that Biong seemed not interested in
pursuing the investigation of the Vizconde
case. In fact, when Biong and this group picked
up Mike Gatchalian and brought him to the
Paraaque Police Station, she was surprised
that Biong halted the investigation when
Gatchalian was profusely sweating while being
interrogated. After the father of Gatchalian
talked to Colonel Pureza, the latter called up
and instructed Biong to bring Gatchalian to
him (Colonel Pureza) and that was the last
thing she remembered regarding this case.
The DOJ Panel then weighed theseinculpatory evidence against
the exculpatory evidence of petitioners. It ruled:
30

xxxxxxxxx
The voluminous number of exhibits submitted
by respondent Webb to support his defense of
denial and alibi notwithstanding, the panel,
after a careful and thorough evaluation of the
records, believes that they cannot outweigh
the evidence submitted by the complainant.
Alibi cannot prevail over the positive
identification made by a prosecution witness.
Verily, alibi deserves scant consideration in
the face of positive identification especially so
where the claim of alibi is supported mainly by
friends and relatives (People vs. Apolonia, 235
SCRA 124 [1994]; People vs. Lucas, 181 SCRA
316 and a long line of cases).
Similarly, denial is a self-serving negative
which cannot be given greater evidentiary
weight than the declaration of a credible
witness who testified on affirmative matters
(People vs. Carizo, 233 SCRA 687 [1994]).
Indeed, denial, like alibi, is weak and becomes
even more weaker when arrayed against the
positive identification by the witness for the
prosecution (People vs. Onpaid, 233 SCRA 62
[1994]).
Surprisingly, Gatchalian's defense of alibi was
not corroborated by Lejano, whom he claimed
was with him watching video tapes at the
Syyap residence. Other than claiming that he
"was not and could not have been at or near
the area of the Vizconde residence at the time
of the alleged commission of the crime,"
respondent Lejano proffered no evidence to
substantiate his claim of alibi.
xxxxxxxxx
On the other hand, respondent Webb seeks to
enhance the acceptability of his alibi in the
form of documents tending to show that he
was thousands of miles away when the
incident occurred. We have carefully
deliberated and argued on the evidence
submitted by respondent Webb in support of
his absence from the country since March 9,
1991 to October 26, 1992 and found the same
wanting to exonerate him of the offense
charged. The material dates in this case are
June 29 and 30, 1991. While respondent Webb
may have submitted proof tending to show
that he was issued a California driver's license
on June 14, 1991, there is no showing that he
could not have been in the country on the
dates above mentioned. Neither do we find
merit in the allegation that respondent Webb
personally bought a bicycle on June 30, 1991
in California in view of his positive
identification by Alfaro and the two (2)
househelps of the Webb family who testified
that he was here in the country on said dates.
Additionally, the issuance of receipt
evidencing the purchase of a bicycle in
California is no conclusive proof that the name
appearing thereon was the actual buyer of the
merchandise.
Given these conflicting pieces of evidence of the NBI and
the petitioners, we hold that the DOJ Panel did not
gravely abuse its discretion when it found probable
cause against the petitioners. A finding of probable
cause needs only to rest on evidence showing that more
likely than not a crime has been committed and was
committed by the suspects. Probable cause need not be
based on clear and convincing evidence of guilt, neither
on evidence establishing guilt beyond reasonable doubt
and definitely, not on evidence establishing absolute
certainty of guilt. As well put in Brinegar v. United
States,
31
while probable cause demands more than
"bare suspicion," it requires "less than evidence which
would justify . . . conviction." A finding of probable cause
merely binds over the suspect to stand trial. It is not a
pronouncement of guilt.
Considering the low quantum and quality of evidence
needed to support a finding of probable cause, we also
hold that the DOJ Panel did not, gravely abuse its
discretion in refusing to call the NBI witnesses for
clarificatory questions. The decision to call witnesses
for clarificatory questions is addressed to the sound
discretion of the investigator and the investigator alone.
If the evidence on hand already yields a probable cause,
the investigator need not hold a clarificatory hearing. To
repeat, probable cause merely implies probability of
guilt and should be determined in a summary manner.
Preliminary investigation is not a part of trial and it is
only in a trial where an accused can demand the full
exercise of his rights, such as the right to confront and
cross-examine his accusers to establish his innocence.
In the case at bar, the DOJ Panel correctly adjudged that
enough evidence had been adduced to establish
probable cause and clarificatory hearing was
unnecessary.
II
We now come to the charge of petitioners that
respondent Judge Raul de Leon and, later, respondent
Judge AmelitaTolentino issued warrants of arrest
against them without conducting the required
preliminary examination. Petitioners support their
stance by highlighting the following facts: (1) the
issuance of warrants of arrest in a matter of few hours;
(2) the failure of said judges to issue orders of arrest;
(3) the records submitted to the trial court were
incomplete and insufficient from which to base a finding
of probable cause; and (4) that even Gerardo Biong who
was included in the Information as a mere accessory
had a "NO BAIL" recommendation by the DOJ Panel.
Petitioners postulate that it was impossible to conduct a
"searching examination of witnesses and evaluation of
the documents" on the part of said judges.
The issuance of a warrant of arrest interferes with
individual liberty and is regulated by no less than the
fundamental law of the land. Section 2 of Article III of
the Constitution provides:
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 aforequoted provision deals with the requirements
of probable cause both with respect to issuance of
warrants of arrest or search warrants. The similarities
and differences of their requirements ought to be
educational. Some of them are pointed out by
Professors LaFave and Israel, thus:
32
"It is generally
assumed that the same quantum of evidence is required
whether one is concerned with probable cause to arrest
or probable cause to search. But each requires a
showing of probabilities as to somewhat different facts
and circumstances, and thus one can exist without the
other. In search cases, two conclusions must be
supported by substantial evidence: that the items
sought are in fact seizable by virtue of being connected
with criminal activity, and that the items will be found
in the place to be searched. It is not also necessary that
a particular person be implicated. By comparison, in
arrest cases there must be probable cause that a crime
has been committed and that the person to be arrested
committed it, which of course can exist without any
showing that evidence of the crime will be found at
premises under that person's control." Worthy to note,
our Rules of Court do not provide for a similar
procedure to be followed in the issuance of warrants of
arrest and search warrants. With respect to warrants of
arrest, section 6 of Rule 112 simply provides that "upon
filing of an information, the Regional Trial Court may
issue a warrant for the arrest of the accused." In
contrast, the procedure to be followed in issuing search
warrants is more defined. Thus, Sections 3, 4 and 5 of
Rule 126 provide:
xxxxxxxxx
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 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
things to be seized.
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 any witnesses he
may produce on facts personally known to
them and attach to the record their sworn
statements together with any affidavits
submitted.
Sec. 5.Issuance and form of search warrant.
If the judge is thereupon satisfied of the facts
upon which the application is based, or that
there is probable cause to believe that they
exist, he must issue the warrant, which must
be substantially in the form prescribed by
these Rules.
We discussed the difference in the Procedure of issuing
warrants of arrest and search warrants in Soliven
vs. Makasiar,
33
thus:
xxxxxxxxx
The second issue, raised by 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 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 documents submitted by
the fiscal regarding the existence of probable
cause and, on the basis thereof, issue a
warrant; 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 conclusions 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.
Clearly then, the Constitution, the Rules of Court, and
our case law
34
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
35
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 determinepersonally the probability, not the
certainty of 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.
36

Petitioners' reliance on the case of Allado vs. Diokno
37
is
misplaced. Our Allado ruling is predicated on the utter
failure of the evidence to show the existence of probable
cause. Not even the corpus delicti of the crime was
established by the evidence of the prosecution in that
case. Given the clear insufficiency of the evidence on
record, we stressed the necessity for the trial judge to
make a further personal examination of the
complainant and his witnesses to reach a correct
assessment of the existence or non-existence of
probable cause before issuing warrants of arrest against
the accused. The case at bar, however, rests on a
different factual setting. As priorly discussed, the
various types of evidence extant in the records of the
case provide substantial basis for a finding of probable
cause against the petitioner. The corpus delicti of the
crime is a given fact. There is an eyewitness account of
the imputed crime given by Alfaro. The alibi defense of
petitioner Webb is also disputed by sworn statements
of their former maids. It was therefore unnecessary for
the respondent judges to take the further step of
examining ex parte the complainant and their witnesses
with searching questions.
III
Petitioners also complain about the denial of their
constitutional right to due process and violation of their
right to an impartial investigation. They decry their
alleged hasty and malicious prosecution by the NBI and
the DOJ Panel. They also assail the prejudicial publicity
that attended their preliminary investigation.
We reject these contentions. The records will show that
the DOJ Panel did not conduct the preliminary
investigation with indecent haste. Petitioners were
given fair opportunity to prove lack of probable cause
against them. The fairness of this opportunity is well
stressed in the Consolidated Comment of the Solicitor
General, viz.:
Again, there is no merit in this contention.
Petitioners were afforded all the opportunities
to be heard. Petitioner Webb actively
participated in the preliminary investigation
by appearing in the initial hearing held on June
30, 1995 and in the second hearing on July 14,
1995; and by filing a "Motion for Production
and Examination of Evidence and Documents"
on June 27, 1995 (p. 4, Petition), a "Reply to the
compliance and Comment/Manifestation to the
Motion for Production and Examination of
Evidence" on July 5, 1995 (p. 6, Petition), a
"Comment and Manifestation" on July 7, 1995
(p. 6, Petition), his "Counter-Affidavit" on July
14, 1995 (pp. 6-7, Petition) and a "Motion to
Resolve" on August 1, 1995. Numerous letter-
requests were also sent by the petitioner
Webb's counsel to the DOJ Panel requesting
the latter to furnish him a copy of the reports
prepared by the FBI concerning the
petitioner's whereabouts during the material
period (Annexes "L", "L-1" and "L-2" of the
Supplemental Petition dated August 14, 1995).
In fact, not satisfied with the decision of the
DOJ Panel not to issuesubpoenaducestecum to
Atty. Arturo L. Mercader, Jr., petitioner Webb
filed a "Petition for Injunction, Certiorari,
Prohibition and Mandamus" with the Regional
Trial Court, Branch 63 of Makati in order to
compel said Atty. Mercader, Jr. to produce the
first sworn statement of Alfaro for submission
to the DOJ Panel. (p. 4, Petition) The said court
dismissed the petition after Mercader
produced and submitted to the DOJ Panel the
first sworn statement of Alfaro, without ruling
on the admissibility and credence of the two
(2) conflicting and inconsistent sworn
statements of the principal witness, Alfaro.
(Attached hereto is a copy of the order of
Judge Ruben A. Mendiola, RTC-Makati, Branch
63 dated July 28, 1995) marked as Annex "F."
It must also be pointed out that despite the
declaration by the DOJ Panel that the
preliminary investigation was to be
terminated after the hearing held on July 14,
1995, the panel continued to conduct further
proceedings, e.g. comparison of the photo-
copies of the submitted documents with the
originals on July 17, 1995. (p. 7, Petition) The
panel even entertained the "Response"
submitted by accused Miguel Rodriguez on
July 18, 1995. (p. 17 Resolution) In addition to
these, the panel even announced that any
party may submit additional evidence before
the resolution of the case. (p. 8, Petition) From
the time the panel declared the termination of
the preliminary investigation on July 14,
1995, twenty-seven (27) days elapsed before
the resolution was promulgated, and the
information eventually filed in the Regional
Trial Court of Paraaque on August 10, 1995.
This notwithstanding the directive of Section
3(f) Rule 112 of the Revised Rules of Court
that the investigating officer shall resolve the
case within ten (10) days from the termination
of the preliminary investigation. The DOJ
Panel precisely allowed the parties to adduce
more evidence in their behalf and for the panel
to study the evidence submitted more fully.
This directly disputes the allegation of the
petitioners that the resolution was done with
indecent haste in violation of the rights of the
petitioners. During the period of twenty-seven
(27) days, the petitioners were free to adduce
and present additional evidence before the
DOJ Panel.
Verily, petitioners cannot now assert that they
were denied due process during the conduct of
the preliminary investigation simply because
the DOJ Panel promulgated the adverse
resolution and filed the Information in court
against them.
Petitioners cannot also assail as premature the filing of
the Information in court against them for rape with
homicide on the ground that they still have the right to
appeal the adverse resolution of the DOJ Panel to the
Secretary of Justice. The filing of said Information is in
accord with Department of Justice Order No. 223, series
of 1993, dated June 25, 1993. We quote its pertinent
sections, viz.:
Sec. 4.Non-Appealable Cases; Exceptions. No
appeal may be taken from a resolution of the
Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor
finding probable causeexcept upon showing of
manifest error or grave abuse of
discretion. Notwithstanding the showing of
manifest error or grave abuse of discretion, no
appeal shall be entertained where the appellant
had already been arraigned. If the appellant is
arraigned during the pendency of the appeal,
said appeal shall be dismissed motupropio by
the Secretary of Justice.
An appeal/motion for reinvestigation from a
resolution finding probable cause, however,
shall not hold the filing of the information in
court.
Sec. 2.When to appeal. The appeal must be
filed within a period of fifteen (15) days from
receipt of the questioned resolution by the
party or his counsel. The period shall be
interrupted only by the filing of a motion for
reconsideration within ten (10) days from
receipt of the resolution and shall continue to
run from the time the resolution denying the
motion shall have been received by the
movant or his counsel. (Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows
the filing of an Information in court after the
consummation of the preliminary investigation even if
the accused can still exercise the right to seek a review
of the prosecutor's recommendation with the Secretary
of Justice.
Next, petitioners fault the DOJ Panel for not including
Alfaro in the Information considering her alleged
conspiratorial participation in the crime of rape with
homicide. The non-inclusion of Alfaro is anchored on
Republic Act
No. 6981, entitled "An Act Providing For A Witness
Protection, Security And Benefit Program And For Other
Purposes" enacted on April 24, 1991. Alfaro qualified
under its Section 10, which provides:
xxxxxxxxx
Sec. 10.State Witness. Any person who has
participated in the commission of a crime and
desires to a witness for the State, can apply
and, if qualified as determined in this Act and
by the Department, shall be admitted into the
Program whenever the following
circumstances are present:
(a) the offense in which his testimony will be
used is a grave felony as defined under the
R.P.C. or its equivalent under special laws;
(b) there is absolute necessity for his
testimony;
(c) there is no other direct evidence available
for the proper prosecution of the offense
committed;
(d) his testimony can be substantially
corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any
crime involving moral turpitude.
An accused discharged from an information or
criminal complaint by the court in order that
he may be a State Witness pursuant to
Sections 9 and 10 of Rule 119 of the Revised
Rules of Court may upon his petition be
admitted to the Program if he complies with
the other requirements of this Act. Nothing in
this Act shall prevent the discharge of an
accused so that he can be used as a Witness
under Rule 119 of the Revised Rules of Court.
Upon qualification of Alfaro to the program, Section 12
of the said law mandates her non-inclusion in the
criminal Complaint or Information, thus:
xxxxxxxxx
Sec. 12.Effect of Admission of a State Witness
into the Program. The certification of
admission into the Program by the
Department shall be given full faith and credit
by the provincial or city prosecutor who is
required NOT TO INCLUDE THE WITNESS IN
THE CRIMINAL COMPLAINT OR
INFORMATION and if included therein, to
petition the court for his discharge in order
that he can be utilized as a State Witness. The
court shall order the discharge and exclusion
of the said accused from the information.
Admission into the Program shall entitle such
State Witness to immunity from criminal
prosecution for the offense or offenses in
which his testimony will be given or used and
all the rights and benefits provided under
Section 8 hereof.
The validity of these provisions is challenged by
petitioner Webb. It is urged that they constitute ". . . an
intrusion into judicial prerogative for it is only the court
which has the power under the Rules on Criminal
Procedure to discharge an accused as a state witness."
The argument is based on Section 9, Rule 119
38
which
gives the court the prerogative to approve the discharge
of an accused to be a state witness. Petitioner's
argument lacks appeal for it lies on the faulty
assumption that the decision whom to prosecute is a
judicial function, the sole prerogative of courts and
beyond executive and legislative interference. In truth,
the prosecution of crimes appertains to the executive
department of government whose principal power and
responsibility is to see that our laws are faithfully
executed. A necessary component of this power to
execute our laws is the right to prosecute their
violators. The right to prosecute vests the prosecutor
with a wide range of discretion the discretion of
whether, what and whom to charge, the exercise of
which depends on a smorgasbord of factors which are
best appreciated by prosecutors. We thus hold that it is
not constitutionally impermissible for Congress to enact
R.A. No. 6981 vesting in the Department of Justice the
power to determine who can qualify as a witness in the
program and who shall be granted immunity from
prosecution.
39
Section 9 of Rule 119 does not support
the proposition that the power to choose who shall be a
state witness is an inherent judicial prerogative. Under
this provision, the court, is given the power to discharge
a state witness only because it has already acquired
jurisdiction over the crime and the accused. The
discharge of an accused is part of the exercise of
jurisdiction but is not a recognition of an inherent
judicial function. Moreover, the Rules of Court have
never been interpreted to be beyond change by
legislation designed to improve the administration of
our justice system. R.A. No. 6981 is one of the much
sought penal reform laws to help government in its
uphill fight against crime, one certain cause of which is
the reticence of witnesses to testify. The rationale for
the law is well put by the Department of Justice, viz.:
"Witnesses, for fear of reprisal and economic
dislocation, usually refuse to appear and testify in the
investigation/prosecution of criminal complaints/cases.
Because of such refusal, criminal complaints/cases have
been dismissed for insufficiency and/or lack of
evidence. For a more effective administration of
criminal justice, there was a necessity to pass a law
protecting witnesses and granting them certain rights
and benefits to ensure their appearance in investigative
bodies/courts."
40
Petitioner Webb's challenge to the
validity of R.A. No. 6981 cannot therefore succeed.
Further, petitioners charge the NBI with violating their
right to discovery proceedings during their preliminary
investigation by suppressing the April 28, 1995 original
copy of the sworn statement of Alfaro and the FBI
Report. The argument is novel in this jurisdiction and as
it urges an expansive reading of the rights of persons
under preliminary investigation it deserves serious
consideration. To start with, our Rules on Criminal
Procedure do not expressly provide for discovery
proceedings during the preliminary investigation stage
of a criminal proceeding.
41
Sections 10 and 11 of Rule
117 do provide an accused the right to move for a bill of
particulars and for production or inspection of material
evidence in possession of the prosecution.
42
But these
provisions apply after the filing of the Complaint or
Information in court and the rights are accorded to the
accused to assist them to make an intelligent plea at
arraignment and to prepare for trial.
43

This failure to provide discovery procedure during
preliminary investigation does not, however, negate its
use by a person under investigation when indispensable
to protect his constitutional right to life, liberty and
property. Preliminary investigation is not too early a
stage to guard against any significant erosion of the
constitutional right to due process of a potential
accused. As aforediscussed, the object of a preliminary
investigation is to determine the probability that the
suspect committed a crime. We hold that the finding of a
probable cause by itself subjects the suspect's life,
liberty and property to real risk of loss or diminution. In
the case at bar, the risk to the liberty of petitioners
cannot be understated for they are charged with the
crime of rape with homicide, a non-bailable offense
when the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure
inquisitorial system of preliminary investigation.
Instead, Rule 112 installed a quasi-judicial type of
preliminary investigation conducted by one whose high
duty is to be fair and impartial.
44
As this Court
emphasized in Rolito Go vs. Court of Appeals,
45
"the right
to have a preliminary investigation conducted before
being bound over for trial for a criminal offense, and
hence formally at risk of incarceration or some other
penalty, is not a mere formal or technical right; it is a
substantive right." A preliminary investigation should
therefore be scrupulously conducted so that the
constitutional right to liberty of a potential accused can
be protected from any material damage. We uphold the
legal basis of the right of petitioners to demand from
their prosecutor, the NBI, the original copy of the April
28, 1995 sworn statement of Alfaro and the FBI Report
during their preliminary investigation considering their
exculpatory character, and hence, unquestionable
materiality to the issue of their probable guilt. The right
is rooted on the constitutional protection of due process
which we rule to be operational even during the
preliminary investigation of a potential accused. It is
also implicit in section (3) (a) of Rule 112 which
requires during the preliminary investigation the filing
of a sworn complaint, which shall ". . . state the known
address of the respondent and be accompanied by
affidavits of the complainant and his witnesses as well
as other supporting documents . . ."
In laying down this rule, the Court is not without
enlightened precedents from other jurisdictions. In the
1963 watershed case of Brady v. Maryland 46 the
United States Supreme Court held that "suppression of
evidence favorable to an accused upon request violates
due process where the evidence is material to guilt or
punishment, irrespective of the good faith or bad faith
of the prosecution." Its progeny is the 1935 case
ofMooney v. Holohan 47 which laid down the
proposition that a prosecutor's intentional use of
perjured testimony to procure conviction violates due
process. Thus, evolved jurisprudence firming up the
prosecutor's duty to disclose to the defense exculpatory
evidence in its possession.
48
The rationale is well put by
Justice Brennan in Brady
49
"society wins not only
when the guilty are convicted but when criminal trials
are fair." Indeed, prosecutors should not treat litigation
like a game of poker where surprises can be sprung and
where gain by guile is not punished.
But given the right of petitioners to compel the NBI to
disclose exculpatory evidence in their favor, we are not
prepared to rule that the initial non-production of the
original sworn statement of Alfaro dated April 28, 1995
could have resulted in the reasonable likelihood that the
DOJ Panel would not have found probable cause. To be
sure, the NBI, on July 4, 1995, upon request of
petitioners, submitted a photocopy of Alfaro's April 28,
1995 sworn statement. It explained it cannot produce
the original as it had been lost. Fortunately, petitioners,
on July 28, 1995, were able to obtain a copy of the
original from Atty. Arturo Mercader in the course of the
proceedings in Civil Case No. 951099.
50
As petitioners
admit, the DOJ Panel accepted the original of Alfaro's
April 28, 1995 sworn statement as a part of their
evidence.
51
Petitioners thus had the fair chance to
explain to the DOJ Panel then still conducting their
preliminary investigation the exculpatory aspects of
this sworn statement. Unfortunately for petitioners, the
DOJ Panel still found probable cause to charge them
despite the alleged material discrepancies between the
first and second sworn statements of Alfaro. For
reasons we have expounded, this finding of probable
cause cannot be struck down as done with grave abuse
of discretion.
52
On the other hand, the FBI Report while
corroborative of the alibi of petitioner Webb cannot by
itself reverse the probable cause finding of the DOJ
Panel in light of the totality of evidence presented by
the NBI.
Finally, we come to the argument of petitioner that the
DOJ Panel lost its impartiality due to the prejudicial
publicity waged in the press and broadcast media by the
NBI.
Again, petitioners raise the effect of prejudicial publicity
on their right to due process while undergoing
preliminary investigation. We find no procedural
impediment to its early invocation considering the
substantial risk to their liberty while undergoing a
preliminary investigation.
In floating this issue, petitioners touch on some of the
most problematic areas in constitutional law where the
conflicting demands of freedom of speech and of the
press, the public's right to information, and an accused's
right to a fair and impartial trial collide and compete for
prioritization. The process of pinpointing where the
balance should be struck has divided men of learning as
the balance keeps moving either on the side of liberty or
on the side of order as the tumult of the time and the
welfare of the people dictate. The dance of balance is a
difficult act to follow.
In democratic settings, media coverage of trials of
sensational cases cannot be avoided and oftentimes, its
excessiveness has been aggravated by kinetic
developments in the telecommunications industry. For
sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of facts
and fiction about the case continues unabated even
today. Commentators still bombard the public with
views not too many of which are sober and sublime.
Indeed, even the principal actors in the case the NBI,
the respondents, their lawyers and their sympathizers
have participated in this media blitz. The possibility
of media abuses and their threat to a fair trial
notwithstanding, criminal trials cannot be completely
closed to the press and the public. In the seminal case
of Richmond Newspapers, Inc. v. Virginia,
53
it was wisely
held:
xxxxxxxxx
(a) The historical evidence of the evolution of
the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this
Nation's organic laws were adopted, criminal
trials both here and in England had long been
presumptively open, thus giving assurance
that the proceedings were conducted fairly to
all concerned and discouraging perjury, the
misconduct of participants, or decisions based
on secret bias or partiality. In addition, the
significant community therapeutic value of
public trials was recognized: when a shocking
crime occurs, a community reaction of outrage
and public protest often follows, and
thereafter the open processes of justice serve
an important prophylactic purpose, providing
an outlet for community concern, hostility, and
emotion. To work effectively, it is important
that society's criminal process "satisfy the
appearance of justice," Offutt v. United States,
348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which
can best be provided by allowing people to
observe such process. From this unbroken,
uncontradicted history, supported by reasons
as valid today as in centuries past, it must be
concluded that a presumption of openness
inheres in the very nature of a criminal trial
under this Nation's system of justice, Cf., e.g.,
Levine v. United States, 362 US 610, 4 L Ed 2d
989, 80 S Ct 1038.
(b) The freedoms of speech, press, and
assembly, expressly guaranteed by the First
Amendment, share a common core purpose of
assuring freedom of communication on
matters relating to the functioning of
government. In guaranteeing freedoms such as
those of speech and press, the First
Amendment can be read as protecting the
right of everyone to attend trials so as to give
meaning to those explicit guarantees; the First
Amendment right to receive information and
ideas means, in the context of trials, that the
guarantees of speech and press, standing
alone, prohibit government from summarily
closing courtroom doors which had long been
open to the public at the time the First
Amendment was adopted. Moreover, the right
of assembly is also relevant, having been
regarded not only as an independent right but
also as a catalyst to augment the free exercise
of the other First Amendment rights with
which it was deliberately linked by
the draftsmen. A trial courtroom is a public
place where the people generally and
representatives of the media have a right to
be present, and where their presence
historically has been thought to enhance the
integrity and quality of what takes place.
(c) Even though the Constitution contains no
provision which by its terms guarantees to the
public the right to attend criminal trials,
various fundamental rights, not expressly
guaranteed, have been recognized as
indispensable to the enjoyment of enumerated
rights. The right to attend criminal trials is
implicit in the guarantees of the First
Amendment; without the freedom to attend
such trials, which people have exercised for
centuries, important aspects of freedom of
speech and of the press could be eviscerated.
Be that as it may, we recognize that pervasive and
prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair trial.
Thus, in Martelino, et al. vs. Alejandro, et al.,
54
we held
that to warrant a finding of prejudicial publicity there
must be allegation and proof that the judges have been
unduly influenced, not simply that they might be, by the
barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content,
of the publicity that attended the investigation of
petitioners fatally infected the fairness and impartiality
of the DOJ Panel. Petitioners cannot just rely on the
subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and
beyond knowing. To be sure, the DOJ Panel is composed
of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal
investigation is a factor to consider in determining
whether they can easily be blinded by the klieg lights of
publicity. Indeed, their 26-page Resolution carries no
indubitable indicia of bias for it does not appear that
they considered any extra-record evidence except
evidence properly adduced by the parties. The length of
time the investigation was conducted despite its
summary nature and the generosity with which they
accommodated the discovery motions of petitioners
speak well of their fairness. At no instance, we note, did
petitioners seek the disqualification of any member of
the DOJ Panel on the ground of bias resulting from their
bombardment of prejudicial publicity.
It all remains to state that the Vizconde case will move
to a more critical stage as petitioners will now have to
undergo trial on the merits. We stress that probable
cause is not synonymous with guilt and while the light
of publicity may be a good disinfectant of unfairness,
too much of its heat can bring to flame an accused's
right to fair trial. Without imposing on the trial judge
the difficult task of supervising every specie of speech
relating to the case at bar, it behooves her to be
reminded of the duty of a trial judge in high profile
criminal cases to control publicity prejudicial to the fair
administration of justice.
55
The Court reminds judges
that our ability to dispense impartial justice is an issue
in every trial and in every criminal prosecution, the
judiciary always stands as a silent accused. More than
convicting the guilty and acquitting the innocent, the
business of the judiciary is to assure fulfillment of the
promise that justice shall be done and is done and
that is the only way for the judiciary to get an acquittal
from the bar of public opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack
of showing of grave abuse of discretion on the part of
the respondents. Costs against petitioners.