G.R. No.

L-824

January 14, 1948

HILARIO CAMINO MONCADO, recurrente, vs. EL TRIBUNAL DEL PUEBLO Y JUAN M. LADAW, como Procurador Especial, recurridos. D. Vicente J. Francisco en representacion del recurrente. El Primer Procurador General Auxiliar Sr. Jose B.L. Reyes, Procurador General Auxiliar Sr. Carmelino G. Alvendia, y el Procurador Especial Sr. Juan M. Ladaw en representacion de los recurridos. PABLO, J.: En una solicitud original de certiorari, el recurrente, acusado del delito de traicion en la causa criminal No. 3522 del Tribunal del Pueblo, alega que en 4 de Abril de 1945 a eso de las 6 de la tarde, fue arrestado por los miembros del CIc del Ejercito de los Estados Unidos en su residencia en la Calle San Rafael, No. 199-A, Manila, sin mandamiento de arresto y fue llevado a las prisiones de Muntinglupa, Rizal; que una semana despues su esposa que se habia trasladado a su casa-residencia en la Calle Rosario, No. 3, Ciudad de Quezon, fue invitada por varios miembros de CIC bajo el mando del Teniente Olves para presencia el registro de su casa en la Calle San Rafael; que rehuso seguirles porque no llevaban un mandamiento de registro; per como aseguraron que aun sin su presencia tenian que hacer de todos modos el registro, ella les acompaa; que a su llegada en la casa, vio que varios efectos estaban desparramados en el suelo entre los cuales varios documentos; que El Teniente Olves informo a ella que llevaba consigo algunos documentos para probar la culpabilidad de su esposo; que el 27 de Junio de 1946 el recurrente presento una mocion ante el Tribunal del Pueblo pidendo la devolucion de tales decumentos alegando como razon que han sido obtenidos de su residencia sin mandamiento de registro, y dicho tribunal, con grave abuso de discrecion o exceso de jurisdiccion y siguiendo la doctrina sentada en el asunto de Alvero contra Dizon (76 Phil., 637) la denego; que a menos que este Tribunal ordene al Procurador Especial que los devuelva al recurrente, sus derechos contitucionales garantizados por la constitucion quedarian violados. Y porque no tiene otro remedio sencillo, rapido y adecuado en el curso ordinario de la ley, pide que este Tribunal (a) anule la

orden del Tribunal del Pueblo de 9 Julio de 1946; (b) que dicho Tribunal sea requerido a ordenar la devolucion al recurrente de tales deocumentos; (c) que se dicte una orden de interdicto prohibiendo al Procurador Especial a presentarlos como prueba contra el recurrente en el asunto de traicion. Estas peticiones demuestran que los docmentos son pruebas relevantes, ademas de adminisibles porque no hay regla que lo impide (Model Code of Evidence, 87). Esta bien fundada la contencion del recurrente de que la decision en la causa de Alvero contra Dizon (76 Phil., 637) no es aplicable al caso particular. Los documentos en el asunto de Alvero han sido decomisados por los miembros del CIC cuando el gobierno miliar ejercia en todo su apogeo sus funciones de ejercito de ocupacion. En cambio, cuandose apoderaron en 11 de Abril de 1945, de los docomentos que son objeto de esta causa, el General MacArthur en nombre del Gobierno de los Estados Unidos, ya habia restablecido en 27 de Febrero del mismo ao, el Commonwealth con todos sus poderes y prerrogativas (41 Off. Gaz., 86). El gobierno del Commonwealth estaba ya ejerciendo todos sus poderes constitucionales y legales sin limitacion alguna en la Ciudad de Manila. El Presidente no habia suspendido las garantias constitucionales. Es doctrina bien establecida en Filipinas, Estados Unidos, Inglaterra y Canada que la adminisibilidad de las pruebas no queda afectada por la ilegalidad de los medios de que la parte se ha valido para obtenerla. 1 Es doctrina seguida por muchos aos "hasta que surgio dijo este Tribunal en Pueblo contra Carlos, 47 Jur. Fil., 660 la funesta opinion de la mayoria en la causa de Boyd vs. U.S. en 1885, que ha ejercido perniciosa influencia en muchos Estados sobre opniones judiciales subsiquientes." "El desarrollo de esta doctrina del asunto de Boyd vs. U.S. fue como sigue. (a) La causa de Boyd continuo sin ponerse en tela de juicio en su mismo tribunal durante veinte aos; mientras tanto recibia frecuente desaprobacion en los tribunales de Estado (ante, parrafo 2183). (b) Entonces en el asunto de Adams vs. New York, en 1904, fue implicitamente desechada en el Tribunal Supreme Federal, y los precedentes ortodoxos registrados en los tribunales de Estados (ante, parrafo 2183) fueron expresamente aprobados. (c) Luego, depues de otros veinte aos, en 1914, en la causa de Weeks vs. U.S., el Tribunal Supremo Federal movido en esta epoca no por historia erronea, sino

por un sentimentlismo extraviado retrocedio a la doctrina original de la causa de Boyd, pero con una condicion, a saber, que la ilegalidad del registro y decomiso deberia primero haber sido directamente litigada y establecida mediante una mocion, hecha antes del juicio, para la devolucion de las cosas decomisada; de modo que, despues dicha mocion, y solo entonces, la ilegalidad podria advertirse en el juicio principal y las pruebas asi obtenidas deberian excluirse. ... ." Bajo la autoridad de esta doctrina de Weeks vs. U.S., y otras decisiones de la misma escuela el recurrente ejercita el presente recurso, pidiendo la devolucion de los documentos ilegalmente sacados por los miembros del CIC. La Constitucion grantiza la inviolabilidad de los derechos individuales en los siguinetes terminos; "No se violara el derecho del pueblo a la seguridad de sus personas, moradas, papeles y efectos contra registros y secuestros arresto, a no ser por causa probable que se determinara por el juez despues de examinar bajo juramento o afirmacion al denunciante y a los testigos que presentare, y con descripcion detallada del sitio que se ha de registrar y de las personas que se han de aprehender o de las cosas que han de ser incautadas." (Titulo III, articulo 1.o, parrafo 3.o.) Concurrimos con la reclamacion del recurrente de que, bajo estas grantias consitucionales, tenia derecho a que su casa fuese respetada, sus documentos no debian ser decomisados por ninguna autoridad o agente de autoridad, sin un mandamiento de registro debidamente expedido. Estas limitaciones constitucionales, sin embargo, no llegan hasta el extremo de excluir como pruebas competentes los documentos obtenidos ilegal o indebidamente de el. El Reglamento de los Tribunales, Regla 123, determina cuales son las pruebas que deben ser excluidas, cuales son las admisibles y competentes y no clasifica como pruebas incompetentes las obtenidas ilegalmente. La ley fundamental seada los limites hasta donde pueden llegar los poderes ejecutivo, legislativo y judicial en el ejercicio de su fundciones. El ejecutivo no debe abusar de su poder, vilando el domicilio del ciudadano o incautandose indebidamente de sus bienes y documentos; el legislador no debe aprobar leyes que hacen ilusorio lo sagrdo del hogar y los tribunales deben castigar a los infractores de la constitucion, sin tener en cuenta si son funcionarios publicos o no. Como dijo el Presidente Lumpkin en Williams vs. States, 28 S. E., 624:

As we understand it, the main, if not the sole, purpose of our constitutional inhibitions against unreasonable searches and seizures, was to place a salutary restriction upon the powers of government. That is to say, we believe the framers of the constitutions of the United States and of this and other states merely sought to provide against any attempt, by legislation or otherwise, to authorize, justify, or declare lawful, any unreasonable search or seizure. This wise restriction was intended to operate upon legislative bodies, so as to render ineffectual any effort to legalize by statute what the people expressly stipulated could in no event be made lawful; upon executives, so that no law violative of this constitutional inhibition should ever be enforced; and upon the judiciary, so as to render it the duty of the courts to denounce as unlawful every unreasonable search and seizure, whether confessedly without any color of authority, or sought to be justified under the guise of legislative sanction. For the misconduct of private persons, acting upon their individual responsibility and of their own volition, surely none of the three divisions of government is responsible. If an official, or a mere petty agent of the state, exceeds or abuses the authority with which he is clothed, he is to be deemed as acting, not for the state, but for himself only; and therefore he alone, and not the state, should be held accountable for his acts. If the constitutional rights of a citizen are invaded by a mere individual, the most that any branch of government can do is to afford the citizen such redress as a possible, and bring the wrongdoer to account for his unlawful conduct. . . . . Creemos que los autores de la constitucion filipina nunca han tenido la mas ligera idea conceder inmunidad penal al que viola santidad del hogar, ni a cualquier infractor de la ley criminal por el solo hecho de que las pruebas contra el hayan sido obtenidas ilegalmente. El procedimiento sano, juto y ordenado es que se castigue de acuerdo con el articulo 128 del Codigo Penal Revisado al individuo que, so capa de funcionario pubico, sin mandmiento de registro, indebidamente profana el domicilio de un ciuadano y se apodera de sus papeles y que se castigue tambien a ese ciudadano si es culpable de un delito, no importando si la prueba de su culpabilidad ha sido obtenida ileglmente. El medio empleado en la adquisicion del documento no altera su

valor probatorio. Asi en Stevenson vs. Earnest, 80, Ill. 513, se dijo: "It is contemplated, and such ought ever to be the fact, that the records of courts remains permanently in the places assigned by the law for their custody. It does not logically follow, however, that the records, being obtained, cannot be used as instruments of evidence; for the mere fact of (illegally) obtaining them does not change that which is written in them ... . Suppose the presence of a witness to have been procured by fraud or violence, while the party thus procuring the attendance of the witness would be liable to severe punishment, surely that could not be urged against the competency of the witness. If he could not, why shall a record, although illegally taken from its proper place of custody and brought before the Court, but otherwise free from suspicion, be hold incompetent? "En Com. vs. Dana, 2 Metc., 329. e; Tribunal dijo: "Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant where illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done. But this is no good reason for excluding the papers seized, as evidence, if they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence the Court can take no notice how they were obtained, whether lawfully or unlawfully, nor would they form a collateral issue to determine that question." El recurrente cita el caso de Bureau vs. McDowell en los siguientes terminos: Ciertos libros, papeles, memoranda , etc., de la propiedad privada de McDowell fueron robados por ciertas personas que estaban interesadas en la investigacion que iba a practicar el Grand Jury contra Mcdowell por ciertas ofensa que se decia habia cometido esta, relativa al uso fraudulento del correo. Estos documentos y lobros fueron despues entregados a Burdeau por las personas que los habian rabaod. Burdeau era el ayudante especial del Attorney-General de los Estados Unidos, que iba a tener la direccion y control de la prolos Estados Unidos, que iba a tener la direccion y control de la prosecucion ante el Grand Jury. McDowell trato de impedir que Burdeau utilizara dichos libros y documentos mediante

una mocion que habia presentado en tal sentido. Burdeau se opuso a la mocion, alegando que tenia derecho de usar dichos papeles. La Corte Suprema de los Estados Unidos sostuvo la contencion de Burdeau, diciendo: "We know of no constitutional principal which requires the government to surrender the papers under such circumstances. "The papers having come into possession of the government without a violation of petitioner's rights by governmental authority, we see no reason why the fact that individuals unconnected with the government may have wrongfully taken them, should prevent them from being held for use in prosecuting an offense where the documents are of incriminatory character." (Burdeau vs. McDowell.) "Adoptara nuestra Corte Suprema la doctrina que se anuncia en esta decision? Sometemos que esta es una mala regla de derecho, y a nuestro humilde parecer, no debe adoptarla nuestra Corte." El recurrente cita despues decisiones de algunos Tribunales Supremos de Estado que no han adoptado esta doctrina del Tribunal Supreme Federal. No es Extrao. Cada tribunal adopta su propio criterio. Pero de los 45 Estados de la Union Americana segun el Magistrado Cardozo en su decision dictada en 1926, en People vs. Defore, 150 N. E., 585 catorce adoptaron la doctrina heterodoxa de Weeks y 31 la rechazaron, y segun Wigmore, en 1940, catorce aos despues, seis Estados mas, 37 en total, incluyendo Hawaii y Puerto Rico la rechazaron, manteniendo la doctrina ortodoxa. (8 Wigmore on Evidence, 3.a Ed., paginas 5-11.) Y depues de considerar las varias decisiones de las dos escuelas, Cardozo hizo estas atinadas observaciones sobre la doctrina de Weeks: We are confirmed in this conclusion when we reflect how farreaching in its effect upon society the new consequences would be. The pettiest peace officer would have it in his power, through over-zeal or indiscretions, to confer immunity

upon an offender for crimes the most flagitious. A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed, and the murder goes free. Another search, once more against the law, discloses counterfeit money or the implements of forgery. The absence of a warrant means the freedom of the forger. Like instances can be multiplied. Concretemonos al caso presente. Si los documenteos cuya develucion pide el recurrente, prueban su culpabiblidad del delito de traicion, por que el Estado tiene que devolverlos y librarle de la acusacion? No es esto consentir y convalidar el crimen? No constituye una aprobacion judicial de la comision de los delitos, el de violacion del domicilio del acusado cometido por los miembros del CIC y el de traicion cometido opor el recurrente? Semejante practica fomentaria el crimen en vez de impedir su comision. Ademas, la obtencion de los documentos no altera su valor probatorio. Si hubiera mediado un mandamiento de registro, los documentos serian pruebas admisibles. No hay niguna disposicion constitutucional, ni legal que libere al acusado de toda responsbilidad criminal porque no hubo mandamiento de registro. La vindicta publica exige que los infractores de la ley penal sean castigados. Poner en libertad al culpabale por el simple hecho de que la prueba contra el no ha sido obtenida legalmente es sancionar judicialmente el crimen. Consideremos un caso: Juan que presencia un asesinato, consigue arrebator del asesino el pual, y con el cual le ordena que se de por arrestado y le conduce a la presidencia del pueblo. En el camino se encuentra con Pedro que intercede por el asesino; Juan, por un sentimentalismo mal comprendido, devuelve el pual y ayuda al acusado a hacer desaparecer todo vestigio del crimen para no ser descubierto. Juan y Pedro, no solamente cometen actos indignos debuena ciudadania, sino que deben ser castigados por encubridores (art. 19, cod. Pen. Rev.) El publico nunca llegara a comprender por que estos dos indivduos deben ser castigados y, en cambio, un juzgado, bajo la doctrina de Weeks, puede ordenar la devolucion del documento robado que prueba la culpabilidad de un acusado y dejar libre a este y al que robo el documento.

Otro caso. Por sospechosa catadura, un tal Jose es arrestado por dos policias al lirigirse a la tribuna en donde estan reunidos los altos funcionarios del poder ejecutivo, legislativo y judicial juntamente con los representantes diplomaticos de las naciones amigas para presenciar la parada del aniversario de la independencia; en su bolsillo encuentran una bomba que es capaz de volar toda la tribuna. Otros dos policias, despues de enterarse del arresto, requisan la casa de Jose y encuentran documentos que revelan que el ha recibido ordenes de una organizacion extranjera para polverizar a todo el alto personal del gobierno en la primera oportunidad. Los policias no tienen mandamiento de arresto, ni mandamiento de registro. Es justo que a mocion de Jose en la causa criminal seguida contra el, se ordene por el juzgado la devolucion de los documentos que prueban su crimen? No se daria aliciente al anarquismo con semejante practica? El juzgado desempearia el triste papel de ayudar a los que desean socavar las bases de nuestras institutciones. En U.S. vs. Snyder, 278 Fed., 650, el Tribunal dijo: "To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances." Y en People vs. Mayen, 205 Pac., 435, se dijo: "Upon what theory can it be held that such proceeding (for the return of the articles) is an incident of the trial, in such a sense that the ruling thereon goes up on appeal as part of the record and subject to review by the appellate court? It seems to us rather an independent proceeding to enforce a civil right in no way involved in the criminal case. The right of the defendant is not to exclude the incriminating documents from evidence a civil right in no way involved in the criminal case. The right of the defendant is not to exclude the incriminating documents from evidence, but to recover the possession of articles which were wrongfully taken from him. That right exists entirely apart from any proposed use of the property by the State or whereas it was the invasion of his premises and the taking of his goods that constituted the offense irrespective of what was taken or what use was made of its; and the law having declared that the articles taken are competent and admissible evidence, notwithstanding the unlawful search and seizure, how can the circumstance that the court erred in an independent proceeding for the return of the property on defendant's demand add anything to or detract from the violation of the defendant's constitutional rights in the unlawful search and seizure?

The Constitutional and the laws of the land are not solicitous to aid persons charged with crime in their efforts to conceal or sequester evidence of their iniquity. (8 Wig., 37.) La teoria de Weeks vs. U.S. que subvierte las reglas de prueba no aceptable en esta jurisdiccion: es contraria al sentido de justicia y a la ordenanda y sana adminsitracion de justicia. La doctrina ortodoxa se impone por su consistencia probada a traves de muchimos aos. No hay que abandonarla si se desea que los derechos constitucionales sean respetados y no profanados. Los culpables deben recibir su condigno castigo, aunque las pruebas contra ellos hayan sido obtenidas ilegalmente. 2 Y los que con infraccion de la ley y de la Constitucion se apoderan indebidamente de tales purebas deben tambien ser castigados. Asi es como la ley impera, majestuosa e incolume. Se deniega la solicitud con costas. Moran, Pres., Feria, y Tuason, J., concurs in the result. Padilla, MM., estan conformes.

the CIC Detachment of the United States Army in making said search and effecting said seizure to the end that the activities of pro-Japanese elements and their chances of effectively aiding the Japanese forces which thus still continued to resist might be brought down to a minimum and, if possible, entirely foiled. The difference between this case and the case in L-342, (Alvero vs. Dizon, 43 Off. Gaz., 429), is, to my mind, merely one of degree the principle involved is identical in both cases.

PERFECTO, J., dissenting: Petitioner stands accused of treason before the People's Court, the information against him having been filed by Prosecutor Juan M. Ladaw on February 28, 1946. Almost a year before, on April 4, 1945, at about 6:00 p.m., petitioner was arrested by members of the Counter Intelligence Corps of the United States Army at his residence at 199-A San Rafael St., Manila, without any warrant of arrest, and taken to the Bilibid Prison at Muntinglupa, where he was detained. On April 11, 1945, petitioner's wife, who transferred to their house at 3 Rosario Drive, Quezon City, was approached by several CIC officers, headed by Lt. Olves, and ordered to accompany them to the house at San Rafael to witness the taking of documents and things belonging to petitioner. Upon hearing from the officers that they did not have any search warrant for the purpose, she refused to go with them, but after the officers told her that with or without her presence they would search the house at San Rafael, Mrs. Moncado decide to accompany them. Upon arrival at the house, Mrs. Moncado noticed that their belongings had been ransacked by American officers and that the trunks which she had kept in the attic and in the garage when she left the house, had been ripped open and their contents scattered on the floor. Lt. Olves informed Mrs. Moncado that they were going to take a bundle of documents and things, which were separated from the rest of the scattered things, because they proved the guilt of her husband. Mrs. Moncado protested in vain. No receipt was issued to her.

Separate Opinions HILADO, J., concurring: I concur, but I would further support the conclusion arrive at by the following additional considerations: In April, 1945, when the CIC Detachment of the United States Army made the search at petitioner's house and effect the seizure of his papers and effects mentioned in the majority decision, as is of general knowledge and within the judicial notice of this Court, fighting continued in Luzon; in fact, as late as June, 1945, the cannonades and shellings could still be clearly heard in this City of Manila, and there were still units of the Japanese Army resisting the liberation forces. Under such circumstances, the war was continuing not only technically but actually in the island of Luzon; and the military security and safety of the liberation forces demanded such measures as were adopted by

Subsequently, after making an inventory of their belongings at San Rafael, Mrs. Moncado found the following things missing: (a) Passes issued by Japanese friends for the personal safety and conduct of the petitioners; (b) Correspondences of the petitioner as president of the Neighborhood Association in Quezon City during the Japanese occupation; (c) Correspondence of the petitioner with certain Japanese officers; (d) The personal file and the love letters of Mrs. Moncado to Dr. Moncado and vice versa; (e) Marriage certificate of Dr. Moncado with Mrs. Moncado issued at Reno, Nevada; (f) Private correspondence and letters of Dr. Moncado to and from his Filipino Federation of America in Hawaii and United States: (g) Several law books by Guevara, Albert, Francisco, Harvard Classics (complete set), books on diplomacy, international law; (h) A complete collection of the 'Tribunal' compilation of the same during occupation until the last day of its issuance; (i) Complete collection of American magazines, from 1940 to 1941 Los Angeles Examiner, San Francisco Chronicle, Los Angeles Evening Herald and newspapers edited and owned by Dr. Moncado and published in the United States; and National Geographic Society;

(j) Personal letters of Dr. Moncado with several members of the United States Senate and Congress of the United States including a picture of President Hoover dedicated to Dr. Moncado; (k) Pictures with personal dedication and autograph to Dr. and Mrs. Moncado by actors and actresses from Hollywood, including Mary Astor, Binnie Barnes, Robert Montgomery, Clark Gable, Gary Cooper, Boris Karloff, Wallace Beery, William and Dick Powell, Myrna Loy, Bette Davis and Ceasar Romero; (l) Certificate as first flighter in the Pan-American Airways and even several stickers issued by Pan American Airways for passengers' baggage; (m) A promissory note of Dr. Moncado for fifty thousand pesos (P50,000) in favor of Architect Mr. Igmidio A. Marquez of Quezon City; (n) Three (3) volumes of modern ballroom dancing by Arthur MacMurray of New York, pamphlets of dancing obtained by Dr. Moncado while he was studying dancing at WaldorfAstoria, New York; (o) two (2) volumes of rhumba, zamba and tango obtained from Mexico and Argentina by Dr. Moncado." (Pages 3 and 4, Petition for Certiorari and Injunction.) On June 27, 1946, petitioner filed with the People's Court a motion praying that the return of said documents and things be ordered. The petition was denied on July 9, 1946. Thereupon, petitioner filed with this Supreme Court on August 10, 1946, a petition praying that the lower court's order of July 9, 1946, be set aside, that said court be required to order the return of the documents and things in

question to petitioner, and that the prosecutor be restrained from using and presenting them as evidence at the trial of the criminal case for treason. Before proceeding to consider the question of law raised in this case, we should not ignore three questions of fact raised in the answers of respondents: at to the identity of the documents and things, as to whether they were taken from the house at San Rafael or from the house at Rosario Heights, and as to whether they were taken at the time of petitioner's arrest or later. The fact that the return of the documents and things were opposed to in the lower court by the prosecutor, without disputing their identity, and that in the present proceeding the prosecutor admits to have them in his possession, without disputing their identity or correcting any error of description made by petitioner, convinced us that in petitioner's and respondent's minds there is no disagreement on the identity in question. There should not be any doubt that the papers and things described and claims by petitioner are the ones in the prosecutor's possession, otherwise, instead of objecting to the return on legal grounds, he would have alleged that such things are not in his possession, or he does not know where they are, or that they did not exist at all. Whether the things were taken at San Rafael or at Rosario Heights is completely immaterial. The fact is that is that the reality and existence of things and petitioners' ownership thereof, are undisputed, and that they were taken from a house of petitioner. That they were taken not at the time of petitioner's arrest but much later, is indisputably proved by petitioner's and his wife's depositions not contradicted by any other evidence. This case offers a conclusive evidence that fundamental ideas, rules and principles are in constant need of restatement if they are not to lose their vitality. So that they may continue radiating the sparks of their truth and virtue, they need the repeated pounding of intense discussion, as the metal hammered on the anvil. To make them glow with all their force, purity and splendor, they need the continuous smelting analysis and synthesis as the molten iron in a Bessemer furnace. Otherwise, they become rusty, decayed or relegated as useless scraps in the dumping ground of oblivion. What is worse, they are frequently replaced by their antitheses, which pose with the deceitful

dazzle of false gods, clothed in tinsel and cellophane. The risks always lurking at every turn of human life, exacts continuous vigilance. Human minds must always be kept well tempered and sharpened as damask swords, ready to decapitate the hydra of error and overthrow the gilded idols from the muddy pedestals of pretense and imposture. May the government profit from an illegality, an unconstitutional act, or even a crime to serve its aims, including the loftiest? May justice be administered by making use of the fruits of a lawless action? If a private individual, when profiting from the fruits of a criminal offense, is punished by law as an accessory after the fact, why should the government or an official system of justice be allowed to ignore and mock the moral principle which condemns the individual? Is there a moral standard for the government different from the one by which private conduct is measured? While a private citizen is not allowed to violate any rule of decency and fair play, may the government follow a procedure which shock the common sense of decency and fair play? If a person cannot enrich himself with stolen property, why should a government be allowed to profit and make use of property tainted by theft or robbery or smeared with the blood of crime? The above are among the elemental questions that must be answered in this case, if we are not lacking the moral courage to face all the issues raised by the parties. Other questions concern personal liberty as affected by illegal detention, personal security against illegal searches and seizures, judicial emancipation from colonial mental attitude. Respondents urge us to follow the decision in Alvero vs. Dizon (L-342), which, besides having been rendered by a second Supreme Court, whose existence is violative of the Constitution, cannot claim better merit than a servile adherence to a wrong legal doctrine, decorated by the halo of authority of courts of a former metropolis. There are minds that forget that duty of thinking by ourselves and of not sticking to the teachings of foreign mentors has become more imperative since July 4, 1946. The seizure of the papers and effects in questions, having been made without any search warrant, was and is illegal, and was effected in open violation of the following provisions of the Constitution:

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 determine 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. (Article III, section 1 [3] of the Constitution.) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when public safety and order require otherwise. (Article III, section 1 [5] of the Constitution.) The seizure was also in open violation of sections 3, 10, and 11 of Rule 122, which are as follows: SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause to be determined by the judge or justice of the peace after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. SEC. 10. Receipt for the property seized. The officer seizing property under the warrant must give a detailed receipt for the same to the person on whom or in whose possession it was found, or in the absence of any person, must, in the presence of at least two witnesses, leave a receipt in the place in which he found the seized property. SEC. 11. Delivery of property and inventory there of to court. The officer must forthwith deliver the property to the justice of the peace or judge of the municipal court or of the Court of First Instance which issue the warrant, together with a true inventory thereof duly verified by oath.

Even more, the illegality and unconstitutionality amounted to two criminal offenses, one of them heavily punished with prision correccional. The offenses are punished by articles 128 and 130 of the Revised Penal Code, which reads: 4. ART. 128. Violation of domicile. The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who, not being authorized by judicial order, shall enter any dwelling against the will of the owner thereof, search papers or other effects found therein without the previous consent of such owner, or, having surreptitiously entered said dwelling, and being required to leave the premises, shall refuse to do so. If the offense be committed in the nighttime, or if any papers or effects not constituting evidence of a crime be not returned immediately after the search made by the offender, the penalty shall be prision correccional in its medium and maximum periods. ART. 130. Searching domicile without witnesses. The penalty of arresto mayor in its medium and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper, shall search the domicile, papers or other belongings of any persons, in the absence of the latter, any member of his family, or in their default, without the presence of two witnesses residing in the same locality. The main authority upon which respondents rely is the decision of the Supreme Court of the United States in Bordeau vs. MacDowell (256 U.S., 465), the same followed in the decision in Alvero vs. Dizon (L-342). In the Bordeau case, certain documents were stolen from MacDowell. Upon finding that the documents contained evidence of the fraudulent use of the mails by MacDowell, the robbers delivered them to Bordeau, in charge of the prosecution against MacDowell. The latter filed a motion to prevent Bordeau from using the documents as evidence against him. The federal Supreme Court denied the motion on the ground that there is no law or constitutional principle requiring the government to surrender papers which may have come into its possession where the government has not violated the constitutional

rights of the petitioner. Two of the greatest American Justices, Justices Holmes and Brandeis, whose dissenting opinions, written twenty years ago, are now the guiding beacons of the Supreme Court of the United States, dissented, the latter saying: At the foundation of our civil liberty lies the principles which denies to government officials exceptional position before the law, and which subjects them to the same rules of conduct that commands to the citizen. And in the development of our liberty insistence upon procedural regularity has been a large factor. Respect for law will not be advanced by resort, in its enforcement, to means which shock the common man's sense of decency and fair play. Taking aside the great intellectual, moral and judicial prestige of the two dissenters, the poignant logic and rock-bottom sense of truth expressed by Justice Brandeis is enough to complete discredit the majority doctrine in the Bordeau case, a doctrine that in principle and by its evil effects appears to be irretrievably immoral. To merit respect and obedience, a government must be just. Justice cannot exist where the good is not distinguished from the wicked. To be just, the government must be good. to be good it must stick to the principles of decency and fair play as they are understood by a common man's sense, by universal conscience. Good ends do not justify foul means. No one should profit from crime. Principles are not to be sacrificed by any purpose. What is bad per se cannot be good because it is done to attain a good object. No wrong is atoned by good intention. These are some of the maxims through which the common sense of decency and fair play is manifested. Reason is a fundamental characteristic of man. there is no greater miracle than when its first sparks scintillated in the mind of a child. What before had only the vegetative life of a plant or the animal life of a mollusk or frog, suddenly begins to wield the prodigious power of understanding and intelligent grasping of the meaning and relations of the things with which he is in direct or remote contact though his senses. The power of understanding brings forth the freedom of choice. This freedom develops the faculty of discrimination

between good and evil. That discrimination is further developed into a sense of justice. While the advent of the astounding miracle of reason has so much kindled the pride of men, to the extent of symbolizing it wit the fire stolen by Prometeus from the heavens, and of proclaiming himself as the king of the creation, man had taken millennia of struggles in order to develop the basic ideas which insure his survival and allow him to enjoy the greatest measure of well-being and happiness. He soon discovered that society is an indispensable condition to attain his ends. As a consequence, he fought against all anti-social ideas and conduct and had to discover or invent and then develop the principles and qualities of sociability. The struggle has been long and it will have to continue until the end of the centuries. It is the same eternal struggle between truth and error, between right and wrong. While man, in the multifarious ensemble of the universe, seems to be the lone and exclusive holder of the divine fire of reason, he had so far failed to find the key to always correct thinking. The solution to the failure of reason is riddle yet to be unlocked. Man is easily deceived into committing blunders or led into the most absurd aberrations. The mysterious genes which keep uninterrupted the chain of heredity, while permitting the transmission of the best qualities and characteristics, seems to lack the power of checking and staving off the tendencies of atavism. In the moral ctetology, either kind of characteristics and qualities may be originated and developed. The inconsistency of respondents is thus explainable. While they would raise their brows at the mere insinuation that a private individual may justifiably profit by the result s of fruits of a criminal offense, they would not measure the government with the same moral standard. That the inconsistency may be explained by its genesis is no ground why we should surrender to it. To set two moral standard, a strict one for private individuals and another vitiated with laxity for the government, is to throw society into the abyss of legal ataxia. Anarchy and chaos will become inevitable. Such a double standard will necessarily be nomoctonous. The idea of double moral standard is incompatible with the temper and idiosyncracy of social order established by our constitution, and is repugnant to its provisions. all government authority emanates for the people in whom sovereignty resides. The Filipino people ordained and promulgated the constitution "in order to established a government that shall embody their

ideals." Among these ideals are justice, democracy, the promotion of social justice equal protection of the laws to everybody. Such ideals are trampled down by the adoption of the double moral standard which can be taken its place in the ideology of the supporters of absolute monarchies. Their is the maxim that "the king can do no wrong." The iniquities and misery havocked by such maxim would need hundreds or thousands of volumes to record them. The infamy of Japanese occupation gave our people the bitter taste of the operation of the double moral standard. It is the antithesis of the golden rule. It would place government in a category wholly apart from humanity, notwithstanding its being a human institution, an unredeemable absurdity. From "Brandeis, A Free Man's Life" by Alpheus Thomas Mason (pp. 568 and 569), we quote an analogous legal situation: "In the famous wire-tapping case Chief Justice Taft, delivering the opinion, overruled the defendants' claim that the evidence obtained when government agents tapped their telephone wires violated either unreasonable searches and seizures or the constitutional protection against self-incrimination. No tapped wires entered their homes and offices, Taft reasoned, so there was neither search nor seizure. "For Justice Brandeis such a narrow construction degraded our great charter of freedom to the level of a municipal ordinance. Quoting Chief Justice Marshall's famous 'We must never forget that it is a Constitution we are expounding' he pointed out that just as the power of Congress had by judicial interpretation been kept abreast of scientific progress, and extended the Fundamental Law to objects of which the Founding Fathers never dreamed, so also must the judges in construing limitations on the powers of Congress be ever mindful of changes brought about by discovery and invention. To have a living Constitution, limitations on power no less than grants of power must be construed broadly. 'Subtler and more far-reaching means of invading privacy have become available to the government,' Brandies observed. ... The progress of science in furnishing the government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. . . .

"'Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means to declare that the government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution. . . . "'The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness,' he emphasized. "They recognized the significance of man's spiritual nature, of his feelings and of his intellect. they knew that only a part of the pain, pleasure, and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the government, the right to be let alone the most comprehensive of right and the right most valued by civilized men. . . . "'Experience should teach us to be most on our guard to protect liberty when the government's purpose are beneficent. Me born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, wellmeaning, but without understanding.'" (Olmstead vs. U.S., 277 [U.S.] 438, [1928], pp. 473-474, 478, 479, 485.) The argument that goods and personal properties illegally taken, stolen, or snatched from the owner of possessor without a duly issued search warrant can be retained by the prosecution for use as evidence in a criminal case instituted is initiated by an original and basic flaw. The argument rests on the assume existence or commission of a crime as its minor premise. but, under the orderly processes of law, the assumption has yet to be proved, and it is impossible to be proved before it can be of any use to support and clinch the argument. The prosecution is called upon to make the assumption that the goods and properties in question are evidence of a crime. To be valid, the assumption has to presuppose the commission or existence of the crime. That presupposition, in order to be valid, must in turn stand on an authoritative pronouncement which can only be made in a final and executory decision rendered by a court of justice. The prosecution cannot make a conclusive pronouncement, as to the existence or commission of a crime, the basic fact

which, under the argument, will entitled the prosecution to retain and use the goods and properties in question. The argument assumes a fact the existence of which still remains to be proved and continues to be enveloped in the mists of the realm of uncertainties, which fact may lead to the disputed right of the prosecution to retain the goods and properties illegally seized as essential evidence of the crime. The line of reasoning the build up the argument can be restated in more abstract terms as follows: justify the means by their necessity to attain an end by starting from the premise that the end was accomplished. Such a reasoning process is fundamentally subversive to logic and is incompatible with the natural workings of the human mind. The rules governing the phenomena of diffusion and osmosis, of permeability and isotonic equilibrium, of assimilation and waste dislodgment, of development and reproduction, like all laws of life, are uniform and universal. Whether in the nuclear chromatin or the cytosome of a single protoplasmic cell of amoeba or in the sinews of the heaviest marsupial, whether in the formation of the smallest bud or in the formation of the smallest bud or in the display of color and aroma by the most beautiful flower, whether in the development of a frog or in the attainment of the perfect curves and velvety skin of a lovely girl, the uniformity and universality of biological laws are manifested unrelentlessly. Any disregard of them is fatal, and will lead to irretrievable disaster and destruction. Moral standards are the laws of social life. In a different plane and order, they are but biological laws, governing the vital processes and functions of social organism. They are and should be uniform and universal and no single unit or organ of human society can disregard them or any one of them without alluring catastrophic consequences. Our decision is to grant all the prayers of the petition, and it was so ever since February 24, 1947, when this Court took the vote for the disposal of this case. In stating this fact we do not want to put any blame on the distinguished member who penned the decision now to be promulgated. In justice to him, we may record that the drafting of the majority decision was transferred and entrusted to him many months after a final vote had been taken on the case, and it did not take him more than a month to have ready the majority opinion. In exposing the fact we mean only to emphasize the crying need of changing a situation or a system of procedure that permits the promulgation of our decisions one year or more after a case has been submitted to us for final action. It is only part of the crusade to curtail judicial delay which we felt our

duty to engaged in since it had been our privilege to sit in the Supreme Court, whose vantage in the legal field imposes upon the members thereof the role of leadership in legal thought and practice for the most effective administration of justice.

BENGZON, J., dissenting: Sanctity of the home is a by-word anywhere, anytime. The house of man was the first house of God. In Rome the citizen's dwelling was a safe asylum. Invasion thereof was anathema. Down through the centuries respect for men's abodes has remained a heritage of civilization. In England, the poorest man could in his cottage, defy all the forces of the Crown. "It may be frail; it is roof may shake; the wind may blow through it, the storm may enter; the rain may be enter; but the King England may not enter; all his forces dare not cross the threshold of the ruined tenement." His home was indeed his castle. And in the United States: "The right of the citizen to occupy and enjoy his home, however mean or humble, free from arbitrary invasion and search, has for centuries been protected with the most solicitous care. . . . "The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to break in upon the privacy of a home and subject its occupants to the indignity of a search for the evidence of crime, without a legal warrant procured for that purpose. No amount of incriminating evidence, whatever its source, will supply the place of such warrant. At the closed door of the home, be it place or hovel, even bloodhounds must wait till the law, by authoritative process, bids it open. . . . " (McLurg vs. Brenton, 123 Iowa, 368, quoted in 20 Phil., 473.) Logical culmination and practical application of the above principles embodied in our Organic Laws, is the ruling we announced in Alvarez vs. Court of First

Instance of Tayabas, 64 Phil., 33, that documents unlawfully seized in a man's home must be returned irrespective of their evidentiary value provided seasonable motions are submitted. We followed the Federal rule in Boyd vs. U.S, 116 U.S., 616 and many others. We had said before that "it is better oftentimes that crimes should be unpunished than that the citizen should be liable to have his premises invaded, his desk broken open, his private books, letters, and papers exposed to prying curiosity, ... under the direction of a mere ministerial officer" ... insensitive perhaps to the rights and feelings of others. (U.S. vs. De los Reyes and Esguerra, 20 Phil., 472, citing Cooley, Constitutional Limitations.) In the Alvarez decision we reflected that "of all rights of a citizen few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves the exemption of his private affairs, books, and papers from the inspection and scrutiny of others," and while the power to search and seize is necessary to public welfare, still it mist be exercised without transgressing the constitutional rights of citizens, because the enforcement of statutes is never sufficiently important to justify violation of the basic principles of government. It is agreed that the fundamental rights of the individual guaranteed by the Constitution, must be given such a liberal construction of strict construction as will be in his favor, to prevent gradual encroachment or stealthy depreciation of such fundamental rights. (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231 Pac., 965; 237 Pac., 373.) Our constitution in its Bill of Rights decrees that "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. (Constitution, Article III, section 1 [3].) This is an improvement over the provisions of the Jones Law regarding warrants and seizures. It was designed to make our Constitution "conform entirely" to the Fourth Amendment of the U.S. Constitution. (Aruego, Framing of the Philippine Constitution, Vol., II, p. 1043.)

The split between several State Supreme Courts on one side and the Federal Supreme Court on the other, about the admissibility of evidence obtained through illegal searches and seizures, was familiar to this Court (People vs. Carlos, 47 Phil., 626, 630) before it voted to adopt the Federal doctrine in Alvarez vs. Court of First Instance of Tayabas, supra. This last doctrine, applied in several subsequent cases (People vs. Sy Juco, 64 Phil., 667; Rodriguez vs. Villamil, 37 Off. Gaz., 2416) was probably known to the Constitutional Convention that, the addition, made the Constitutional mandate on the point more complete and explicit, copying exactly the wording of the Federal Constitution, a circumstance which, coupled with the citation of Boyd vs. U.S., showed adherence to the Federal doctrine that debars evidence obtained by illegal search or unlawful seizure. It is significant that the Convention readily adopted the recommendation of the Committee on Bill of Rights after its Chairman had spoken, explaining the meaning and extent of the provision on searches and seizures and specifically invoking the United States decisions of Boyd vs. U.S., 116 U.S., 616 and Gould vs. U.S., 225 U.S., 298, which the majority of this Court would now discard and overrule. (Aruego op. cit. Vol. I, P. 160; Vol., II, pp. 1043, 1044.) Therefore, it is submitted, with tall due respect, that we are not at liberty now to select between two conflicting theories. The selection has been made by the Constitutional Convention when it impliedly chose to abide by the Federal decisions, upholding to the limit the inviolability of man's domicile. Home! The tie that binds, the affection that gives life, the pause that soothes, all nestle there in an atmosphere of security. Remove that security and you destroy the home. Under this new ruling the "King's forces" may now "cross the threshold of the ruined tenement" seize the skeleton from the family closet and rattle it in public, in court, to the vexation or shame of the unhappy occupants. That those forces may be jailed for trespass, is little consolation. That those forces may be pardoned by the King, their master, suggests fearful possibilities. The sanctuary, the castle, are gone with the wind. An opinion of Mr. Justice Cardozo in the Court of Appeals of New York is cited as authority for the majority view (People vs. Defore, 150 N.E., 585). Yet it is

markworthy that, in New York, protection against unreasonable searches and seizures is not promised by the Constitution of the State but by a mere statute. (Civil Rights of Law.) (See the same case, and 56 C.J., p. 1156.) New York is the only state that denies this privilege the status of a constitutional prerogative. (Supra.) Hence the precedent is obviously inconclusive. Moreover, admitting, for purposes of argument only, that the Alvarez decision is legally erroneous, I maintain that the new doctrine should apply to future cases not to herein petitioner who had relied on it. In Santiago and Flores vs. Valenzuela, No L-670, April 30, 1947 (44 Off. Gaz., 3291, 3296) I argued for that proposition as follows: . . . The reserved right to upset previous decisions is likewise qualified by the proposition that such upsetting shall have prospective not retroactive effect. In Douglass vs. Pike Country, 101 U.S. 677 at p. 687, it was declared, "The true rule (of stare decisis) is to give a change of judicial construction ... the same effect in its operation" ... as to "a legislative amendment, i.e., make it prospective but not retroactive." And in Great Northern R. Co. vs. Sunburst Oil & Ref. Co., 287 U.S., 358, the Supreme Court, through Mr. Justice Cardozo, said: "A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions. Indeed there are cases intimating, too broadly (cf. Tidal Oil Co. vs. Flanagan, 263 U.S., 444; 68 Law. ed., 382; 44 S Ct., 197, supra), that it must give them that effect; but never has doubt been expressed that it may so treat them if it pleases, whenever injustice or hardship will thereby be averted Gelpcke vs. Dubuque, 1 Wall., 175; 17 Law. ed., 25; Douglass vs. Pike Country, 101 U. S 677, 687; 25 Law. ed., 968, 971; Loeb vs.

Columbia Twp. 179 U. S., 472, 492; 45 Law, ed., 280, 290, 21 S. Ct., 174, etc." This view is not unanimous, I know. However, inasmuch as one of the principal arguments of the opposing school of thought is that it makes the overruling decision a mere "declaratory judgment", and since that objection is untenable in this jurisdiction where declaratory relief is permitted (Rule 66), the view herein advocated future operation only future operation only should all the more be acceptable to our system of jurisprudence. More about this in the future, if I should happen to agree to an overruling of previous decisions and the question should hinge on its backward or forward application. For the present, enough to note some of the abundant literature on the point.1

BRIONES, M., disidente: Disiento de la ponencia. Estimo que debe concederse la solicitude presentada por el recurrente. Creo que en esta jurisdiccion debemos adherirmos a la jurisprudencia sentada en el asunto de Weeks vs. U.S. que se cita en la decision de la mayoria. Si en una democracia como la norteamericana ya madura y bien solidficada, fortalecida por una tradicion de siglos de respeto a las libertades individuales y ciudadanas y por el temperamento ecuanime y sereno de una raza tan admirable como la anglosajona se ha considerado necesario garantizar los fueros del ciudadano bajo la coraza de semejante doctrina, con mayor razon debemos tener y asegurar esas garantias en un democracia como la nuestra, joven, que apenas esta haciendo los pinitos iniciales en el camino de la independencia politica, y donde la demagogia y la anarquia y las tendencias peligrosas al establecimiento de la libertad a tanta costa ganada. Paras, M., conforme.

G.R. No. L-19550

June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners, vs. HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City, respondents. Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners. Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro, Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for respondents. CONCEPCION, C.J.: Upon application of the officers of the government named on the margin1 hereinafter referred to as Respondents-Prosecutors several judges2 hereinafter referred to as Respondents-Judges issued, on different dates,3 a total of 42 search warrants against petitioners herein4 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 Revised Penal Code." Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and the Rules of Court because, inter alia: (1) they do not describe with particularity the documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures were made in an illegal manner; and (5) the documents, papers and cash money seized were not delivered to the courts that issued the warrants, to be disposed of in accordance with law on March 20, 1962, said petitioners filed with the Supreme Court 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. In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid and have been issued in accordance with law; (2) that the defects of said warrants, if any, were cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in evidence against herein petitioners, regardless of the alleged illegality of the aforementioned searches and seizures. On March 22, 1962, 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.7 Thus, the documents, 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. 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.8 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. 11 Indeed, it has been held: . . . that the Government's action in gaining possession of papers belonging to the corporation did not relate to nor did it affect the personal defendants. If these papers were unlawfully seized and thereby the constitutional rights of or any one were invaded, they were the rights of the corporation and not the rights of the other defendants. Next, it is clear that a question of the lawfulness of a seizure can be raised only by one whose rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights of defendants whose property had not been seized or the privacy of whose homes had not been disturbed; nor could they claim for themselves the benefits of the Fourth Amendment, when its violation, if any, was with reference to the rights of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question

of the admissibility of the evidence based on an alleged unlawful search and seizure does not extend to the personal defendants but embraces only the corporation whose property was taken. . . . (A Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.) With respect to the documents, papers and things seized in the residences of petitioners herein, the aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued by this Court, 12 thereby, in effect, restraining herein Respondents-Prosecutors from using them in evidence against petitioners herein. In connection with said documents, papers and things, two (2) important questions need be settled, namely: (1) whether the search warrants in question, and the searches and seizures made under the authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative, whether said documents, papers and things may be used in evidence against petitioners herein.1wph1.t 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. Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the 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 Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words, no specific 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. 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 Revised Penal Code," as alleged in the aforementioned applications without reference to any determinate provision of said laws or To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers. This is precisely the evil sought to be remedied by the constitutional provision above quoted to outlaw the so-called general warrants. It is not difficult to imagine what would happen, in times of keen political strife, when the party in power feels that the minority is likely to wrest it, even though by legal means. Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart, 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, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements. 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. Relying upon Moncado vs. People's Court (80 Phil. 1), RespondentsProsecutors maintain that, even if the searches and seizures under consideration were unconstitutional, the documents, papers and things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation, however, we are unanimously of the opinion that the position taken in the Moncado case must be abandoned. Said position was in line with the American common law rule, that the criminal should not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the constitutional prohibition against unreasonable searches and seizures is protected by means other than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages against the searching officer, against the party who procured the issuance of the search warrant and against those assisting in the execution of an illegal search, their criminal punishment, resistance, without liability to an unlawful seizure, and such other legal remedies as may be provided by other laws. However, most common law jurisdictions have already given up this approach and eventually adopted the exclusionary rule, realizing that this is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. In the language of Judge Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong will that wrong be repressed.18 In fact, over thirty (30) years before, the Federal Supreme Court had already declared: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.19 This view was, not only reiterated, but, also, broadened in subsequent decisions on the same Federal Court. 20 After reviewing previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.): . . . Today we once again examine the Wolf's constitutional documentation of the right of privacy free from unreasonable state intrusion, and after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a State. Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the

Fourteenth, it is enforceable against them by the same sanction of exclusion as it used against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be "a form of words," valueless and underserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to permit this Court's high regard as a freedom "implicit in the concept of ordered liberty." At the time that the Court held in Wolf that the amendment was applicable to the States through the Due Process Clause, the cases of this Court as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the substantive protections of due process to all constitutionally unreasonable searches state or federal it was logically and constitutionally necessarily that the exclusion doctrine an essential part of the right to privacy be also insisted upon as an essential ingredient of the right newly recognized by the Wolf Case. In short, the admission of the new constitutional Right by Wolf could not tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule to "is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it" . . . . The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of

privacy by state officers is, therefore constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by its Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice. (emphasis ours.) Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction against unreasonable searches and seizures. 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. Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee under consideration, overlooks the fact that violations thereof are, in general, committed By agents of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power they do not have. Regardless of the handicap under which the minority usually but, understandably finds itself in prosecuting agents of the majority, one must not lose sight of the fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered down by the pardoning power of the party for whose benefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be included among the premises considered in said Resolution as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that, furthermore, the records, papers and other effects seized in the offices of the corporations above referred to include personal belongings of said petitioners and other effects under their exclusive possession and control, for the exclusion of which they have a standing under the latest rulings of the federal courts of federal courts of the United States. 22 We note, however, that petitioners' theory, regarding their alleged possession of and control over the aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been Advanced, not in their petition or amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be readjustment of that followed in said petitions, to suit the approach intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners herein. Upon the other hand, we are not satisfied that the allegations of said petitions said motion for reconsideration, and the contents of the aforementioned affidavits and other papers submitted in support of said motion, have sufficiently established the facts or conditions contemplated in the cases relied upon by the petitioners; to warrant application of the views therein expressed, should we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being best to leave the matter open for determination in appropriate cases in the future. We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the warrants for the search of three (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 twenty-nine (29) places, offices and other premises enumerated in the same Resolution, without special pronouncement as to costs. It is so ordered. Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur. CASTRO, J., concurring and dissenting: From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the import of the deliberations of the Court on this case, I gather the following distinct conclusions: 1. All the search warrants served by the National Bureau of Investigation in this case are general warrants and are therefore proscribed by, and in violation of, paragraph 3 of section 1 of Article III (Bill of Rights) of the Constitution; 2. All the searches and seizures conducted under the authority of the said search warrants were consequently illegal; 3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be, and is declared, abandoned; 4. The search warrants served at the three residences of the petitioners are expressly declared null and void the searches and seizures therein made are expressly declared illegal; and the writ of preliminary injunction heretofore issued against the use of the

documents, papers and effect seized in the said residences is made permanent; and 5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that they have legal standing to move for the suppression of the documents, papers and effects seized in the places other than the three residences adverted to above, the opinion written by the Chief Justice refrains from expressly declaring as null and void the such warrants served at such other places and as illegal the searches and seizures made therein, and leaves "the matter open for determination in appropriate cases in the future." It is precisely the position taken by the Chief Justice summarized in the immediately preceding paragraph (numbered 5) with which I am not in accord. I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the search warrants served at places other than the three residences, and the illegibility of the searches and seizures conducted under the authority thereof. In my view even the exacerbating passions and prejudices inordinately generated by the environmental political and moral developments of this case should not deter this Court from forthrightly laying down the law not only for this case but as well for future cases and future generations. All the search warrants, without exception, in this case are admittedly general, blanket and roving warrants and are therefore admittedly and indisputably outlawed by the Constitution; and the searches and seizures made were therefore unlawful. That the petitioners, let us assume in gratia argumente, have no legal standing to ask for the suppression of the papers, things and effects seized from places other than their residences, to my mind, cannot in any manner affect, alter or otherwise modify the intrinsic nullity of the search warrants and the intrinsic illegality of the searches and seizures made thereunder. Whether or not the petitioners possess legal standing the said warrants are void and remain void, and the searches and seizures were illegal and remain illegal. No inference can be drawn from the words of the Constitution that "legal standing" or the lack of it is a determinant of the nullity or validity of a search warrant or of the lawfulness or illegality of a search or seizure.

On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this Court the petitioners have the requisite legal standing to move for the suppression and return of the documents, papers and effects that were seized from places other than their family residences. Our constitutional provision on searches and seizures was derived almost verbatim from the Fourth Amendment to the United States Constitution. In the many years of judicial construction and interpretation of the said constitutional provision, our courts have invariably regarded as doctrinal the pronouncement made on the Fourth Amendment by federal courts, especially the Federal Supreme Court and the Federal Circuit Courts of Appeals. The U.S. doctrines and pertinent cases on standing to move for the suppression or return of documents, papers and effects which are the fruits of an unlawful search and seizure, may be summarized as follows; (a) ownership of documents, papers and effects gives "standing;" (b) ownership and/or control or possession actual or constructive of premises searched gives "standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn application for search warrant are "primarily" directed solely and exclusively against the "aggrieved person," gives "standing." An examination of the search warrants in this case will readily show that, excepting three, all were directed against the petitioners personally. In some of them, the petitioners were named personally, followed by the designation, "the President and/or General Manager" of the particular corporation. The three warrants excepted named three corporate defendants. But the "office/house/warehouse/premises" mentioned in the said three warrants were also the same "office/house/warehouse/premises" declared to be owned by or under the control of the petitioners in all the other search warrants directed against the petitioners and/or "the President and/or General Manager" of the particular corporation. (see pages 5-24 of Petitioners' Reply of April 2, 1962). The searches and seizures were to be made, and were actually made, in the "office/house/warehouse/premises" owned by or under the control of the petitioners. Ownership of matters seized gives "standing."

Ownership of the properties seized alone entitles the petitioners to bring a motion to return and suppress, and gives them standing as persons aggrieved by an unlawful search and seizure regardless of their location at the time of seizure. Jones vs. United States, 362 U.S. 257, 261 (1960) (narcotics stored in the apartment of a friend of the defendant); Henzel vs. United States, 296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which the defendant was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not belonging to the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books seized from the defendant's sister but belonging to the defendant); Cf. Villano vs. United States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in desk neither owned by nor in exclusive possession of the defendant). In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held that under the constitutional provision against unlawful searches and seizures, a person places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile: Where the argument falls is in its misapprehension of the fundamental nature and scope of Fourth Amendment protection. What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion. And when he puts some thing in his filing cabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonable search or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantless search of the hotel room in Jeffers, the purloining of the petitioner's private papers in Gouled, or the surreptitious electronic surveilance in Silverman. Countless other cases which have come to this Court over the years have involved a myriad of differing factual contexts in which the protections of the Fourth Amendment have been appropriately invoked. No doubt, the future will bring countless others. By nothing we say here do we either foresee or foreclose factual situations to which the Fourth Amendment may be applicable. (Hoffa vs. U.S., 87 S. Ct. 408 (December 12,

1966). See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13, 1951). (Emphasis supplied). Control of premises searched gives "standing." Independent of ownership or other personal interest in the records and documents seized, the petitioners have standing to move for return and suppression by virtue of their proprietary or leasehold interest in many of the premises searched. These proprietary and leasehold interests have been sufficiently set forth in their motion for reconsideration and need not be recounted here, except to emphasize that the petitioners paid rent, directly or indirectly, for practically all the premises searched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008, Dewey Boulevard; 1436 Colorado Street); maintained personal offices within the corporate offices (IBMC, USTC); had made improvements or furnished such offices; or had paid for the filing cabinets in which the papers were stored (Room 204, Army & Navy Club); and individually, or through their respective spouses, owned the controlling stock of the corporations involved. The petitioners' proprietary interest in most, if not all, of the premises searched therefore independently gives them standing to move for the return and suppression of the books, papers and affects seized therefrom. In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of the interest in the searched premises necessary to maintain a motion to suppress. After reviewing what it considered to be the unduly technical standard of the then prevailing circuit court decisions, the Supreme Court said (362 U.S. 266): We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is unnecessarily and illadvised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of those distinctions in the homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying

out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between "lessee", "licensee," "invitee," "guest," often only of gossamer strength, ought not be determinative in fashioning procedures ultimately referable to constitutional safeguards. See also Chapman vs. United States, 354 U.S. 610, 616-17 (1961). It has never been held that a person with requisite interest in the premises searched must own the property seized in order to have standing in a motion to return and suppress. In Alioto vs. United States, 216 F. Supp. 48 (1963), a Bookkeeper for several corporations from whose apartment the corporate records were seized successfully moved for their return. In United States vs. Antonelli, Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation's president successfully moved for the return and suppression is to him of both personal and corporate documents seized from his home during the course of an illegal search: The lawful possession by Antonelli of documents and property, "either his own or the corporation's was entitled to protection against unreasonable search and seizure. Under the circumstances in the case at bar, the search and seizure were unreasonable and unlawful. The motion for the return of seized article and the suppression of the evidence so obtained should be granted. (Emphasis supplied). Time was when only a person who had property in interest in either the place searched or the articles seize had the necessary standing to invoke the protection of the exclusionary rule. But in MacDonald vs. Unite States, 335 U.S. 461 (1948), Justice Robert Jackson joined by Justice Felix Frankfurter, advanced the view that "even a guest may expect the shelter of the rooftree he is under against criminal intrusion." This view finally became the official view of the U.S. Supreme Court and was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960, in Jones vs. Unite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a mere guest in the apartment unlawfully searched but the Court nonetheless declared that the exclusionary rule protected him as well. The concept of "person aggrieved by an unlawful search and seizure" was enlarged to include "anyone legitimately on premise where the search occurs."

Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth Circuit held that the defendant organizer, sole stockholder and president of a corporation had standing in a mail fraud prosecution against him to demand the return and suppression of corporate property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir. 1961), supra. The court conclude that the defendant had standing on two independent grounds: First he had a sufficient interest in the property seized, and second he had an adequate interest in the premises searched (just like in the case at bar). A postal inspector had unlawfully searched the corporation' premises and had seized most of the corporation's book and records. Looking to Jones, the court observed: Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by an unlawful search and seizure." It tells us that appellant should not have been precluded from objecting to the Postal Inspector's search and seizure of the corporation's books and records merely because the appellant did not show ownership or possession of the books and records or a substantial possessory interest in the invade premises . . . (Henzel vs. United States, 296 F. 2d at 651). . Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962). In Villano, police officers seized two notebooks from a desk in the defendant's place of employment; the defendant did not claim ownership of either; he asserted that several employees (including himself) used the notebooks. The Court held that the employee had a protected interest and that there also was an invasion of privacy. Both Henzel and Villano considered also the fact that the search and seizure were "directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at 682; Villano vs. United States, 310 F. 2d at 683. In a case in which an attorney closed his law office, placed his files in storage and went to Puerto Rico, the Court of Appeals for the Eighth Circuit recognized his standing to move to quash as unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution a grand jury subpoena duces tecum directed to the custodian of his files. The Government contended that the petitioner had no standing because the books and papers were physically in the possession of the custodian, and because the subpoena was directed against the custodian. The court rejected the contention, holding that

Schwimmer legally had such possession, control and unrelinquished personal rights in the books and papers as not to enable the question of unreasonable search and seizure to be escaped through the mere procedural device of compelling a third-party naked possessor to produce and deliver them. Schwimmer vs. United States, 232 F. 2d 855, 861 (8th Cir. 1956). Aggrieved person doctrine where the search warrant s primarily directed against said person gives "standing." The latest United States decision squarely in point is United States vs. Birrell, 242 F. Supp. 191 (1965, U.S.D.C. S.D.N.Y.). The defendant had stored with an attorney certain files and papers, which attorney, by the name of Dunn, was not, at the time of the seizing of the records, Birrell's attorney. * Dunn, in turn, had stored most of the records at his home in the country and on a farm which, according to Dunn's affidavit, was under his (Dunn's) "control and management." The papers turned out to be private, personal and business papers together with corporate books and records of certain unnamed corporations in which Birrell did not even claim ownership. (All of these type records were seized in the case at bar). Nevertheless, the search in Birrell was held invalid by the court which held that even though Birrell did not own the premises where the records were stored, he had "standing" to move for the return of all the papers and properties seized. The court, relying on Jones vs. U.S., supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d 631: Henzel vs. U.S., supra; and Schwimmer vs. U.S., supra, pointed out that It is overwhelmingly established that the searches here in question were directed solely and exclusively against Birrell. The only person suggested in the papers as having violated the law was Birrell. The first search warrant described the records as having been used "in committing a violation of Title 18, United States Code, Section 1341, by the use of the mails by one Lowell M. Birrell, . . ." The second search warrant was captioned: "United States of America vs. Lowell M. Birrell. (p. 198) Possession (actual or constructive), no less than ownership, gives standing to move to suppress. Such was the rule even before Jones. (p. 199)

If, as thus indicated Birrell had at least constructive possession of the records stored with Dunn, it matters not whether he had any interest in the premises searched. See also Jeffers v. United States, 88 U.S. Appl. D.C. 58, 187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951). The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not appeal from this decision. The factual situation in Birrell is strikingly similar to the case of the present petitioners; as in Birrell, many personal and corporate papers were seized from premises not petitioners' family residences; as in Birrell, the searches were "PRIMARILY DIRECTED SOLETY AND EXCLUSIVELY" against the petitioners. Still both types of documents were suppressed in Birrell because of the illegal search. In the case at bar, the petitioners connection with the premises raided is much closer than in Birrell. Thus, the petitioners have full standing to move for the quashing of all the warrants regardless whether these were directed against residences in the narrow sense of the word, as long as the documents were personal papers of the petitioners or (to the extent that they were corporate papers) were held by them in a personal capacity or under their personal control. Prescinding a from the foregoing, this Court, at all events, should order the return to the petitioners all personal and private papers and effects seized, no matter where these were seized, whether from their residences or corporate offices or any other place or places. The uncontradicted sworn statements of the petitioners in their, various pleadings submitted to this Court indisputably show that amongst the things seized from the corporate offices and other places were personal and private papers and effects belonging to the petitioners. If there should be any categorization of the documents, papers and things which where the objects of the unlawful searches and seizures, I submit that the grouping should be: (a) personal or private papers of the petitioners were they were unlawfully seized, be it their family residences offices, warehouses and/or premises owned and/or possessed (actually or constructively) by them as shown in all the search and in the sworn applications filed in securing the void search warrants and (b) purely corporate papers belonging to

corporations. Under such categorization or grouping, the determination of which unlawfully seized papers, documents and things are personal/private of the petitioners or purely corporate papers will have to be left to the lower courts which issued the void search warrants in ultimately effecting the suppression and/or return of the said documents. And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear legal standing to move for the suppression of purely corporate papers as "President and/or General Manager" of the corporations involved as specifically mentioned in the void search warrants. Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal prosecutions, the great clauses of the constitutional proscription on illegal searches and seizures do not withhold the mantle of their protection from cases not criminal in origin or nature. Xxxxxxxxx G.R. No. 83988 September 29, 1989 RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS (ULAP), petitioners, vs. GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents. Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.: This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and banning of the same or, in the alternative, to direct the respondents to formulate

guidelines in the implementation of checkpoints, for the protection of the people. Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose members are all members of the IBP. The factual background of the case is as follows: On 20 January 1987, the National Capital Region District Command (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. 1 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 inspire 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. 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. In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right (ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege that any of their rights were violated are not qualified to bring the action, as real parties in interest. The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed, 4 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. 6 Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not constitute unreasonable search.

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. 10 WHEREFORE, the petition is DISMISSED. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Separate Opinions

CRUZ, J., dissenting: I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at '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." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion might impair "the social, economic and political development of the National Capital Region." It is incredible that we can sustain such a measure. And we are not even under martial law. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. SARMIENTO, J., dissenting:

I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution. The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain command of the Constitution. Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 42244226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How soon we forget. While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness. In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a roving one at that.

That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been issued by a judge. I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big Brother watching every step we take and every move we make. As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I have witnessed actual incidents. Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct here. "Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail. (Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable: There was no warrant. A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a living reality. I vote then, to grant the petition.

I join Justice Isagani Cruz in his dissent, delivered so staightforwardly and eloquently. I am agreed that the existence alone of checkpoints makes search done therein, unreasonable and hence, repugnant to the Constitution. Separate Opinions CRUZ, J., dissenting: I dissent. The sweeping statements in the majority opinion are as dangerous as the checkpoints it would sustain and fraught with serious threats to individual liberty. The bland declaration that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security. What is worse is that the searches and seizures are peremptorily pronounced to be reasonable even without proof of probable cause and much less the required warrant. The improbable excuse is that they are aimed at '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." For these purposes, every individual may be stopped and searched at random and at any time simply because he excites the suspicion, caprice, hostility or malice of the officers manning the checkpoints, on pain of arrest or worse, even being shot to death, if he resists. I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark street as a routine measure of security and curiosity. But the case at bar is different. Military officers are systematically stationed at strategic checkpoint to actively ferret out suspected criminals by detaining and searching any individual who in their opinion might impair "the social, economic and political development of the National Capital Region." It is incredible that we can sustain such a measure. And we are not even under martial law. Unless we are vigilant of our rights, we may find ourselves back to the dark era of the truncheon and the barbed wire, with the Court itself a captive of its own complaisance and sitting at the death-bed of liberty. SARMIENTO, J., dissenting: The Charter says that the people enjoy the right of security of person, home, and effects. (CONST., art. III, sec. 2.) It is also the bedrock the right of the people to be left alone on which the regime of law and constitutionalism rest. It is not, as the majority would put it, a matter of "occasional inconveniences, discomfort and even irritation." (Resolution, 4.) To say that it is, is so I submit to trivialize the plain command of the Constitution. Checkpoints, I further submit, are things of martial rule, and things of the past. They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER PURPOSES), a martial law issuance, as amended by General Order No. 67 (AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 42244226; 4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the same measures against which we had fought so painstakingly in our quest for liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How soon we forget. While the right against unreasonable searches and seizures, as my brethren advance, is a right personal to the aggrieved party, the petitioners, precisely, have come to Court because they had been, or had felt, aggrieved. I submit that in that event, the burden is the State's, to demonstrate the reasonableness of the search. The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated the "details of the incident" (Resolution, supra, 4) in all their gore and gruesomeness. In any event, the absence alone of a search warrant, as I have averred, makes checkpoint searches unreasonable, and by itself, subject to constitutional challenges. (Supra.) As it is, "checkpoints", have become "search warrants" unto themselves a roving one at that.

That "[n]ot all searches and seizures are prohibited," the majority points out, is fine. And so is "a reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case." (Supra) But the question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that it (they) is (are) not, for one simple reason: No search warrant has been issued by a judge. I likewise do not find this case to be a simple matter of an "officer merely draw(ing) aside the curtain of a vacant vehicle ... or simply look(ing) (supra) there, "or flash(ing) a light therein." (Supra) What we have here is Orwell's Big Brother watching every step we take and every move we make. As it also is, "checkpoints" are apparently, State policy. The American cases the majority refers to involve routine checks compelled by "probable cause". What we have here, however, is not simply a policeman on the beat but armed men, CAFGU or Alsa Masa, who hold the power of life or death over the citizenry, who fire with no provocation and without batting an eyelash. They likewise shoot you simply because they do not like your face. I have witnessed actual incidents. Washington said that militia can not be made to dictate the terms for the nation. He can not be anymore correct here. "Between the inherent right of the state to protect its existence ... and on individual's right against a warrantless search, which is reasonably conducted, "so my brethren go on, the former shall prevail. (Supra) First, this is the same lie that the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a second time around. Second, the checkpoint searches herein are unreasonable: There was no warrant. A final word. After twenty years of tyranny, the dawn is upon us. The country is once again the "showcase of democracy" in Asia. But if in many cases, it has been "paper democracy", let this Court anyway bring to pass its stand, and make liberty in the land, a living reality. I vote then, to grant the petition.

G.R. No. L-41957

August 28, 1937

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SANTIAGO SY JUCO, defendant. TEOPISTO B. REMO, petitioner-appellant. Laurel, Del Rosario and Sabido for appellant. Office of the Solicitor-General for appellee. DIAZ, J.: Upon petition of the agent and representatives of the Bureau of Internal Revenue, named Narciso Mendiola, who alleged that, according to information given him by a person whom he considered reliable, certain fraudulent bookletters and papers or records were being kept in the building marked No. 482 on Juan Luna Street, Binondo, Manila, occupied by Santiago Sy Juco, a warrant to search the building in question was issued against said person on March 7, 1933, by the Court of First Instance of Manila, through Judge Mariano A. Albert. In said warrant, the peace officers to whom it was directed for execution were required to seize the above-stated articles for the purpose of delivering them to the court, for the proper action to be taken in due time. After making the required search the officers concerned seized, among things, an art metal filing cabinet claimed by Attorney Teopisto B. Remo to be his and to contain some letters, documents and papers belonging to his clients. Inasmuch as said officers later refused to return the filing cabinet in question to him, he filed a petition in the Court of First Instance of Manila, praying that the Collector of Internal Revenue and his agents be prohibited from opening said art metal filing cabinet and that the sheriff of the City of Manila likewise be ordered to take charge of said property in the meantime, on the ground that the warrant by virtue of which the search was made is null and void, being illegal and against the Constitution. A similar petition was later filed in the same case by the Salakan Lumber Co., Inc., the same agents of the Bureau of Internal Revenue having also seized some books belonging to it by virtue of the above-mentioned search warrant. After due hearing, the Court of First Instance through Judge Delfin Jaranilla, decided to overrule both petitions, declaring that the art metal filing cabinet

and the books and papers claimed by the Salakan Lumber Co., Inc., would be returned to Attorney Teopisto B. Remo and to the company, respectively, as soon as it be proven, by means of an examination thereof to be made in the presence of the interested parties, that they contain nothing showing that they have been used to commit fraud against the Government. Only Attorney Teopisto B. Remo appealed from the decision of the court and he now contends that it committed the nine errors assigned by him as follows: 1. The lower court erred in not holding that the search warrant, Exhibit B, issued in the case at bar is unconstitutional and void ab initio and hence can confer no legal right upon the Government to seize, much less to retain or open the filing cabinet in question, Exhibit 3. 2. The lower court erred in not holding that the search warrant, which is void ab initio may not be legalized by evidence secured subsequent to the issuance, or in consequence, of said illegal search warrant. 3. The lower court erred in not holding that the doctrine of the case of People vs. Rubio (G. R. No. 35500, 57 Phil., 384), is not applicable to the case at bar. 4. The lower court erred in not holding that the search warrant, Exhibit B, was procured in order to obtain evidence against the defendant Santiago Sy Juco. 5. The lower court erred in not holding that the search warrant, Exhibit B, was issued solely against the premised occupied by the defendant Santiago Sy Juco, and hence cannot be used against the premises occupied by a stranger, or the petitioner, Teopisto B. Remo. 6. The lower court erred in not holding that the filing cabinet, Exhibit 3, is the personal property of the petitioner, Teopisto B. Remo, and not of the defendant Santiago Sy Juco. 7. The lower court erred in not upholding the inviolability of the contents of the filing cabinet, Exhibit 3, the same being confidential documents entrusted to the herein petitioner, Attorney Teopisto B.

Remo, by his clients, in his professional capacity and in connection with cases pending before the courts of justice and administrative tribunals. 8. The lower court erred in not holding that the Internal Revenue agents gave infringed the penal laws not only by procuring the search warrant, Exhibit B, against the premises of the defendant, Santiago Sy Juco, without just cause, but also by exceeding their authority in enforcing said search warrant against the premises of the petitioner, Teopisto B. Remo, who is stranger to said search warrant, which acts also constitute a violation of the domicile of said petitioner; and in not endorsing the matter to the city fiscal for proper action. 9. The lower court erred in not ordering the return of the filing cabinet, Exhibit 3, intact and unopened, to its lawful owner, the petitioner Teopisto B. Remo. The pertinent part of the search warrant in question was couched in the following language: Proof by affidavit having this day been made before me, Mariano Albert, Judge of the Court of First Instance of the City of Manila, Philippine Islands, by the complainant on oath of Narciso Mendiola, special investigator, Bureau of Internal Revenue, Manila, that the defendant, Santiago Sy Juco, of No. 482 Juan Luna, Manila, keeps illegally and feloniously fraudulent books, correspondence, and records and that he verily believes upon probable cause that the said books, correspondence and records at No. 482 Juan Luna, Manila, and the said (personal) property is now being used in the commission of fraud of the revenue of the Government. You are therefore commanded to take with you the necessary and proper assistance and to enter, in the daytime, into the said premises and there diligently search for fraudulent books, correspondence and records and that you seize and bring them before the court to be disposed of according to law.

Given under my hands this 7th day of March, 1933, in the City of Manila. [SEAL] (Sgd.) MARIANO Judge of Court of First instance of Manila A. ALBERT

[SEAL] (Sgd.) MARIANO A. ALBERT Judge, Court of First Instance, Manila It appears clear to this court that the question that the appellant wishes to raise by means of the allege errors attributed by him to the lower court, may be reduced to the following: 1. Is the search warrant in question valid or not, taking into consideration the provisions of the law and of the Constitution relative thereto? 2. Does the art metal filing cabinet seized by the agents of the Bureau of Internal Revenue belong to Santiago Sy Juco or to Teopisto B. Remo? 3. Could the search warrant in question affect Attorney Teopisto B. Remo, not being the person against whom it was directed? 4. Had the court authority to order the opening of the cabinet in question for the purpose of determining, by an examination of the books, documents and records contained therein, whether or not same were used to commit fraud against the Government? 1. A question which is very similar to the first one herein raised by the appellant, has been decided by this court in the negative in its judgment rendered in the case of Alvarez vs. Court of First Instance of Tayabas and Anti Usury Board, p. 33, ante. According to our laws in force on the date in question, which do not differ substantially from the provisions of the Constitution of the Commonwealth in matters regarding search, in order that a search warrant may be valid, the following requisites, among others, must be present: That the application upon which it is issued be supported by oath; That the search warrant particularly describes not only place to be searched but also the person or thing to be seized and that there be probable cause (sec. 97, General Orders, No. 58: sec. 3, Jones Law; Article III, sec. 1, paragraph 3, Constitution of the Commonwealth).

The affidavit or deposition referred to in the warrant above-quoted contained the following questions and answers: TESTIMONY TAKEN BEFORE HON. JUDGE MARIANO A. ALBERT, Narciso Mendiola, being duly sworn, testifies as follows: Q. What is your name, residence and occupation? A. Narciso Mendiola, special investigator, Bureau of Internal Revenue, Manila. Q. Are you the applicant for this search warrant? A. Yes, sir. Q. do you know the premises situated at No. 482 Juan Luna, Manila? A. Yes, sir. Q. Do you know who occupy said premises? A. According to the best of my information, the house is occupied by Santiago Sy Juco. Q. What are your reasons for applying for a search warrant? A. It has been reported to us by person whom I considered reliable that in said premises are fraudulent books, correspondence and records. I. Narciso Mendiola, being duly sworn, depose and say that I have read the foregoing questions and answers and that I found the same to be correct and true to the best of my knowledge and belief. (Sgd.) NARCISCO MENDIOLA. Subscribed and sworn to before me this 7th day of March, 1933, in the City of Manila, P. I.

In the above-cited case of Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board, supra, and in that of United States vs. Addison (28 Phil., 566), this court held that the oath required must be such that it constitutes a guaranty that the person taking it has personal knowledge of the facts of the case and that it convince the committing magistrate, not the individual seeking the issuance of the warrant or the person making the averment by hearsay, of the existence of the requisite of probable cause. It has likewise been held by this court that by probable cause are meant such facts and circumstances antecedent to the issuance thereof. It has furthermore been held that the true test of the sufficiency of an affidavit to warrant issuance of a search warrant is whether it has been drawn in such a manner that perjury could be charged thereon in case the allegations contained therein prove false (Sate vs. Roosevelt, 244 Pac., 280), and that the provisions of the Constitution and the statutes relative to searches and seizures must be construed liberally in favor of the individual who may be affected thereby, and strictly against the State and against the person invoking them for the issuance of the warrant ordering their execution (Elardo vs. State of Misissippi, 145 So., 615; Fowler vs. U. S., 62 Fed. [2d], 656; Saforik vs. U. S. Feed. [2d], 892; Boyd vs. U. S., 116 U. S., 616; 29 Law. ed., 746), for the simple reason that the proceedings of search and seizure are, by their very nature, summary and drastic ones (Alvarez vs. Court of First Instance of Tayabas and Anti-Usury Board, supra, and the authorities cited therein). By reading the affidavit which gave rise to the issuance of the search warrant in question, it will be seen that the latter does not fulfill the necessary conditions in support of its validity. In the first place, it is not stated in said affidavit that the books, documents or records referred to therein are being used or are intended to be used in the commission of fraud against the Government and, notwithstanding the lack of such allegation, the warrant avers that they are actually being used for such purpose. In the second place, it assumes that the entire building marked No. 482 on Juan Luna Street is occupied by Santiago Sy Juco against whom the warrant was exclusively issued, when the only ground upon which such assumption is based is Narciso Mendiola's statement which is mere hearsay and when in fact part thereof was occupied by the appellant. In the third place, it was not asked that the things belonging to the appellant and to others also be searched. In otherwords, the warrant in question has gone beyond what had been applied for by Narciso Mendiola and the agent who executed it performed acts not authorized by the warrant, and it is for this and the above-stated reason why it is unreasonable, it

being evidence that the purpose thereof was solely to fish for evidence or search for it by exploration, in case some could be found. It is of common knowledge that search warrants have not been designed for such purpose (Gouled vs. U. S., 255 U. S., 298, S. C. R., 65 Law. ed., 647; Uy Kheytin vs. Villareal, 42 Phil., 886) much less in a case as the one under consideration where it has not even been alleged in the affidavit of Narciso Mendiola what crime had been committed by Santiago Sy Juco or what crime he was about commit. On this point said affidavit merely contained the following allegation: "It has been reported to us by a person whom I considered reliable that in said premises are fraudulent books, correspondence and records." Therefore, the first question raised should be decided in the negative. 2. The resolution of the second question depends entirely on the nature of the evidence presented and the relative preponderance thereof. The only witness who testified that the art metal filing cabinet belongs to the accused Santiago Sy Juco, is Macario Garcia. Against Garcia's testimony, we certainly have that of the appellant himself and his witnesses Rufino C. Wenceslao, Vicente del Rosario, Jose Jeuquenco and Feliciano Belmonte, besides Exhibits E, F, G, H and L, which conclusively proves that the furniture in question was purchased by said appellant at the beginning of January, 1933, and that he had it precisely in a room on one of the upper floors of building No. 482 on Juan Luna Street, which he was then subleasing from Santiago Sy Juco, to keep his records and those of his clients. On the otherhand, it is unimportant now to determine whether the furniture in question belongs to Santiago Sy Juco or to the appellant Attorney Topisto B. Remo. It should have been alleged at the time he applied for the issuance of the search warrant, to show with the other allegations, reason and evidence that the issuance thereof was justified because of the existence of probable cause, the latter being a requisite without which the issuance of the judicial warrant authorizing such search would be unwarranted. For these reasons, this court concludes that the second question raised calls for an answer in the negative. 3. After the considerations just made, the third question cannot be resolved except in the negative. The search warrant in question could not and should not in any way affect the appellant attorney on the ground that he is not the person against whom it had been sought. It is Santiago Sy Juco alone against whom the search warrant could be used, because it had been obtained precisely against him; so much so that Narciso Mendiola, who applied for it,

mentioned him expressly in his affidavit and again did so in his report to his superior, that is, the Collector of Internal Revenue (Exhibit C); and at the trial of this case, it was insisted that there was necessity of making the search in the premises occupied by Santiago Sy Juco because an investigation was then pending against him, for having defrauded the Government in its public revenue. The doctrine laid down in the case of People vs. Rubio (57 Phil., 384), invoked against the appellant, is not applicable to the case at bar because, unlike in the above-cited case, neither books nor record indicating fraud were found in his possession, and it is not he against whom the warrant was issued. 4. It is clear that the court could not and can not order the opening of the art metal filing cabinet in question because, it having been proven that it belongs to the appellant attorney and that in it he keeps the records and documents of his clients, to do so would be in violation of his right as such attorney, since it would be tantamount to compelling him to disclose or divulge facts or things belonging to his clients, which should be kept secret, unless she is authorized by them to make such disclosure, it being a duty imposed by law upon an attorney to strictly preserve the secrets or communications made to him. Such an act would constitute a qualified violation of section 383, No. 4, and of section 31 of Act No. 190, which read as follows: An attorney can not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment; nor can an attorney's secretary stenographer, or clerk be examined, without the consent of client and his employer, concerning any fact, the knowledge of which has been acquired in such capacity. (Sec. 383, No. 4, Act No. 190.) A lawyer must strictly maintain inviolate the confidence and preserve the secrets of his client. He shall not be permitted in any court without the consent of his client, given in open court, to testify to any facts imparted to him by his client in professional consultation, or for the purpose of obtaining advice upon legal matters. (Sec. 31, Act No. 190.)

For all the foregoing reasons, and finding that the errors assigned by the appellant are very well founded, the appealed judgment is reversed, and it is ordered that the art metal filing cabinet, together with the key thereof seized by the internal revenue agent by virtue of the judicial warrant in question, which is hereby declared null and void, be immediately returned unopened to the appellant; and that a copy of this decision be sent to the Solicitor-General for him to take action, if he deems it justified, upon careful investigation of the facts, against the internal revenue agent or agents who obtained and executed the warrant in question, in accordance with the provisions of article 129 of the Revised Penal Code, without special pronouncement as to costs. So ordered. Avancea, C.J., Villa-Real, Abad Santos, Imperial and Concepcion, JJ., concur. Xxxx G.R. Nos. 76649-51 August 19, 1988 20TH CENTURY FOX FILM CORPORATION, petitioner, vs. COURT OF APPEALS, EDUARDO M. BARRETO, RAUL SAGULLO and FORTUNE LEDESMA, respondents. Siguion Reyna, Montecillo & Ongsiako Law Office for petitioner. B.C. Salazar & Associates for respondents.

GUTIERREZ, JR., J.: The petitioner questions the application of the constitutional provision against illegal searches and seizures to raids conducted in connection with the government's anti-film piracy campaign. The main issue hinges on whether or not the judge properly lifted the search warrants he issued earlier upon the application of the National Bureau of Investigation on the basis of the complaint filed by the petitioner.

In a letter-complaint dated August 26, 1985, petitioner 20th Century Fox Film Corporation through counsel sought the National Bureau of Investigation's (NBI) assistance in the conduct of searches and seizures in connection with the latter's anti-film piracy campaign. Specifically, the letter-complaint alleged that certain videotape outlets all over Metro Manila are engaged in the unauthorized sale and renting out of copyrighted films in videotape form which constitute a flagrant violation of Presidential Decree No. 49 (otherwise known as the Decree on the Protection of Intellectual Property). Acting on the letter-complaint, the NBI conducted surveillance and investigation of the outlets pinpointed by the petitioner and subsequently filed three (3) applications for search warrants against the video outlets owned by the private respondents. The applications were consolidated and heard by the Regional Trial Court of Makati, Branch 132. On September 4, 1985, the lower court issued the desired search warrants.

prosecution, now in the possession of the National Bureau of Investigation which under the law must be delivered to this Court, but which the NBI failed to do, are hereby ordered to be returned to their owners through their lawyer, Atty. Benito Salazar or his agents or representatives, against proper receipt, to be forwarded to this Court for record purposes, as proof that said properties have been returned to the possession of the rightful owners." (p. 34, Rollo) The lower court denied a motion for reconsideration filed by the petitioner in its order dated January 2, 1986. The petitioner filed a petition for certiorari with the Court of Appeals to annul the October 8, 1985 and January 2, 1986 orders of the lower court. The petition was dismissed. Hence, this petition.

Armed with the search warrants, the NBI accompanied by the petitioner's agents, raided the video outlets and seized the items described therein. An inventory of the items seized was made and left with the private respondents. Acting on a motion to lift search warrants and release seized properties filed by the private respondents, the lower court issued an order dated October 8, 1985, lifting the three (3) search warrants issued earlier against the private respondents by the court. The dispositive portion of the order reads: WHEREFORE, the Court hereby orders that Search Warrants Nos. SW- 85-024; issued against Eduardo M. Barreto of the Junction Video, etc., Paranaque, Metro Manila; SW No. 85025, issued against Raul M. Sagullo of South Video Bug Center, Inc., etc., also of No. 5355 Pres. Avenue BF Homes, Paraaque, Metro Manila; and SW No. 85-026, issued against Fortune A. Ledesma of Sonix Video Services of San Antonio Plaza, Forbes Park, Makati, Metro Manila, be lifted. Consequently, the articles listed in the returns of the three search warrants which could not be a basis of any criminal

The main issue hinges on the meaning of "probable cause" within the context of the constitutional provision against illegal searches and seizures (Section 3, Article IV, 1973 Constitution, now, Section 2, Article Ill, 1987 Constitution. The petitioner maintains that the lower court issued the questioned search warrants after finding the existence of a probable cause justifying their issuance. According to the petitioner, the lower court arrived at this conclusion on the basis of the depositions of applicant NBI's two witnesses which were taken through searching questions and answers by the lower court. Section 2, Article III of the present Constitution which substantially reproduces Section 3, Article IV of the 1973 Constitution on illegal searches and seizures provides: 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. This constitutional right protects a citizen against wanton and unreasonable invasion of his privacy and liberty as to his person, papers and effects. We have explained in the case of People v. Burgos (144 SCRA 1) citing Villanueva v. Querubin (48 SCRA 345) why the right is so important: It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 119661) What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. (Cf Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966]), could fitly characterize constitutional right as the embodiment of a "spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards."(ibid, p. 74).

The government's right to issue search warrants against a citizen's papers and effects is circumscribed by the requirements mandated in the searches and seizures provision of the Constitution. In the case of Burgos, Sr. v. Chief of Staff, AFP (133 SCRA 800), we defined probable cause for a valid search "as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched." This constitutional provision also demands "no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified" in order to convince the judge, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of a probable cause. (Alvarez v. Court of First Instance, 64 Phil. 33; Burgos, Sr. v. Chief of Staff, AFP, supra). In the instant case, the lower court lifted the three questioned search warrants against the private respondents on the ground that it acted on the application for the issuance of the said search warrants and granted it on the misrepresentations of applicant NBI and its witnesses that infringement of copyright or a piracy of a particular film have been committed. Thus the lower court stated in its questioned order dated January 2,1986: According to the movant, all three witnesses during the proceedings in the application for the three search warrants testified of their own personal knowledge. Yet, Atty. Albino Reyes of the NBI stated that the counsel or representative of the Twentieth Century Fox Corporation will testify on the video cassettes that were pirated, so that he did not have personal knowledge of the alleged piracy. The witness Bacani also said that the video cassettes were pirated without stating the manner it was pirated and that it was Atty. Domingo that has knowledge of that fact. On the part of Atty. Domingo, he said that the re-taping of the allegedly pirated tapes was from master tapes allegedly belonging to the Twentieth Century Fox, because, according to him, it is of his personal knowledge.

At the hearing of the Motion for Reconsideration, Senior NBI Agent Atty. Albino Reyes testified that when the complaint for infringement was brought to the NBI, the master tapes of the allegedly pirated tapes were shown to him and he made comparisons of the tapes with those purchased by their man Bacani. Why the master tapes or at least the film reels of the allegedly pirated tapes were not shown to the Court during the application gives some misgivings as to the truth of that bare statement of the NBI agent on the witness stand. " Again as the application and search proceedings is a prelude to the filing of criminal cases under PD 49, the copyright infringement law, and although what is required for the issuance thereof is merely the presence of probable cause, that probable cause must be satisfactory to the Court, for it is a time- honored precept that proceedings to put a man to task as an offender under our laws should be interpreted in strictissimi juris against the government and liberally in favor of the alleged offender. xxx xxx xxx This doctrine has never been overturned, and as a matter of fact it had been enshrined in the Bill of Rights in our 1973 Constitution. So that lacking in persuasive effect, the allegation that master tapes were viewed by the NBI and were compared to the purchased and seized video tapes from the respondents' establishments, it should be dismissed as not supported by competent evidence and for that matter the probable cause hovers in that grey debatable twilight zone between black and white resolvable in favor of respondents herein. But the glaring fact is that 'Cocoon,' the first video tape mentioned in the search warrant, was not even duly registered or copyrighted in the Philippines. (Annex C of Opposition p. 152 record). So, that lacking in the requisite presentation to

the Court of an alleged master tape for purposes of comparison with the purchased evidence of the video tapes allegedly pirated and those seized from respondents, there was no way to determine whether there really was piracy, or copying of the film of the complainant Twentieth Century Fox." (pp. 37-39, Rollo) xxx xxx xxx The lower court, therefore, lifted the three (3) questioned search warrants in the absence of probable cause that the private respondents violated P.D. 49. As found out by the court, the NBI agents who acted as witnesses did not have personal knowledge of the subject matter of their testimony which was the alleged commission of the offense by the private respondents. Only the petitioner's counsel who was also a witness during the application for the issuance of the search warrants stated that he had personal knowledge that the confiscated tapes owned by the private respondents were pirated tapes taken from master tapes belonging to the petitioner. However, the lower court did not give much credence to his testimony in view of the fact that the master tapes of the allegedly pirated tapes were not shown to the court during the application. All these factors were taken into consideration by the lower court when it lifted the three questioned search warrants. There is no truth, therefore, to the petitioner's allegation that the lower court based its January 2, 1986 order only "on the fact that the original or master copies of the copyrighted films were not presented during the application for search warrants, thus leading it to conclude that it had been "misled by the applicant and his witnesses." (p. 17, Rollo) The presentation of the master tapes of the copyrighted films from which the pirated films were allegedly copied, was necessary for the validity of search warrants against those who have in their possession the pirated films. The petitioner's argument to the effect that the presentation of the master tapes at the time of application may not be necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable cause exists to justify the issuance of the search warrants is not meritorious. The

court cannot presume that duplicate or copied tapes were necessarily reproduced from master tapes that it owns. The application for search warrants was directed against video tape outlets which allegedly were engaged in the unauthorized sale and renting out of copyrighted films belonging to the petitioner pursuant to P.D. 49. The essence of a copyright infringement is the similarity or at least substantial similarity of the purported pirated works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to compare them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter is an unauthorized reproduction of the former. This linkage of the copyrighted films to the pirated films must be established to satisfy the requirements of probable cause. Mere allegations as to the existence of the copyrighted films cannot serve as basis for the issuance of a search warrant. Furthermore, we note that the search warrants described the articles sought to be seized as follows: xxx xxx xxx xxx xxx xxx c) Television sets, Video Cassettes Recorders, rewinders, tape head cleaners, accessories, equipments and other machines used or intended to be used in the unlawful reproduction, sale, rental/lease distribution of the above-mentioned video tapes which she is keeping and concealing in the premises above-described." (p. 26, Rollo) In the case of Burgos v. Chief of Staff, AFP supra, we stated: xxx xxx xxx

Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise: l] All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters, cabinets, tables communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the 'WE FORUM' newspaper and any and all document/communications, letters and facsimile of prints related to "WE FORUM" newspaper. 2] Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and 3] Motor vehicles used in the distribution/circulation of the 'WE FORUM and other subversive materials and propaganda, more particularly, 1] Toyota-Corolla, colored yellow with Plate No. NKA 892; 2] DATSUN pick-up colored white with Plate No. NKV 969; 3] A delivery truck with Plate No. NBS 542; 4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665;and, 5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking "Bagong Silang."

In Stanford v. State of Texas (379 U.S. 476,13 L ed 2nd 431), the search warrant which authorized the search for 'books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Parties of Texas, and the operations of the Community Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connection with the violation of SDC 13-3703 or otherwise' have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]"' was held to be a general warrant, and therefore invalid (68 Am. Jur. 2d., pp. 736-737). The description of the articles sought to be seized under the search warrants in question cannot be characterized differently. (at pp. 814-815) Undoubtedly, a similar conclusion can be deduced from the description of the articles sought to be confiscated under the questioned search warrants. Television sets, video cassette recorders, reminders and tape cleaners are articles which can be found in a video tape store engaged in the legitimate business of lending or renting out betamax tapes. In short, these articles and appliances are generally connected with, or related to a legitimate business not necessarily involving piracy of intellectual property or infringement of copyright laws. Hence, including these articles without specification and/or particularity that they were really instruments in violating an Anti-Piracy law makes The search warrant too general which could result in the confiscation of all items found in any video store. In fact, this actually happened in the instant case. Thus, the lower court, in its questioned order dated October 8, 1985 said: Although the applications and warrants themselves covered certain articles of property usually found in a video store, the Court believes that the search party should have confined themselves to articles that are according to them, evidence constitutive of infringement of copyright laws or the piracy of

intellectual property, but not to other articles that are usually connected with, or related to, a legitimate business, not involving piracy of intellectual property, or infringement of copyright laws. So that a television set, a rewinder, and a whiteboard listing Betamax tapes, video cassette cleaners video cassette recorders as reflected in the Returns of Search Warrants, are items of legitimate business engaged in the video tape industry, and which could not be the subject of seizure, The applicant and his agents therefore exceeded their authority in seizing perfectly legitimate personal property usually found in a video cassette store or business establishment." (p. 33, Rollo) All in all, we find no grave abuse of discretion on the part of the lower court when it lifted the search warrants it earlier issued against the private respondents. We agree with the appellate court's findings to the effect that: An assiduous examination of the assailed orders reveal that the main ground upon which the respondent Court anchored said orders was its subsequent findings that it was misled by the applicant (NBI) and its witnesses 'that infringement of copyright or a piracy of a particular film have been committed when it issued the questioned warrants.' Stated differently, the respondent Court merely corrected its erroneous findings as to the existence of probable cause and declared the search and seizure to be unreasonable. Certainly, such action is within the power and authority of the respondent Court to perform, provided that it is not exercised in an oppressive or arbitrary manner. Indeed, the order of the respondent Court declaring the existence of probable cause is not final and does not constitute res judicata. A careful review of the record of the case shows that the respondent Court did not commit a grave abuse of discretion when it issued the questioned orders. Grave abuse of discretion' implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is exercised in an arbitrary or

despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.' But far from being despotic or arbitrary, the assailed orders were motivated by a noble desire of rectifying an error, much so when the erroneous findings collided with the constitutional rights of the private respondents. In fact, the petitioner did not even contest the righteousness and legality of the questioned orders but instead concentrated on the alleged denial of due process of law." (pp. 44-45, Rollo) The proliferation of pirated tapes of films not only deprives the government of much needed revenues but is also an indication of the widespread breakdown of national order and discipline. Courts should not impose any unnecessary roadblocks in the way of the anti-film piracy campaign. However, the campaign cannot ignore or violate constitutional safeguards. To say that the problem of pirated films can be solved only by the use of unconstitutional shortcuts is to denigrate the long history and experience behind the searches and seizures clause of the Bill of Rights. The trial court did not commit reversible error. WHEREFORE, the instant petition is DISMISSED. The questioned decision and resolution of the Court of Appeals are AFFIRMED. SO ORDERED. Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur Xxxxxx SECOND DIVISION [G.R. No. 111267. September 20, 1996] COLUMBIA PICTURES ENTERTAINMENT, INC., MGM ENTERTAINMENT CO., ORION PICTURES CORPORATION, PARAMOUNT PICTURES CORP., UNIVERSAL CITY STUDIOS, INC., THE WALT DISNEY COMPANY and

WARNER BROTHERS, INC., petitioners, vs. HONORABLE COURT OF APPEALS, 14TH DIVISION and JOSE B. JINGCO of SHOWTIME ENTERPRISES., INC., respondents. DECISION ROMERO, J.: Petitioners Columbia Pictures Industries, Inc., MGM Entertainment Co., Orion Pictures Corporation, Paramount Pictures Corp., Universal City Studios, Inc., the Walt Disney Company and Warner Brothers, Inc. question the decision[1]of the Court of Appeals which affirmed the Order of the Regional Trial Court of Pasig, Branch 168, the dispositive portion of which states: "WHEREFORE, finding that the issuance of the questioned warrants was not supported by probable cause, the 'Urgent Motion (To Lift Search Warrant [No. 23] and for the Return of Seized Articles)' is hereby GRANTED. Accordingly, the Videogram Regulatory Board (VRB) and/or any Police Agency or other representatives of the VRB are hereby directed to return to the defendant/movant or his representative all articles/items in their possession seized under and by virtue of Search Warrant No. 23. SO ORDERED." The antecedent facts leading to the disputed Order are: Alfredo G. Ramos, intelligence officer of the Videogram Regulatory Board (VRB), received information that private respondent Jose B. Jinco had in his possession pirated videotapes, posters, advertising materials and other items used or intended to be used for the purpose of sale, lease, distribution, circulation or public exhibition of the said pirated videotapes. Ramos ascertained the information to be true and filed a verified Application for Search Warrant dated July 28, 1986 with prayer for the seizure of the properties described in the search warrant.

On the same date, a hearing was conducted by Judge Florentino A. Flor of the Regional Trial Court of Pasig, Branch 168, wherein Ramos and his two witnesses, Analie Jimenez and Rebecca Benitez-Cruz testified on the need for the issuance of search warrant. On July 28, 1986, the prayer for the issuance of the search warrant was granted and, on the same date, Search Warrant No. 23 was issued. On June 2, 1987, private respondent filed a Motion to Quash Search Warrant No. 23 on the grounds that the Search Warrant did not state a specific offense and that, even assuming it stated a specific offense, it covered more than one specific offense. The VRB opposed the Motion to Quash stating that Search Warrant No. 23 was issued for a single specific offense namely, violation of Section 56 and other related sections of Presidential Decree No. 49 as amended by Presidential Decree No. 1988. On September 30, 1987, the trial court denied the Motion to Quash finding that the Search Warrant was issued for one specific offense. A Motion for Reconsideration was filed but the same was likewise denied. Private respondent then filed an Urgent Motion to Lift the Search Warrant and For the Return of the Seized Articles alleging that Search Warrant No. 23 is a general warrant, and that it was issued without probable cause. On May 22, 1989, the assailed order was issued by Judge Benjamin V. Pelayo, now presiding over Branch 168 of the Pasig RTC, granting the Motion to Quash and ordering the return of all seized articles to private respondent. Petitioners appealed to the Court of Appeals, which affirmed the said Order in toto. Hence, this petition. In granting the Motion to Quash, the trial court relied on the Court's ruling in 20th Century Fox Film Corporation v. Court of Appeals, et al.[2] which involved violation of Presidential Decree No. 49, (otherwise known as the Decree on the Protection of Intellectual Property). In said case, video outlets were raided

pursuant to search warrants issued by the Regional Trial Court of Makati. However, the search warrants were later lifted by the same court on the ground of lack of probable cause because the master tapes of the alleged pirated tapes were never shown to the lower court. The Court affirmed the lifting of the search warrants holding that the presentation of the master tapes was necessary for the validity of the search warrants against those who have the pirated films in their possession. When the trial court granted the Motion to Quash Search Warrant No. 23 on May 22, 1989, it used as its justification the fact that, as the master copies were not presented to the court in its hearing of July 28, 1986, there was no probable cause to issue the said warrant, based on the pronouncements in 20th Century Fox. Petitioners now question the retroactive application of the 20th Century Fox decision which had not yet been promulgated in 1986 when the search warrant was issued. Petitioners further argue that, contrary to the trial court's finding, the search warrant was not a general warrant since the description of the items to be seized was specific enough. It removed from the serving officer any discretion as to which items to seize inasmuch as it described only those items which had a direct relation to the offense for which the search warrant was issued. The threshold issue that must first be determined is whether or not petitioners have the legal personality and standing to file the appeal. Private respondent asserts that the proceedings for the issuance and/or quashal of a search warrant are criminal in nature. Thus, the parties in such a case are the "People" as offended party and the accused. A private complainant is relegated to the role of a witness who does not have the right to appeal except where the civil aspect is deemed instituted with the criminal case. Petitioners, on the other hand, argue that as the offended parties in the criminal case, they have the right to institute an appeal from the questioned order.

From the records it is clear that, as complainants, petitioners were involved in the proceedings which led to the issuance of Search Warrant No. 23. In People v. Nano,[3] the Court declared that while the general rule is that it is only the Solicitor General who is authorized to bring or defend actions on behalf of the People or the Republic of the Philippines once the case is brought before this Court or the Court of Appeals, if there appears to be grave error committed by the judge or a lack of due process, the petition will be deemed filed by the private complainants therein as if it were filed by the Solicitor General. In line with this ruling, the Court gives this petition due course and will allow petitioners to argue their case against the questioned order in lieu of the Solicitor General. As regards the issue of the validity of Search Warrant No. 23, there are two questions to be resolved: first, whether the 20th Century Fox decision promulgated on August 19, 1988 is applicable to the Motion to Quash Search Warrant No. 23 (issued on July 28, 1986). We hold in the negative. In the recent Columbia Pictures, et al. v. Court of Appeals, et al.[4] case which resolved the same issue involving the same petitioners but with different respondents, the Court en banc held: "Mindful as we are of the ramifications of the doctrine of stare decisis and the rudiments of fair play, it is our considered view that the 20th Century Fox ruling cannot be retroactively applied to the instant case to justify the quashal of Search Warrant No. 87-053. Herein petitioners' consistent position that the order of the lower court of September 5, 1988 denying therein defendant's motion to lift the order of search warrant was properly issued, there having been satisfactory compliance with the then prevailing standards under the law for determination of probable cause, is indeed well taken. The lower court could not possibly have expected more evidence from petitioners in their application for a search warrant other than what the law and jurisprudence, then existing and judicially accepted, required with respect to the finding of probable cause. xxx xxx xxx

It is consequently clear that a judicial interpretation becomes a part of the law as of the date that law was originally passed, subject only to the qualification that when a doctrine of this Court is overruled and a different view is adopted, and more so when there is a reversal thereof, the new doctrine should be applied prospectively and should not apply to parties who relied on the old doctrine and acted in good faith. (People v. Jabinal, L-30061, February 27, 1974, 55 SCRA 607; Unciano Paramedical College, Inc., et al. v. Court of Appeals, et al., G.R. No. 100335, April 7, 1993, 221 SCRA 285; Tanada, et al. v. Guingona, Jr., etc, et al., G.R. No. 113888, August 19, 1994, 235 SCRA 507). To hold otherwise would be to deprive the law of its quality of fairness and justice then, if there is no recognition of what had transpired prior to such adjudication. (De Agbayani v. Philippine National Bank, et al., L-23127, April 29, 1971, 38 SCRA 429)." Likewise, the Court ruled therein that presentation of the master tapes in such cases is not an absolute requirement for a search warrant to issue: "More to the point, it is felt that the reasonableness of the added requirement in 20th Century Fox calling for the production of the master tapes of the copyrighted films for determination of probable cause in copyright infringement cases needs revisiting and clarification. xxx xxx xxx

In fine, the supposed pronunciamento in said case regarding the necessity for the presentation of the master tapes of the copyrighted films for the validity of search warrants should at most be understood to merely serve as a guidepost in determining the existence of probable cause in copyright infringement cases where there is doubt as to the true nexus between the master tape and the pirated copies. An objective and careful reading of the decision in said case could lead to no other conclusion than that said directive was hardly intended to be a sweeping and inflexible requirement in all or similar copyright infringement cases. Judicial dicta should always be construed within the factual matrix of their parturition, otherwise a careless interpretation thereof could unfairly fault the writer with the vice of overstatement and the reader with the fallacy of undue generalization xxx xxx xxx

It is evidently incorrect to suggest, as the ruling in 20th Century Fox may appear to do, that in copyright infringement cases, the presentation of master tapes of the copyrighted films is always necessary to meet the requirement of probable cause and that, in the absence thereof, there can be no finding of probable cause for the issuance of a search warrant. It is true that such master tapes are object evidence, with the merit that in this class of evidence the ascertainment of the controverted fact is made through demonstrations involving the direct use of the senses of the presiding magistrate. (City of Manila v. Cabangis, 10 Phil. 151 [1908]; Kabase v. State, 31 Ala. App. 77, 12 So. 2ND, 758, 764). Such auxiliary procedure, however, does not rule out the use of testimonial or documentary evidence, depositions, admissions, or other classes of evidence tending to prove the factum probandum (See Phil. Movie Workers Association v. Premiere Productions, Inc., 92 Phil. 843 [1953]) especially where the production in court of object evidence would result in delay, inconvenience or expenses out of proportion to its evidentiary value. (See 3 Jones on Evidence, Sec. 1400)." The instant case also differs from 20th Century Fox in that what herein private respondent put in issue was the application of the ruling in that case, not the conduct of Judge Flor in the issuance of Search Warrant No. 23. From the records, it is clear that Judge Flor observed all the requirements necessary before the search warrant was issued: he heard the testimonies and studied the despositions of the witnesses for the petitioners, namely Ms. Rebecca Benitez-Cruz, Ms. Analie I. Jimenez and the VRB's Intelligence Officer, Alfredo G. Ramos on the existence of probable cause before issuing the warrant. Under Sec. 3 and 4, Rule 126 of the Rules of Court, the requirements for the issuance of a valid search warrant are: "Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the judge or such other responsible officer 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 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." Having satisfied these requirements, Judge Flor committed no grave abuse of discretion in issuing the warrant. Private respondent contends that Search Warrant No. 23 also violates the constitutional requirements of particularity of the description of the warrant, being a general warrant and thus, is null and void. In several cases, this Court has held that: "To be valid, a search warrant must be supported by probable cause to be determined by the judge or some other authorized officer after examining the complainant and the witnesses he may produce. No less important, there must be a specific description of the place to be searched and the things to be seized, to prevent arbitrary and indiscriminate use of the warrant. (Sec. 3, Art. IV, 1974 Constitution, now Sec. 2, Art. III of the 1986 Constitution; Sec. 3, Rule 126 of the New Rules of Court; Stonehill v. Diokno, 20 SCRA 383; Lime v. Ponce de Leon, 66 SCRA 299; Uy Kheytin v. Villareal, 42 Phil. 886; People v. Veloso, 48 Phil. 169; People v. Rubio, 57 Phil. 384; Bache and Co., (Phil.) Inc. v. Ruiz, 37 SCRA 823; Roan v. Gonzales, 145 SCRA 687)."[5] (Underscoring supplied) When may a search warrant be deemed to satisfy the legal requirements of specificity? In Bache and Co., (Phil.) Inc. v. Ruiz, we said: "A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow (People v. Rubio, 57 Phil. 384); or when the description expresses a conclusion of fact - not of law - by which the warrant officer may be guided in making the search and seizure (idem., dissent of Abad Santos, J.); or when

the things described are limited to those which bear direct relation to the offense for which the warrant is being issued (Sec. 2, rule 126, Revised Rules of Court). . . . . If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence, other than those articles, to prove the said offense; and the articles, subject of search and seizure should come in handy merely to strengthen such evidence. . . . ." An examination of Search Warrant No. 23 shows that it was worded in such a manner that the enumerated items to be seized bear a direct relation to the offense of violation of Sec. 56 of Presidential Decree No. 49, as amended, which states: "(1) Transfer or cause to be transferred, directly or indirectly any sound recording or motion picture, or other audio-visual work that has been recorded on a phonograph record, disc, wire, tape, film or other article on which sounds, motion pictures, or other audio visual works are recorded, with intent to sell, lease, publicly exhibit or cause to be sold, leased or publicly exhibited, or to use or cause to be used for profit, such article on which sounds, motion pictures, or other audio visual works are so transferred, WITHOUT THE WRITTEN CONSENT OF HIS ASSIGNEE; or (2) Sell, lease, distribute, circulate, exhibit, offer for sale, lease, distribution, or possess for the purpose of sale, lease, distribution, circulation or public exhibition, any such article to which the sounds, motion pictures or audiovisual recordings thereon have been so transferred, without the written consent of the owner or his assignee; or (3) Offer or make available for a fee, rental or any other form of compensation, directly or indirectly any equipment, machinery, paraphernalia or any material with the knowledge that such equipment, machinery, paraphernalia or material, will be used by another to reproduce, without the consent of the owners any phonograph record, disc, wire, tape film or other article on which sound, motion pictures, or other audio-visual recordings may be transferred." In other words, it authorized only the seizure of articles used or intended to be used in the unlawful sale, lease and other acts in violation of the said decree. The search warrant ordered the seizure of the following properties:

"(a) Pirated video tapes of the copyrighted motion pictures/films the titles of which are mentioned in the attached list; (b) Posters, advertising leaflets, brochures, invoices, journal, ledgers, and books of accounts bearing/or mentioning the pirated films with titles (as per attached list); (c) Television sets, video cassettes records, rewinders, tape head cleaners, accessories, equipment and other machines and paraphernalia or material used or intended to be used in the unlawful sale, lease, distribution, or possession for purpose of sale, lease, distribution, circulation or public exhibition of the above-mentioned pirated video tapes which he is keeping and concealing in the premises above-described." Clearly, the above items could not be anymore specific as the circumstances will allow since they are all used or intended to be used in the unlawful sale or lease of pirated tapes. Therefore, the finding of the appellate court that Search Warrant No. 23 is a "general" warrant is devoid of basis. WHEREFORE, the assailed decision and resolution of respondent Court of Appeals, and necessarily inclusive of the order of the trial court dated May 22, 1989, are hereby REVERSED and SET ASIDE. The order of the trial court dated July 28, 1986 upholding the validity of Search Warrant No. 23 is hereby REINSTATED. Costs against private respondent. SO ORDERED. Regalado, (Chairman), Puno, and Torres, Jr., JJ., concur. Mendoza, J., on leave.

G.R. Nos. 94054-57 February 19, 1991 VICENTE LIM, SR. and MAYOR SUSANA LIM, petitioners, vs. HON. NEMESIO S. FELIX and HON. ANTONIO ALFANE, respondents. G.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, petitioners, vs. HON. NEMESIO S. FELIX and PROSECUTOR ANTONIO C. ALFANE, respondents. Francisco R. Llamas for petitioners in G.R. Nos. 94054-57. Jolly T. Fernandez, Elenito Bagalihog, Orlando M. Danao and Hechanova, Ballicid & Associates for petitioners in G.R. Nos. 94266-69.

Thereafter, and for the purpose of preliminary investigation, the designated investigator, Harry O. Tantiado, TSg, of the PC Criminal Investigation Service at Camp Bagong Ibalon Legazpi City filed an amended complaint with the Municipal Trial Court of Masbate accusing, among others, Vicente Lim, Sr., Mayor Susana Lim of Masbate (petitioners in G.R. Nos. 9405457), Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog, Mayor Nestor C. Lim and Mayor Antonio Kho (petitioners in G.R. Nos. 94266-69) of the crime of multiple murder and frustrated murder in connection with the airport incident. The case was docketed as Criminal Case No. 9211. After conducting the preliminary investigation, the court issued an order dated July 31, 1989 stating therein that: . . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary examination in searching questions and answers, concludes that a probable cause has been established for the issuance of a warrant of arrest of named accused in the amended complaint, namely, Jimmy Cabarles, Ronnie Fernandez, Nonilon Bagalihog, Jolly Fernandez, Florencio Fernandez, Jr., Vicente Lim, Sr., Susana Lim, Nestor Lim, Antonio Kho, Jaime Liwanag, Zaldy Dumalag and Rene Tualla alias Tidoy. (Rollo, p. 58, G.R. Nos. 94054-57) xxx xxx xxx

GUTIERREZ, JR., J.:p May a Judge without ascertaining the facts through his own personal determination and relying solely on the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest? On March 17, 1989, at about 7:30 o'clock in the morning, at the vicinity of the airport road of the Masbate Domestic Airport, located at the municipality of Masbate province of Masbate, Congressman Moises Espinosa, Sr. and his security escorts, namely Provincial Guards Antonio Cortes, Gaspar Amaro, and Artemio Fuentes were attacked and killed by a lone assassin. Dante Siblante another security escort of Congressman Espinosa, Sr. survived the assassination plot, although, he himself suffered a gunshot wound. An investigation of the incident then followed.

In the same Order, the court ordered the arrest of the petitioners and recommended the amount of P200,000.00 as bail for the provisional liberty of each of the accused. Petitioners Jolly Fernandez and Nonilon Bagalihog filed a motion for the reduction of bail which was granted by the court and they were allowed to post bail in the amount of P150,000.00 each. Except for Jimmy Cabarles, all the rest of the accused posted bail at P200,000.00 each. On August 29, 1989, the entire records of the case consisting of two hundred sixty one (261) pages were transmitted to the Provincial Prosecutor of

Masbate. Respondent Acting Fiscal Antonio C. Alfane was designated to review the case. On September 22, 1989, Fiscal Alfane issued a Resolution which affirmed the finding of a prima facie case against the petitioners but differed in the designation of the crime in that the ruled that ". . . all of the accused should not only be charged with Multiple Murder With Frustrated Murder" but for a case of MURDER for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the buttocks of Dante Siblante." (Annex "H", Comment of Fiscal Alfane, p. 186, Rollo, G.R. Nos. 94054-57) A motion to reconsider the Resolution filed by petitioners Vicente Lim, Sr. and Mayor Susana Lim was denied. On October 30, 1989, Fiscal Alfane filed with the Regional Trial Court of Masbate, four (4) separate informations of murder against the twelve (12) accused with a recommendation of no bail. On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed with us a verified petition for change of venue. (Case No. A.M. No. 89-11-1270MTC, formerly, G.R. Nos. 90587-90) On December 14, 1989, we issued an en banc Resolution authorizing the change of venue from the Regional Trial Court of Masbate to the Regional Trial Court of Makati to avoid a miscarriage of justice, to wit: 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 facie evidence 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 a prima 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. 9405457; Emphasis supplied) xxx xxx xxx The petitioners then filed these consolidated petitions questioning the July 5, 1990 Order. In a Resolution dated July 17, 1990 in G.R. Nos. 94054-57, we issued ". . . a TEMPORARY RESTRAINING ORDER, effective immediately and continuing until further orders from this Court, ordering the respondent judge or his duly authorized representatives or agents to CEASE and DESIST from enforcing or implementing the warrant of arrest without bail issued against the petitioners in his Order dated July 5, 1990 in Criminal Cases Nos. 5811-14. In another Resolution dated July 31, 1990 in G.R. Nos. 94266-69, we resolved: xxx xxx xxx We ruled:

. . . To ISSUE writs of (1) PRELIMINARY MANDATORY INJUNCTION, ordering and directing the respondent judge to recall/set aside and/or annul the legal effects of the warrants of arrest without bail issued against and served upon herein petitioners Jolly T. Fernandez, Florencio T. Fernandez, Jr. and Nonilon Bagalihog and release them from confinement at PCCIS 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 . . .

. . . 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, Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely on the strength of these earlier written statements of these witnesses that the Municipal Trial Court of Masbate found the existence of a prima facie case against petitioners and accordingly recommended the filing of a Criminal Information. Evidently, the same written statements were also the very basis of the "Fiscal's Certification", since the attached affidavits of recantation were not yet then available. Since the credibility of the prosecution witnesses is now assailed and put in issue and, since the petitioners have not yet been arraigned, it would be to the broader interest of justice and fair play if a reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect them from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials (Salonga v. 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. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur. Sarmiento, J., took no part. Xxxxxxx G.R. No. L-60349-62 December 29, 1983 CITY FISCAL NESTORIO M. PLACER, ASST. CITY FISCALS AGELIO L. BRINGAS, ERNESTO M. BROCOY, RAFAEL V. FLORES, FELIXBERTO L. GUIRITAN, MACARIO B. BALANSAG and ROSARIO F. DABALOS, all of Butuan City, and the PEOPLE OF THE PHILIPPINES, petitioners, vs. HON. JUDGE NAPOLEON D. VILLANUEVA, in his capacity as City Judge of Butuan, respondent. The Solicitor General for respondent.

The legal question raised in this petition is whether the certification of the investigating fiscal in the information as to the existence of probable cause obligates respondent City Judge to issue a warrant of arrest. The antecedent facts are not disputed. During the period from March 30 to April 14, 1982, petitioners, The City Fiscal of Butuan City and his assistants filed in the City Court of Butuan the following informations, to wit: CRIMINAL CASE NO. 1220 12210 TITLE People vs, Jimmy Tan People vs. Carlito Fortun People vs. Jarail Majini People vs. Amelita Dy People vs. Angelito Dy People vs. Jesus Aloyan People vs, Bebot Lauron People vs. Mariano Trani Slight Phy. Inj. Violation of P.D. 1306 -doViolation. of B.P. 22 -doEstafa Mal. Mischief Usurption of authority

12211 12212 12213 12214 12215 12216

ESCOLIN, J.:

Antonio Monghi t 1221 7 People vs. EIorde Subing bing Fernan do Sagay 1221 8 People vs. Perla Trasga People vs. Renato Dayan People vs. Edgard o Dayan People vs. Benito Sy Ibaez People Benito vs. Sy

authority

Ibaez These informations, except the last four, docketed as Criminal Cases Nos. 12219 12220, 12221. and '2222, were certified to by the respective investigating Fiscals as Follows: "that a preliminary examination has been conducted by me in this case, having examined 'the complainant and his witnesses; that on the basis of the sworn statements, and other evidence submitted before this Official there is reasonable ground to believe that the crime charged has been commited and that herein accussed is probably guilty thereof " The informations in Criminal Cases Nos. 12219 and 12220 bore the certification of 3rd Assistant Fiscal Felixberto Guiritan that I am filing this information upon directive of the Minister of Justice, who upon review of this resolution of the undersigned investigating fiscal has found prima facie case against herein accused, 1 while the informations in Criminal Cases Nos. 12221 and 12222 were certified to by 2nd Assistant Fiscal Ernesto M. Brocoy in this wise: "I am filing this information upon directive of the City Fiscal pursuant to the provisions of P.D. No. 911, who, upon review of the resolution of the investigating fiscal now on temporary detail with the office of the Provincial Fiscal of Surigao del Sur, has found prima facie case against the herein accused." 2 Following receipt of said informations, respondent judge issued an order setting on April 5, 1982 the hearing of said criminal cases for the purpose of determining the propriety of issuing the corresponding warrants of arrest. After said hearing, respondent issued the questioned orders dated April 13, 15, 16 and 19, 1982, requiring petitioners to submit to the court the affidavits of the prosecution witnesses and other documentary evidence in support of the informations to aid him in the exercise of his power of judicial review of the findings of probable cause by petitioners. 3 Petitioners filed two separate motions for reconsideration of said orders, contending that under P.D. Nos. 77 and 911, they are authorized to determine the existence of a probable cause in a preliminary examination/investigation, and that their findings as to the existence thereof constitute sufficient basis for the issuance of warrants of arrest by the court. 4 On April 28, 1982, respondent judge denied said motions and reiterated his order to petitioners to submit the supporting affidavits and other documents within five (5) days from notice. 5

Alarm & Scandal

Grave oral defamatio n Estafa

1221 9

1222 0

Estafa

1222 1

Estafa

1222 2

-do-

Hence, petitioners filed this petition for certiorari and mandamus to set aside the aforesaid orders and to compel respondent to issue the warrants of arrest in Criminal Cases Nos. 12209-12222. Meanwhile, the respondent, in addition to his duties as presiding judge of Branch I of the City Court of Butuan, was also assigned to preside over Branch II of said court, as Judge Jesus Ruiz, presiding judge of said sala, had retired from the service. The informations filed by petitioners in Branch II likewise remained dormant because of respondent's firm refusal to issue the corresponding warrants of arrest for want of affidavits of the witnesses. Thus, as disclosed by petitioner's urgent motion, 6 no warrants had been issued in 113 informations as of July 15, 1982. On July 12, 1982, respondent judge received Our May 19, 1982 Resolution requiring him to comment on the petition. However, interpreting the same as a denial of the petition itself, respondent issued on the following day, July 13, and Omnibus Order directing petitioners to submit immediately the supporting affidavits and other evidence in Criminal Cases Nos. 12209-12222. Having failed to secure a reconsideration of said Omnibus Order, petitioners finally submitted the required affidavits and documents on July 15, 1982 in order to avoid further delay in the prosecution of these cases. This move on the part of the petitioners would have rendered the instant petition moot and academic. But while respondent gave due course to some of said cases either by issuing the warrants of arrest or taking some other appropriate action, 7 he refused to issue the warrants in Criminal Cases Nos. 12417, 12418, 12419, 12420 and 12422, and instead ordered the records thereof remanded to the City Fiscal "for further preliminary investigation or reinvestigation," for on the bases of said affidavits, respondent found no prima facie case against the accused. Petitioners therefore filed a motion with this Court to restrain respondent from enforcing the orders subject of the main petition and to compel him to accept, and take cognizance of, all the informations filed in his court. They contend that the fiscal's certification in the information of the existence of probable cause constitutes sufficient justification for the judge to issue a warrant of arrest; and that such certification binds the judge, it being supported by the

presumption that the investigating fiscal had performed his duties regularly and completely. Upon the other hand, respondent justifies his order as an exercise of his judicial power to review the fiscal's findings of probable cause. He further maintains that the failure of petitioners to file the required affidavits destroys the presumption of regularity in the performance of petitioners' official duties, particularly in the light of the long standing practice of the Office of the City Fiscal of Butuan of attaching to the informations filed with the court the affidavits of prosecution witnesses and other documentary evidence presented during the preliminary investigation. The issue to be resolved is whether or not the respondent city judge may, for the purpose of issuing a warrant of arrest, compel the fiscal to submit to the court the supporting affidavits and other documentary evidence presented during the preliminary investigation. We sustain the position of respondent judge. The primary requirement for the issuance of a warrant of arrest is the existence of probable cause. Section 3, Article IV of the 1973 Constitution provides that... 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 recognized by law, after examination under oath or affirmance of the complainant and the witnesses he may produce .... P.D. No. 911 authorizes the fiscal or state prosecutor to determine the existence of probable cause. Thus, If on the basis of complainant's sworn statements and documents submitted, the investigating dismiss the raise. If probable cause is established by complainant's evidence, he shall notify the respondent

by issuing a subpoena .... (Sec. 1 [b], RA 5180, as amended by P.D. Nos. 77 and 911). The fiscal or state prosecutor shall certify under oath in the information to be filed by him that he has examined the complainant and his witnesses; that on the basis of the sworn Statements and other evidence submitted before him there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof ... (Sec. 1[d], Id.). There is thus no dispute that the judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest, But does such certification bind the judge to come out with the warrant? We answer this query in the negative. 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 fiscals 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. vs. Ocampo 8 and Amarga vs. Abbas. 9 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 longstanding practice had been attached to the informations 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 cases where he was satisfied that probable cause existed. German to the issue at hand is the Rule on Summary Procedure in Special Cases 10 applicable to the following, to wit: I. B. Criminal Cases: (1) Violation of traffic laws, rules and regulations; (2) Violations of the rental laws; (3) Violations of municipal or city ordinances; (4) All other criminal cases where the penalty prescribed by law for the offense charged does not exceed six (6) months imprisonment, or a fine of One Thousand Pesos [1,000.00], or both irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom; Provided, however, that in offenses involving damage to property through reckless negligence, this Rule shall govern where the imposable fine does not exceed Ten Thousand Pesos [10,000.00]. In said cases, the filing of the affidavits of witnesses with the court is mandatory. Section 9, par. 2 of said Rule prescribes that "the complaint or information must be accompanied by the affidavits of the complainant and of his witnesses in such number of copies as there are defendants plus two (2) copies for the court's files. Section 10 of the Summary Rule provides: On the basis of the complaint or information and the affidavits accompanying the same, the court shall

make a preliminary determination whether to dismiss the case outright for being patently without basis or merit, or to require further proceedings to be taken. In the latter case, the court may set the case for immediate arraignment of an accused under custody, and if he pleads guilty, may render judgment forthwith. If he pleads not guilty, and in all other cases, the court shall issue an order, accompanied by copies of all the affidavits submitted by the complainant, directing the defendants to appear and submit his counter-affidavit and those of his witnesses at a specified date not later than ten (10) days from receipt thereof. Failure on the part of the defendant to appear whenever required, shall cause the issuance of a warrant for his arrest if the court shall find that a probable cause exists after an examination in writing and under oath or affirmation of the complainant and his witnesses. The obvious purpose of requiring the submission of affidavits of the complainant and of his witnesses is to enable the court to determine whether to dismiss the case outright or to require further proceedings. One last point. It appears that after petitioners had submitted the required affidavits of witnesses, the respondent judge ordered Criminal Cases Nos. 12417, 12418, 12419, 12420 and 12422 remanded to the City Fiscal for further preliminary investigation or reinvestigation. We hold that respondent did not abuse his discretion in doing so. From the informations and affidavits presented to him, he found the charges patently without basis or merit. For respondent to issue the warrants of arrest and try the accused would only expose the latter to unnecessary harrassment, anxiety and expense. And as already pointed out, under the Rule on Summary Procedure in Special Cases, the respondent judge has the power to order the outright dismissal of the charge if, from the information and the affidavits attached thereto, he finds the same to be patently without basis or merit. WHEREFORE, the petition is hereby dismissed. No costs.

SO ORDERED. Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur. Aquino, J., took no part. Xxxxxxxx G.R. Nos. 93419-32 September 18, 1990 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. GUALBERTO P. DELGADO, PRESIDING JUDGE, RTC, Br. 29, Toledo City, ELSIE RAGO LUMANGTAD, VIVENCIA ABARIDO, AVELINA BUTASLAC, ROSELLANO BUTASLAC, HAYDELISA LUMANGTAD, SILVESTRE LUMANGTAD, MAXIMO RACAZA, NENA RACAZA, VICTORIANO/ VICTOR RAGO, EDNA TEJAS, MERCEDITA TEJAS, TEOFISTO TEJAS, BERNABE TOQUERO, JR., and PEDRO RAFAELA, respondents. Jose P. Balbuena for petitioner. Fred B. Casas for respondents.

GANCAYCO, J.: The authority of the Regional Trial Court (RTC) to review the actions of the Commission on Elections (COMELEC) in the investigation and prosecution of election offenses filed in said court is the center of controversy of this petition. On January 14, 1988 the COMELEC received a report-complaint from Atty. Lauron E. Quilatan, Election Registrar of Toledo City, against

private respondents for alleged violation of the Omnibus Election Code. The COMELEC directed Atty. Manuel Oyson, Jr., Provincial Election Supervisor of Cebu, to conduct the preliminary investigation of the case. After conducting such preliminary investigation, Oyson submitted a report on April 26, 1989 finding a prima facie case and recommending the filing of an information against each of the private respondents for violation of Section 261 (y) (2) and (5) of the Omnibus Election Code. The COMELEC en banc in minute resolution No. 89-1291 dated October 2, 1989 as amended by resolution No. 89-1574 dated November 2, 1989 resolved to file the information against the private respondents as recommended. On February 6, 1990, fifteen (15) informations were filed against each of private respondents in the RTC of Toledo City docketed as Criminal Cases Nos. TCS-1220 to TCS-1234. In three separate manifestations the Regional Election Director of Region VII was designated by the COMELEC to handle the prosecution with the authority to assign another COMELEC prosecutor. Private respondents, through counsels, then filed motions for reconsiderations and the suspension of the warrant of arrest with the respondent court on the ground that no preliminary investigation was conducted. On February 22, 1990 an order was issued by respondent court directing the COMELEC through the Regional Election Director of Region VII to conduct a reinvestigation of said cases and to submit his report within ten (10) days after termination thereof. The Toledo City INP was directed to hold in abeyance the service of the warrants of arrest until the submission of the reinvestigation report. 1 On March 16,1990 the COMELEC Prosecutor filed a motion for reconsideration and opposition to the motion for reinvestigation alleging therein that it is only the Supreme Court that may review the decisions, orders, rulings and resolutions of the COMELEC. This was denied in an order dated April 5, 1990 whereby the respondent trial court upheld its jurisdiction over the subject matter. 2

Hence, the herein petition for certiorari, mandamus and prohibition wherein the following issues are raised: (a) Whether or not the respondent Court has the power or authority to order the Commission on Elections through its Regional Election Director of Region VII or its Law Department to conduct a reinvestigation of Criminal Cases Nos. TCS-1220 to TCS-1234; (b) Whether or not the respondent court in issuing its disputed order dated April 5,1990 gravely usurped the functions of the Honorable Supreme Court, the sole authority that has the power to review on certiorari, decisions, orders, resolutions or instructions of the Commission on Elections; and (c) Whether or not the respondent Court has the power or authority to order the Comelec Law Department to furnish said respondent the records of preliminary investigation of the above criminal cases for purposes of determining a probable cause. 3 The main thrust of the petition is that inasmuch as the COMELEC is an independent constitutional body, its actions on election matters may be reviewed only on certiorari by the Supreme Court. 4 On the other hand, the respondents contend that since the cases were filed in court by the COMELEC as a public prosecutor, and not in the exercise of its power to decide election contests, the trial court has authority to order a reinvestigation. Section 2, Article IX-C of the Constitution provides: SEC. 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall (2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial, and city officials and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction or involving elective baranggay officials decided by trial courts of limited jurisdiction. Decisions, final orders, or rulings of the commission on election contests involving elective municipal and barangay offices shall be final, executory, and not appealable (3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters. (4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections. (5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this Constitution, or

which are supported by any foreign government shall likewise be refused registration. Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their registration with the Commission in addition to other penalties that may be prescribed by law. (6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusions or exclusion of voters; investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices. (7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates. (8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision. (9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or recall. (Emphasis supplied.) Section 52, Article VII of the Omnibus Election Code (Batas Pambansa Blg. 881) provides among the powers and functions of the COMELEC as follows-

Sec. 52. Power and functions of the Commission on Elections.-In addition to the powers and functions conferred upon it by the Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conduct of elections for the purpose of securing free, orderly and honest elections .... (Emphasis supplied.) Section 7, Article IX-A of the Constitution reads thus SEC, 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law any decision, order, of ruling or each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Emphasis supplied.) From the aforementioned provisions of Section 2, Article IX-C of the Constitution the powers and functions of the COMELEC may be classified in this manner (1) Enforcement of election laws; 5 (2) Decision of election contests; 6 (3) Decision of administrative questions; 7 (4) Deputizing of law enforcement agencies; 8 (5) Registration of political parties; 9 and

(6) Improvement of elections. 10 As provided in Section 7, Article IX of the Constitution, unless otherwise provided by law, any decision, order or ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. In Filipinas Engineering and Machine Shop vs. Ferrer, 11 this Court held that "what is contemplated by the term final orders, rulings and decisions' of the COMELEC reviewable on certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by said body in the exercise of its adjudicatory or quasi-judicial powers." Thus, the decisions of the COMELEC on election contests or administrative questions brought before it are subject to judicial review only by this Court. However, under Section 2(6), of Article IX-C of the Constitution, the COMELEC may "investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses and malpractices." Under Section 265 of the Omnibus Election Code, the COMELEC, through its duly authorized legal officers, "have the exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to prosecute the same." Section 268 of the same Code provides that: "The regional trial courts shall have exclusive original jurisdiction to try and decide any criminal action or proceedings for violation of this Code, except those relating to the offense of failure to register or failure to vote which shall be under the jurisdiction of the metropolitan or municipal trial courts. From the decision of the courts, appeal will lie as in other criminal cases." From the foregoing provisions of the Constitution and the Omnibus Election Code, it is clear that aside from the adjudicatory or quasijudicial power of the COMELEC to decide election contests and administrative questions, it is also vested the power of a public prosecutor with the exclusive authority to conduct the preliminary

investigation and the prosecution of election offenses punishable under the Code before the competent court. Thus, when the COMELEC, through its duly authorized law officer, conducts the preliminary investigation of an election offense and upon a prima facie finding of a probable cause, files the information in the proper court, said court thereby acquires jurisdiction over the case. Consequently, all the subsequent disposition of said case must be subject to the approval of the court. 12 The COMELEC cannot conduct a reinvestigation of the case without the authority of the court or unless so ordered by the court. 13 The records of the preliminary investigation required to be produced by the court must be submitted by the COMELEC. The trial court may rely on the resolution of the COMELEC to file the information, by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation, in the issuance of the warrant of arrest. Nevertheless 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. 14 The refusal of the COMELEC or its agents to comply with the order of the trial court requiring them to conduct a reinvestigation in this case and to submit to the court the record of the preliminary investigation on the ground that only this Court may review its actions is certainly untenable. One last word. The petition is brought in the name of the People of the Philippines. Only the Solicitor General can represent the People of the Philippines in this proceeding. 15 In the least, the consent of the Office of the Solicitor General should have been secured by the COMELEC before the filing of this petition. On this account alone, the petition should be dismissed. WHEREFORE, the petition is DISMISSED for lack of merit. No pronouncement as to costs. SO ORDERED.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Fernan, C.J. and Paras, J., are on leave. Xxxxxxxxxx G.R. No. L-34038 June 18, 1976 Customhouse, Pasay City, petitioner, vs. District, stationed at Pasig, Rizal, and CESAR T. MAKAPUGAY, respondents. G.R. No. L-34243 June 18, 1976 NICANOR MARCELO, petitioner, vs. HON. ONOFRE A. VILLALUZ, as Judge of the Circuit Criminal Court, 7th Judicial District stationed at Pasig, Rizal, and SALVADOR T. MASCARDO, as Collector of Customs stationed at the MIA Airport Customhouse, respondents. G.R. No. L-36376 June 18, 1976 CALIXTO D. ENRIQUEZ, REYNALDO REYES AND LUCILA ENRIQUEZ, petitioners, vs. HON. ONOFRE A. VILLALUZ, GREGORIO CONDE AND ANASTACIA TORILLO, respondents. G.R. No. L-38688 June 18, 1976 FRANCISCO P. FELIX, petitioner, vs. THE HON. JUDGE ONOFRE A. VILLALUZ and FELIX C. HALMAO, respondents.

G.R. No. L-39525 June 18, 1976 PEDRO E. NIEVA, JR., petitioner, vs. HON. ONOFRE A. VILLALUZ, in his capacity as Judge of the Circuit Criminal Court, 7th Judicial District, JOSE ARELLANO, and THE PEOPLE OF THE PHILIPPINES, respondents. G.R. No. L-40031 June 18, 1976 PEDRO E. NIEVA, petitioner, vs. HON. ONOFRE A. VILLALUZ, in his capacity as Judge of the Circuit Criminal Court, 7th Judicial District, JOSE ARELLANO and THE PEOPLE OF THE PHILIPPINES, respondents.

particularly C.B. Circular 265, as amended, the respondent brought into the country various Philippine Money in the amount of Two Thousand Two Hundred Eighty (P2,280.00) Pesos cleverly hidden in one of the pieces of baggage examined by the assigned customs examiner, without any prior permit from the Central Bank authorities. ... " (p. 11, rec.). Respondent Judge assumed jurisdiction to conduct and did conduct the preliminary investigation, and on July 6, 1971, issued the challenged order, dismissing "the case with prejudice and ordering the return to private respondent the amount of P2,280.00, his passport No. Ag-2456 FA - No. B103813, and one (1) box of air-conditioning evaporator only, as well as the forfeiture of forty (40) cartons of untaxed blue seal Salem cigarettes and five (5) bottles of Johnny Walker Scotch Whiskey" (p. 13, rec.). Armed with said order, private respondent Makapugay demanded that petitioner release the articles so stated. Petitioner Collector of Customs refused to obey the order due to the "prior institution of seizure proceedings thereon." The refusal prompted respondent Makapugay to file a complaint for "Open Disobedience" under Article 231 of the Revised Penal Code, before the City Fiscal of Pasay City. Hence, this petition for certiorari with preliminary injunction, seeking to annul and set aside the order dated July 6, 1971 on the ground that respondent Judge has no power to conduct a preliminary investigation of criminal complaints directly filed with him, cannot legally order the dismissal "with prejudice" of a criminal case after conducting a preliminary investigation thereon, and is without authority to order the return of articles subject of seizure proceedings before Customs authorities. In due time, respondents filed their respective answers to the petition and subsequently both parties submitted their respective memoranda in lieu of oral argument. G. R. No. L-34243 On June 22, 1971, respondent Collector of Customs filed a letter- complaint with respondent Judge against petitioner Nicanor Marcelo for an alleged

MAKASIAR, J.:p G.R. No. L-34038 On July 1, 1971, petitioner Collector of Customs, Salvador T. Mascardo filed against Cesar T. Makapugay, a letter complaint with respondent Judge of the Circuit Criminal Court for violation of: (a) Section 174 of the National Internal Revenue Code, as amended by Republic Act No. 4713, (b) Central Bank Circular No. 265, in relation to Section 34 of Republic Act No. 265, otherwise known as The Central Bank Act, and (c) Section 3601 and 3602 of Republic Act No. 1937, in relation to Sections 2505 and 2530 (m) 1 of the same Act, claiming that Cesar T. Makapugay "with malicious intention to defraud the government criminally, willfully and feloniously brought into the country FORTY (40) cartons of "untaxed blue seal" Salem cigarettes and FIVE (5) bottles of Johny Walker Scotch Whiskey, also "untaxed", without the necessary permit from the proper authorities. The respondent submitted a Baggage Declaration Entry which did not declare the said articles. The Customs Examiner assigned further asked him if he has something more to declare but the answer was in the negative. And in utter disregard of existing Central Bank Circulars

violation of Section 3602 in relation to Section 2505 of Republic Act 1937, otherwise known as the Tariff and Customs Code, supposed to have been committed in the following manner: ... Mr. Marcelo who is an arriving passenger from Hongkong on board a Philippine Air Lines plane, Flight 307, on June 22, 1971, criminally, feloniously, and with intention to defraud the government did not declare the contents of his pieces of baggage in the Baggage declaration Entry nor with the assigned Customs Examiner. ... When his pieces of baggage were examined, instead of personal effects as declared in the Baggage Declaration Entry, what were found were various assorted Watches, Bags, Montagut shirts and Dress materials which are highly taxable. The act of passenger Marcelo in intentionally refusing to declare the said articles in the Baggage Declaration Entry, and before the Customs Examiner despite inquiries made, constitute a criminal offense within the meaning of Section 3602 of the Tariff and Customs Code of the Philippines. ... (p. 19, rec.). The criminal complaint having been docketed as Case No. CCC-VII-854-P.C., the respondent Judge assumed jurisdiction over the objection of petitioners counsel, conducted the preliminary examination and investigation, simultaneously in the manner provided for by Section 13, Rule 112 of the New Rules of Court, and thereafter on October 6, 1971 issued the following order: WHEREFORE, there being a preliminary investigation and examination conducted by the Court and considering that the respondent was given a chance to defend himself let a Warrant of Arrest be issued for his apprehension. The respondent is hereby ordered to post a bond in the amount of P5,000.00 for his provisional release.

Pursuant to Section 6, Rule 135 of the New Rules of Court, in relation to Section 13, Rule 113 thereto, the City Fiscal of Pasay is hereby ordered to file the corresponding information against the respondent before this court of competent jurisdiction within FORTY EIGHT (48) HOURS from receipt hereof (p. 23, rec.) Petitioner Nicanor Marcelo filed this action for certiorari with preliminary injunction, impugning the validity of the order of respondent Judge dated October 6, 1971, on the same ground as the petition in G.R. No. L-34038. On October 20, 1971, the Supreme Court adopted resolution requiring respondents to rile an answer and likewise issued a writ of preliminary injunction, "restraining respondent Judge, his representatives, assigns or persons acting upon his orders, place or stead, from executing, enforcing and implementing his order of October 6, 1971 ... "(p. 32, rec.) In compliance therewith, respondent Judge filed a petition for admission of answer on November 29, 1971 (pp. 43-44, rec.), which was granted by this Court in its December 13, 1971 resolution (p. 62, rec.). On the other hand, respondent Collector of Customs, through the Solicitor General, filed a manifestation on February 1, 1972, adopting as his answer to the petition, the legal grounds averred in the original petition in G.R. No. , Collector of Customs, etc. versus Hon. Onofre A. Villaluz, etc., et al (p. 72, rec.). On June 13, 1972, the Supreme Court by resolution resolved to consider the case submitted for decision after noting the failure of petitioner to file his memorandum (p. 94, rec.). G. R. No. L-36376 On February 22, 1973, private respondents Gregorio Conde and Anastacia Torillo, filed a complaint directly with the Circuit Criminal Court, indicting petitioners with violations of the Anti-Graft Law.

The complaint was ultimately docketed and on the same day (February 22, 1973), respondent Judge forthwith issued an order of the following tenor: Considering that the complaint filed ... sufficient in form and substance, the same having been filed in accordance with Section 13, Rule 112 of the New Rules of Court, and pursuant to the doctrine laid down by the Supreme Court in the case of "Mateo vs. Villaluz," let the preliminary investigation of this case be set on February 24, 1973 at 8:00 o'clock in the morning (p. 22, rec.). On the day set, petitioners appeared at the sala of respondent Judge who proceeded to conduct a preliminary investigation of the case. The same was reset on February 26, 1973. Immediately before the hearing of February 26, 1973, petitioners, through counsel, filed an "Urgent Motion to Suspend Preliminary Investigation" contesting the power of the respondent Judge to conduct the preliminary examination and investigation (p. 23, rec.), which was denied by respondent Judge in his order dated February 27, 1973 (p. 31, rec.). Counsel for petitioners then asked for time to raise the issue before this Court, which respondent Judge granted by giving petitioners a period of just one (1) day to seek relief from this Tribunal. Accordingly, herein petitioners filed this petition. On March 2, 1973, this Court required respondents to answer the petition and issued a temporary restraining order "enjoining respondent Judge from ... causing and effecting the arrest of petitioners herein" (p. 39, rec.). In his answer filed on March 14, 1973, respondent Judge, invoking the same arguments in G.R. No. L-34243, held on to the view that the Circuit Criminal Courts are vested with the power and authority to conduct preliminary investigations. G. R. No. L-38688

On May 23, 1974, private respondent Felix Halimao filed a criminal complaint directly with the Circuit Criminal Court presided over by respondent Judge charging herein petitioner with alleged violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which complaint was docketed as Criminal Case No. Prel. Inv. 116-Rizal. At the hearing of May 27, 1974, petitioner, through counsel, filed an "Urgent Motion to Suspend Preliminary Investigation" (p. 9, rec.) based on the ground that respondent Judge has no authority to conduct the same. After arguments by counsels for both parties, the respondent Judge denied petitioner's motion. An oral motion for reconsideration was likewise denied (pp. 14-15, rec.). Hence, this petition. On May 31, 1974, this Court by resolution gave due course to the petition and issued a restraining order, "enjoining respondent Judge, his agents, representatives, and/or any person or persons acting upon his orders or in his place or stead from proceeding further with the preliminary investigation ... " (p. 24, rec.) On June 17, 1974, it appearing that the case involved in the petition is criminal in nature, the Court required herein petitioner to IMPLEAD the People of the Philippines as party-respondent (p. 26, rec.). In conformity thereto, petitioner through counsel, filed on June 28, 1974 an amended petition impleading The People (pp. 49-50, rec.). Except for the Solicitor General who appeared for The People of the Philippines, respondents in answer, frontally met the averments of petitioner. G. R. No. L-39625 On October 24, 1974, petitioner filed this instant petition seeking to annul "any preliminary investigation conducted by respondent Judge in Preliminary Inv. No. 72-Rizal, Circuit Criminal Court, 7th Judicial District, as well as the warrant, if any, that may be issued for the arrest and imprisonment of

petitioner" and to enjoin permanently respondent Judge from conducting preliminary investigations and from ordering petitioner's arrest. On October 30, 1974, the Court required the respondents to file their answer within ten (10) days from notice thereof and issued, effective immediately, a temporary restraining order against respondent Judge (p. 64, rec.). On November 13, 1974, the Solicitor General filed a manifestation requesting to be excused from filing an answer considering that in three other cases (The Collector of Customs v. Hon. Onofre A. Villaluz, G.R. No. L-34038; Nicanor Marcelo v. Hon. Onofre A. Villaluz, G.R. No. L-34243; and Francisco Felix v. Hon. Onofre A. Villaluz, G.R. No. L-38688) which involve the same legal issue, his office maintains that respondent Judge has no authority to conduct a preliminary investigation of criminal cases which he may try and decide under Republic Act No. 5179 (p. 81, rec.). On November 20, 1974, private respondent filed his answer (pp. 87-104, rec.). Petitioner, on January 22, 1975, filed a motion praying that the instant case be consolidated and decided jointly with G.R. Nos. L-34038, L-34243, L-36376 and L-38688 as they involve the same issue; and that the memoranda filed for petitioners in said four cases be reproduced and adopted as the memorandum for petitioner in this case, which should be deemed submitted for decision together with the aforementioned cases (pp. 122-124, rec.). Said motion was granted in the resolution of February 10, 1975 (p. 129, rec.). In his pleading dated February 5, 1975, private respondent (pp. 130-132, rec.) stated that he joins the petitioner in his plea for the consolidation of the instant case with cases Nos. L-34038, L-36376 and L-38688 and prayed that the memorandum filed by respondent in L-38688 be considered reproduced and adopted as the memorandum for private respondent in this case, in addition to the affirmative defenses and arguments contained in private respondent's answer to the petition, and that this case be submitted for decision together with the aforementioned cases (p. 137, rec.). The records disclosed the following antecedent facts.

On January 11, 1974, herein private respondent Jose Arellano filed a complaint against Pedro E. Nieva, Jr., herein petitioner, together with his wife Pacita and daughter Patricia N. with the Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, for violation of the Anti-Graft and Corrupt Practices Act (RA No. 3019) in connection with the P230,000.00 industrial loan obtained by the Areson Woodtech Manufacturing Company headed by the complainant, Jose Arellano, from the Development Bank of the Philippines, where herein petitioner holds the Position of Auditor. The cm was docketed therein as Criminal Case Prel. Inv. CCC-VII-72 Rizal (pp. 1-2, 90-91, pp. 14-16 [Annex "A"] rec.). On the same day the aforesaid complaint was filed in court, respondent Judge issued an order that reads: Pursuant to Section 14, Rule 112 of the New Rules of Court in relation to the doctrine laid down by the Supreme Court in the mu of "Mateo versus Villaluz", Assistant City Fiscal Teodoro B. Santos is hereby ordered to conduct the preliminary investigation of the above-entitled case within five (5) days from receipt hereof and to file the necessary information in a court of competent jurisdiction if the evidence so warrants. ... (pp. 2, 91 [Annex "B"], pp. 21-22, rec.). On May 22, 1974, investigating Fiscal Teodoro B. Santos endorsed the records of the case back to respondent Judge, because ... (T)he facts and circumstances which has (sic) been the basis of this instant suit is the same set of first and circumstances and involving the same parties in a case of ESTAFA THRU FALSIFICATION now pending preliminary investigation and also before this Honorable Court. Hence, this endorsement in order to avoid duplication of effort and time in' the resolution and disposition of the same incident.

In an urgent ex-parte motion dated May 24, 1974 filed with the Circuit Criminal Court pursuant to paragraph 1 of the Joint Circular of the Department of Justice and the Department of National Defense dated April 29, 1974, herein private respondent prayed that the endorsement of Fiscal Santos be given due course and that the preliminary investigation be conducted by the respondent Judge (pp. 3, 92, 104 [Annex "I"], rec.). Herein petitioner opposed the same in a pleading dated June 1, 1974 (p. 3, pp. 40-49 [Annex "F"], rec.), which was amplified in another pleading dated September 24, 1974 (pp. 3, 50-59 [Annex "G"], rec.). Under date of June 18, 1974, private respondent filed a motion to strike out herein petitioner's opposition to complainant's ex parte urgent motion for preliminary investigation in view of the failure of herein petitioner's counsel to comply with the order of the Court to furnish a copy of his opposition to complainant Jose Arellano (pp. 93, 105-106 [Annex "2"], rec.). On September 24, 1974, herein petitioner filed his opposition to the motion to strike out herein respondent's opposition (pp. 7, 55-59 [Annex "G"], rec.). On the same day, a hearing was conducted by the respondent Judge on the urgent motion for preliminary investigation and immediately thereafter, he denied said opposition of herein petitioner (Annex "H", p. 62, pp. 3, 93, rec.). Hence, this petition. G. R. No. L-40031 On November 2, 1973, Jose Arellano, private respondent herein, filed with the Circuit Criminal Court at Pasig, Rizal, a complaint charging herein petitioner with estafa, allegedly committed under the circumstances provided for in paragraph 4 1(b) Article 315 of the Revised Penal Code (p. 12, rec.). Said complaint was subsequently docketed as CCC Case No. Prel. Inv. -65-Rizal. Thereupon, respondent Judge proceeded to conduct the preliminary investigation in question. After the termination of the proceedings, respondent Judge issued on May 31, 1974 the challenged resolution which reads:

Wherefore, pursuant to Section 13, Rule 113 of the New Rules of Court, Assistant City Fiscal Teodoro B. Santos is hereby ordered to file the necessary information for the crime of Estafa against respondent Pacita Nieva, in a court of competent jurisdiction, within forty-eight (48) hours from receipt hereof. Let a warrant of arrest be issued for the immediate apprehension of respondent Mrs. Pacita Nieva, and for her provisional liberty, she is hereby ordered to post a bond in the amount of P20,000.00. (p. 24, rec.). On July 26, 1974, petitioner's counsel filed an urgent motion to declare the preliminary investigation proceedings null and void ab initio due to lack of jurisdiction on the part of the court. to conduct the same, re-echoing the arguments invoked by petitioners in G. R. Nos. L-34038, L-34243, L-36376 and L-38688 (p. 14, rec.). In an order dated August 8, 1974, respondent Judge denied the same (p. 22, rec.). On January 28, 1975, this Court by resolution required respondents to file an answer to the petition and not to move for the dismissal of the same. The Court further' resolved to consolidate the case with Cases Nos. L-38688, L34038, L-34243, and L-36376 (p. 26, rec.). In a manifestation filed on February 10, 1975, the Solicitor General requested that he be excused from filing an answer on the ground that in three cases (G.R. Nos. L-34038, L-34243 and L-38688), which involve the same legal issue, the counsel for the People has taken the position that respondent Judge has no authority or jurisdiction to conduct a preliminary investigation of criminal cases which he may try and decide under Republic Act No. 5179. Private respondent, on the other hand, through the Citizens Legal Assistance Office of the Department of Justice, filed his answer on February 20, 1975, maintaining that respondent Judge has jurisdiction to conduct preliminary

investigation invoking particularly Section 13, Rule 112 of the Revised Rules of Court in relation to Sections 1, 3 and 6 of Republic Act No. 5179. The one common legal issue posed by these six cases is whether a Circuit Criminal Court possesses the power to conduct preliminary investigations. Neither the explanatory note to House Bill No. 9801 (now R.A. No. 5179,) nor the available Congressional debates intimate that Circuit Criminal Courts are clothed with the authority to conduct preliminary examinations and investigations (Congressional Records of House, March 28, 1967, pp. 41-45; May 15, 1967). WE therefore examine the law. Petitioners, in maintaining that respondent Judge has no such power, rest their claim on Section I of Republic Act No. 5179, which provides: In each of the sixteen judicial districts for the Court of First Instance as presently constituted, there is hereby created a Circuit Criminal Court with limited jurisdiction, concurrent with the regular Court of First Instance, to try and decide the following criminal cases falling under the original and exclusive jurisdiction of the latter: a. Crimes committed by public officers, crimes against persons and crimes. against property as defined and penalized under the Revised Penal Code, whether simple or complex with other crimes; b. Violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, ... ; c. Violations of Sections 3601, 3602 and 3604 of the Tariff and Customs Code and Sections 174, 175 and 345 of the National Internal Revenue Code. (emphasis supplied).

Petitioners argue that said courts, having been conferred limited jurisdiction, cannot exercise such power of preliminary investigation, the same not being embraced and contemplated within its given function to "try and decide" specific criminal cases. What is limited by Republic Act No. 5179 is the scope of the cases that may be tried by Circuit Criminal Courts. Circuit Criminal Courts are of limited jurisdiction, only because they cannot try and decide all criminal cases falling under the jurisdiction of the Courts of First Instance as courts of general jurisdiction. They can only take cognizance of cages expressly specified in Section 1 of Republic Act No. 5179, as amended by Presidential Decree No. 126. Nevertheless, they have the same powers and functions as those conferred upon regular Courts of First Instance necessary to effectively exercise such special and limited jurisdiction. This is plain and evident from Sections 3 and 6 of their organic law, Republic Act No. 5179: Section 3. The provisions of all laws and the Rules of Court relative to the judges of the Courts of First Instance and the trial, and disposition and appeal of criminal cases therein shall be applicable to the circuit judge and the cases cognizable by them insofar as they are not inconsistent with the provisions of this act. xxx xxx xxx Section 6. ... Unless inconsistent with the provisions of this Act, the Circuit Criminal Courts shall have the same powers as those conferred by the Judiciary Act and the Rules of Court upon regular Courts of First Instance, insofar as may be necessary to carry their jurisdiction into effect.

Judges of the regular Courts of First Instance are expressly conferred the authority to conduct preliminary examination and investigation by Sections 13 and 14 of Rule 112 of the Revised Rules of Court: Section 13. Preliminary examination and investigation by the judge of the Court of First Instance. Upon complaint filed directly with the Court of First Instance, without previous preliminary examination and investigation conducted by the fiscal, the judge thereof shall either refer the complaint to the justice of the peace referred to in the second paragraph of Section 2, hereof - for preliminary examination and investigation, or himself conduct both preliminary examination and investigation simultaneously in the manner provided in the preceding sections, and should he find reasonable ground to believe that the defendant has committed the offense charged, he shall issue a warrant for his arrest, and thereafter refer the case to the fiscal for the filing of the corresponding information. (emphasis supplied). Section 14. Preliminary examination and investigation by provincial or city fiscal or by state attorney in cases cognizable by the Court of First Instance. Except where an investigation has been conducted by a judge of first instance, justice of the peace or other officer in accordance with the provisions of the preceding sections no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal, or state attorney, without first giving the accused a chance to be heard in a preliminary investigation conducted by him or by his assistant by issuing a corresponding subpoena. ... The power of preliminary examination and investigation, which may be exercised by judges of the Circuit Criminal Courts, is without doubt, "not inconsistent with the provisions of Republic Act No. 5179," and likewise, "necessary to carry their jurisdiction into effect."

Moreover, Congress further confirmed that the Court of First Instance has the power to conduct preliminary investigation by approving on September 8, 1967 Republic Act No. 5180, prescribing a uniform system of preliminary investigation by all government prosecutors, which provides: Sec. 1. Notwithstanding any provision of law to the contrary and except when an investigation has been conducted by a Judge of First Instance, city or municipal judge or other officer in accordance with law and the Rules of Court of the Philippines, no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal or any of his assistants, or by a state attorney or his assistants, without first giving the amused a chance to be heard in a preliminary investigation conducted by him by issuing a corresponding subpoena. ... Sec. 2. The provisions of Section fifteen, Rule 112, of the New Rules of Court Of the Philippines, shall be observed in the investigations of persons in custody. From the abovequoted Provisions, Republic Act No. 5180 likewise continues the procedure prescribed in the Revised Rules of court of 1964, Particularly Rule 112 thereof. The aforequoted portion of Section 1 of Republic Act No. 5180 was not modified by the amendatory Presidential Decrees Nos. 77 and 911 issued respectively on December 6, 1972 and March 23, 1976. More decisively, the 1935 as well as 1973 Constitution vests this essential power in all courts to first determine probable cause before ordering the arrest of those charged with a criminal offense (Section 1[3], Art. III, 1935 Constitution; See. 3, Art. IV, 1973 Constitution). The determination of "Probable cause" is the sole object of preliminary examinations. Surely, congress could not have possibly intended to deny the Circuit Criminal Courts such constitutional prerogative, which is part of the basic constitutional right of

an individual whose person cannot be legally seized without prior preliminary examination by a judge. WE enunciated that the creation of the Circuit Criminal Courts is for the purpose of alleviating the burden of the regular Courts of first Instance and to accelarate the disposition of criminal cases pending to be filed therein (People vs. Gutierrez, etc., et al., 36 SCRA 172; Osmea vs. Sec. of Justice, G.R. No. L-32033, Sept 30, 1971, 199) or to contribute to the speedy resolution of criminal cases and help curb the progress of criminality in the country (Paraguya vs. Tiro, 41 SCRA 13s). As opined by Mr. Justice Barredo in his concurring opinion in the Gutierrez case, supra, "... Circuit Criminal Courts are nothing but additional branches of the regular Courts of First Instance in their respective districts ..." , which he reiterated in his concurring opinion in the Osmea case, thus: My principal reason for my vote in favor of the judgment in this case is that I cannot find any justification for allowing the Secretary of Justice to have any part at all in the distribution or assignment of cases among the different branches of any Court of First Instance, of which the corresponding Circuit Criminal Court is one. I took this view in my concurring opinion in the case of People v. Gutierrez, cited in the main opinion of Justice Villamor, and I cannot see why I must opine differently now. ... (41 SCRA 211). If the main purposes then in creating Circuit Criminal Courts are to alleviate the burden of the regular Courts of First Instance and to accelerate the disposition of the cases therein as well as stem the tide of criminality, it is only logical that such authority vested in the judges of the Courts of First Instance is likewise conferred on Circuit Criminal Courts. Otherwise, the Courts of First Instance would still be carrying the burden of conducting preliminary. investigations in those cases where Circuit Criminal Courts have jurisdiction and consequently delaying the trial and disposition of criminal cases pending before such Courts of First Instance.

That Congress, in enacting Republic Act No. 5179 clearly intended, by Sections 3 and 6 thereof, to clothe the Circuit Criminal Court with all the powers vested in regular Courts of First Instance including the authority to conduct preliminary examinations and investigations, is confirmed by the Dangerous Drugs Act of 1972, otherwise known as Republic Act No. 6425, as amended by Presidential Decree No. 44, Section 39 of which confers on Circuit Criminal Courts, Courts of First Instance and Juvenile and Domestic Relations Courts concurrent original jurisdiction over all offenses punishable thereunder and expressly directs that the "preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date-of their filing." Before the amendment, the law required only seven (7) days from the date of the commencement of the preliminary investigation. Section 39, as amended, reads: Sec. 39. Jurisdiction. The Court of First Instance, Circuit Criminal Court and Juvenile and Domestic Relations Court shall have concurrent original jurisdiction over all cases involving offenses punishable under this Act: Provided, that in cities or provinces where there are Juvenile and Domestic Relations Courts, the said courts shall take exclusive cognizance of cases where the offenders are under sixteen years of age. The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing. Where the preliminary investigation is conducted by a prosecuting officer and a prima facie case is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a prima facie case is found to exist, the corresponding information shall be filed by the proper prosecuting officer within forty-eight (48) hours from the date of receipt of the records of the case.

Trial of the cases under this section shall be finished by the court not later than ninety (90) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case. It is patent that the aforequoted provision of Section 39 of Republic Act No. 6425 affirms the power of the Circuit Criminal Courts to conduct preliminary examination and investigation in all the cases falling under their jurisdiction and additionally fixes the period for preliminary investigation, the filing of the information and the rendition of decisions in all offenses penalized by the Dangerous Drugs Act of 1972. Under the amendment, the Circuit Criminal Court no longer has exclusive, but still retains concurrent, jurisdiction with the Court of First Instance and Juvenile and Domestic Relations Courts under the Dangerous Drugs Act. Its authority to conduct preliminary examination and investigation granted under Section 6 of Republic Act No. 5179, remains intact and undiminished; because the amendatory decree expressly directs that "If the preliminary investigation is conducted by a judge and a prima facie case is found to exist, the corresponding information should be filed by the proper prosecuting officer ... " There is nothing in the amendatory decree from which it can be reasonably inferred that since the jurisdiction of the Circuit Criminal Court over violations of the Dangerous Drugs Act is no longer exclusive, Circuit Criminal Court Judges no longer possess the authority to conduct preliminary examination and investigation. Recognizing the constitutional power of the courts, including the Courts of First Instance, to conduct preliminary examination, other special laws specifically vest such authority exclusively in the Court of First Instance in case of violation of the Revised Election Code (Sec. 187, 1947 Revised Election Code, as amended; Sec. 234, 1971 Rev. Election Code) and of the Anti-subversion Act when the penalty imposable for the offense is prision mayor to death (Sec. 16, Rep. Act No. 1700). It is urged that the word "judge" in the above-quoted section of Presidential Decree No. 44 (and also in the. 1935 and 1973 Constitutions) contemplates not the Court of First Instance Judge nor the Circuit Criminal Court Judge but

the municipal judge. As heretofore stated, it is an elementary precept in statutory construction that where the law does not distinguish, WE should not distinguish (Colgate Palmolive Philippines, Inc. vs. Gimenez, L-14787, Jan. 28, 1961, 1 SCRA 267). The Statute cannot give a restricted meaning to the generic term "judge", used in the constitutional guarantee against unreasonable searches and seizures. Furthermore, in People versus Manantan (L-14129, July 31, 1962, 5 SCRA 684), a justice of the peace, accuse of violating Section 54 of the Revised Election Code, moved to dismiss the information on the ground that the law refers merely to a justice, judge, or fiscal and that being a justice of the peace, he is beyond the coverage of the said Code. The Supreme Court in denying such contention, held that there was no need of including justices of the peace in the enumeration in said section because the legislature had availed itself of the more generic term "judge". The term "judge", not modified by any word or phrase, is intended to comprehend all kinds of judges, including justices of the peace. The cases of People versus Paderna (22 SCRA 273) and Paraguya versus Tiro (41 SCRA 137) involved not the power of the Circuit Criminal Court to conduct preliminary investigation, but its jurisdiction to try and decide certain They do not at all reveal an iota of any further restriction on the limited jurisdiction of the Circuit Criminal Court other than those delineated in existing laws. Thus, in the Paderna case, supra, involving a violation of Section 174 of the Tax Code, Mr. Chief Justice Castro, then Associate Justice, speaking for the Supreme Court in ruling that the Circuit Criminal Court was without jurisdiction to take cognizance of the case, stated: ... [T]he charge is for unlawful possession of untaxed "blue seal cigarettes" of an appraised value of less than P500.00 ... and the penalty provided under Republic Act 4713 is a fine of not less than P50.00 nor more than P200.00 and imprisonment of not less than 5 nor more than 30 days because the value of the cigarettes does not exceed P500.00, this case falls

within the original and exclusive jurisdiction of the city court. ... ... Section 1 of Republic Act 5179, which took effect on September 8, 1967, provides in part that circuit criminal courts shall have limited jurisdiction concurrent with the regular court of first instance, to try and decide the following criminal cases falling under the original and exclusive jurisdiction of the latter. xxx xxx xxx The jurisdiction of the circuit criminal courts is thus dependent not only on the type of cases but also on the penalties provided for those cases. Inasmuch as the case at bar falls within the exclusive and original jurisdiction of the City Court, it cannot, even if it involves a violation of section 174 of the Tax Code, be taken cognizance of by circuit criminal courts, the jurisdiction of which is concurrent with that of courts of first instance where the latter's jurisdiction is original and exclusive. The same ruling was substantially reiterated in the more recent Tiro case, supra, involving indirect bribery committed by a public officer. In passing upon the issue of the Circuit Criminal Court's limited jurisdiction, the Supreme Court, through Mr. Justice Jose B. L. Reyes, held: ... The law (R.A. 5179) confined the jurisdiction of the circuit criminal courts (which is even made concurrent with the courts of first instance) to crimes committed by public officers; ... only where they are falling within the original and exclusive jurisdiction of the court of first instance. In short, circuit criminal courts' jurisdiction was limited merely to cases involving crimes specifically enumerated in Section 1 of Republic Act 5179, for which the penalty prescribed

by law is imprisonment for more than 3 year (or 6 years in proper cases), or fine of more than 3 years (or 6 years in proper cases), or fine of more than P3,00.00 (or P6,000.00 as the case may be), or both such fine and imprisonment (sec. 44[f] in relation to Sec. 87[c], Judiciary Act of 1948, as amended; Esperat vs. Avila, L-25922, June 30, 1967, 20 SCRA 596; Mangila vs. Lantin, L-24735, October 31, 1969, 30 SCRA 81; People vs. Tapayan , L-36885, November 28, 1969, 30 SCRA 529; Andico vs. Roan, L-26563, April 16, 1968, 23 SCRA 93). Since indirect bribery is penalized under the Revised Penal Code with imprisonment for a period not exceeding six months, suspension and public censure (Art. 211, RPC), the case is clearly removed from the competence of the circuit criminal court to pass upon. It is not denied that the crime of indirect bribery is essentially one committed by public officers. Jurisdiction of the court, however, is determined not only by nature of the offense charged in the information, but also by the penalty imposable thereto. ... (emphasis supplied). In these two cases, it was made clear that for the Circuit Criminal Court to acquire jurisdiction, the offense must not only be one of those enumerated under Section 1 of Republic Act No. 5179; it should also be within the original and exclusive jurisdiction of the regular Courts of First Instance. In the aforesaid cases, the Circuit Criminal Court was clearly without jurisdiction to hear and decide the offenses involved, by command of the specific provisions of its charter, the Judiciary Act and the Revised Penal code; and not by a directive of the Supreme Court, which merely applied in said cited cases the statutory prescriptions. The Supreme Court cannot legally define additional restrictions, which is the sole prerogative of the law-making authority. The contrary view appears to entertain the mistaken notion that Section 13, Rule 112 of the Revised Rules of Court, being a rule of procedure, the same should be rendered inoperative by reason of the fact that the Supreme Court

cannot, by promulgating a rule of procedure, arrogate jurisdiction unto itself or grant any to the lower courts. It is of course basic that only the Constitution and the law can confer jurisdiction to hear and decide certain cases. But equally true is the fact that both the 1935 and 1973 Constitutions expressly delegated to the Supreme Court the rule-making authority the power to promulgate rules of pleading, practice and procedure and to amend the existing laws thereon. The law or rule of preliminary investigation is undoubtedly a rule of procedure. The 1935 Constitution states: The Supreme court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be inform for all courts of the same grade and shall not diminish, increase or modify, substantive rights. The existing laws on pleading, practice, and substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Courts, subject to the power of the Supreme court to alter and modify the same. The Congress shall have the power to repeal, alter or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines (Sec. 13, Art. VIII, 1935 Constitution). The 1973 Constitution similarly authorizes the Supreme Court to Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the practice of law, and the integration of the Bar, which, however, may be repeated, altered, or supplemented by the National Assembly. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade. and shall not diminish, increase or

modify substantive rights (Sec. 5[5], Art, X, 1973 Constitution). Sections 13 and 14 of Rule 112 of the Revised Rules of Court merely implement Section 3 of Article Ill of the 1935 Constitution (now Section 3 of Article IV of the 1973 Constitution). Section 13 of Rule 112 of the Revised Rules of Court was not an innovation as it merely restated Section 13 of General Order No. 58, Section 37 of Act No. 1627, and Sections 2 and 4 of Rule 108 of the 1940 Rules of Court, in obedience to its rule-making authority under Section 13, Article VIII of the 1935 Constitution. Rule 112 does not modify substantive rights but continues the procedure already operative prior to the 1935 Constitution. WE have ruled that Rule 108 of the 1940 Rules of Court, which is the predecessor of Rule 112 of the 1964 Revised Rules of Court, is an adjective or procedural rule (Bustos vs. Lucero, 81 Phil. 640). While admitting that Court of First Instance were previously clothed with the power of preliminary investigation by virtue of Section 37 of Act 1627, nevertheless, it is argued that this same section was amended when the Judiciary Act of 1948 was enacted since under Section 99 of said Judiciary Act, "All laws and rules inconsistent with the provisions of this Act' were repealed. the inconsistency, it is claimed, lies in the fact that while the authority of municipal courts and city courts to conduct preliminary investigation was reiterated in said Judiciary Act, there was no mention therein whether Courts of First Instance Judges are still possessed of such authority. If such repeal was intended, it is unconstitutional; because the Constitutions of 1935 and 1973 vest in the Judge the power to issue a warrant of arrest or search warrant after conducting a preliminary investigation or examination. Congress could not divest the court of such authority as the Constitution does not permit it, for the constitutional guarantee on arrest or search warrant is not qualified by some such phrase as "unless otherwise provided by law." For a clearer appreciation, the Constitutional guarantee on arrest and search warrant reads: (3) The rights of the people to be secure in their persons, houses, papers, and effects against

unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized (Art. III, 1935 Constitution, emphasis supplied). 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 complaint and the witness he may produce, and particularly describing the place to be searched, and the persons or things to be seized (Art. IV, 1973 Constitution, emphasis supplied). It is clear from the aforequoted provisions of the 1973 Constitution that until now only the judge can determine the existence of probable cause and can issue the warrant of arrest. No law or presidential decree has been enacted or promulgated vesting the same authority in a particular "responsible officer." Hence, the 1973 Constitution, which was ratified and took effect on January 17, 1973, should govern the last four cases, namely, Nos. L-36376, L-38688, L-39525 and L-40031, which arose after January 17, 1973. But even under the 1935 Constitution, the term seizures or seized comprehends arrest. Thus, in Vivo versus Montesa (July 29, 1968, 24 SCRA 155), reiterating the doctrines in the cases of Qua Chee Gan, et al. vs. Deportation Board (L-20280, Sept. 30, 1963) and Morano vs. Vivo (L-22196, June 30, 1967, 20 SCRA 162), WE ruled unanimously through Mr. Justice J.B.L. Reyes:

Nevertheless, we are of the opinion that the issuance of warrants of arrest by the Commissioners of Immigration, solely for purposes of investigation and before a final order of deportation is issued, conflicts with paragraph 3, Section 1, of Article III (Bill of Rights) of our Constitution, providing: 3. 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. (Art. III, 1773 Constitution, emphasis supplied). It will be noted that the power to determine probable cause for warrants of arrest is limited by the Philippine Constitution to judges exclusively, unlike in previous organic laws and the Federal Constitution of the United States that left undetermined which public officials could determine the existence of probable cause. And in Qua Chee Gan, et al. vs. Deportation Board, L-20280, promulgated on September 30, 1963, this Court pointed out that Executive Order No. 69, of July 29, 1947, issued by President Roxas, in prescribing the procedure for deportation of aliens, only required the filing of a bond by an alien under investigation, but did not authorize his arrest.

Discussing the implications of the provision of our Bill of Rights on the issuance of administrative warrants of arrest, this Court said in the same case: xxx xxx xxx Under the express terms of our Constitution it is, therefore, even doubtful whether the arrest of an individual may be ordered by any authority other than the judge if the purpose is merely to determine the existence of probable cause, leading to an administrative investigation. The Constitution does not distinguish between warrants in a criminal case and administrative warrants in administrative proceedings. And if one suspected of having committed a crime is entitled to a determination of the probable cause against him, by a judge, why should one suspected of a violation of an administrative nature deserve less guarantee? Of course it is different if the order of arrest is issued to carry out a final finding of a violation, either by an executive or legislative officer or agency duly authorized for the purpose, as then the warrant is not that mentioned in the Constitution which is issuable only on probable cause. Such, for example, would be a warrant of arrest to carry out a final order of deportation, or to effect compliance of an order of contempt.

The(n) contention of the Solicitor General that the arrest of a foreigner is necessary to carry into effect the power of deportation is valid only when, as already stated, there is already an order of deportation. To carry out the order of deportation, the president obviously has the power to order the arrest of the deportee. But, certainly, during the investigation, it is not indispensable that the alien be arrested. It is enough, as was true before the executive order of President Quirino, that a bond be required to insure the appearance of the alien during the investigation, as was authorized in the executive order of President Roxas. Following the same trend of thought, this Court, in Morano vs. Vivo (L-22196, 30 June 1967, 20 SCRA, 562; Phil. 1967-B, page 741), distinguished between administrative arrest in the execution of a final deportation order and arrest as preliminary to further administrative proceedings. The Court remarked in said case: Section 1 (3), Article Ill of the Constitution, we perceive, does not require judicial intervention in the execution of a final order of deportation issued in accordance with law. The constitutional limitation contemplates an order of arrest in the exercise of judicial power as a step preliminary or incidental to prosecution or proceedings for a given offense or administrative action,

not as a measure indispensable to carry out a valid decision by a competent official, such as a legal order of deportation issued Commissioner of Immigration, in circumstance of legislation (L-24576, pp. 161-1621). The foregoing doctrine was last reiterate in Ang, et al. versus Galang, etc. (L21426, Oct. 22, 1975). Under the American Constitution, the aforesaid terms include not only arrest but also invitations for police interview or interrogation as well as stop-and-frisk measures. In the 1968 case of Terry versus Ohio, the United States Supreme Court enunciated: ... It is quite plain that the Fourth Amendment governs "seizures" of the person which do not eventuate in a trip to the station house and prosecution for crime "arrests" in traditional terminology. It must be recognized that whenever a police officer accounts an individual and restrain his freedom to walk away, he has "seized" that person (392 U.S. 1, 16 88 S.C.T. 1868, 20 L.E.D. 2d 889; 903 [1968].) That the aforesaid terms seizures and seized signify arrest was deliberately intended by the founding fathers of the 1935 Constitution, which words are likewise employed in the 1973 Constitution, Delegate Miguel Cuaderno categorically recounted: An amendment affecting the issuance of an order of arrest and search warrant, to the effect that in each case the order must be supported by the testimony of the complainant and the witnesses he may produce, made before the judge, and also an amendment providing that prisoners charged with capital offenses shall be bailable before conviction unless the evidence of guilt is strong, were approved upon the

initiative of Delegates Francisco. It was the prevailing opinion among many delegate that one courts had been rather easy in the issuance of order of arrest or search warrants, and charged with capital offenses (Cuaderno, the Framing of the Philippine Constitution, p. 65, Emphasis supplied). Delegate Jose Aruego added: During the debates on the draft, Delegate Francisco proposed an amendment being the insertion of the words, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. The Idea in the Francisco amendment was not new in the Philippines; for it was provided for in the Code of Criminal Procedure of the Philippines. The signification of the Idea into a constitutional provision was zealously insisted upon, in order to make the principle more sacred to the judges and to prosecuting pointed out in the debates, causes by the issuance of search warrants, which were generally found afterwards to be false (Aruego, Framing of the Philippine Constitution, Vol. I, p.160). The term "judge" employed in both Constitutions cannot be so limited to "municipal judge" as to exclude the judge of the Court of First Instance and Circuit Criminal Court (People vs. Manantan, 5 SCRA 684, 690-695). WE are not justified to create a distinction where the Constitution does not make any. In general, "judge" is a term employed to designate a public officer selected to preside and to administer the law in a court of justice (Ark. School Dist. No. 18 vs. Grubbs Special School Dist., 43 S.W. 2d 765, 766, 184 Ark. 863, 48 CJS 946). According to intent or context, the term "judge" may include an assistant judge (N.H. City Bank v. Young, 43 N.H. 457); a country or court justice (Mo.

State v. O'Gorman, 75 Mo. 370); a justice of the peace (N.Y. People v. Mann 97 N.Y. 530, 49 Am. R.556). The term "a judge", in Gen. St. C. 47, Art. 1 & 22, providing that "a judge" may cause any house or building to be searched for the protection of gambling tables, etc., is equivalent to "any judge" and comprehends an entire class, and cannot, without disturbing its meaning, be restricted in its applications to judges of county, city and police courts and therefore the judge of the Louisville Law and equity court has authority to issue a warrant for such a research (Com. v. Watzel, 2 S.W. 123, 125, 84 KY 537). Admittedly, Section 99 of the Judiciary Act contains a repealing clause which provides: "All laws and rules inconsistent with the provisions of this Act are hereby repealed." The question may now be asked: What is the nature of this repealing clause? It is certainly not an express repealing clause because it fails to Identify or designate the Act or Acts that are intended to be repealed (Sutherland, Statutory Construction, [1934], Vol. 1, p. 467). Rather, it is a clause which predicates the intended repeal upon the condition that a substantial and an irreconcilable conflict must be found in existing and prior Acts. Such being the case, the presumption against implied repeals and the rule against strict construction regarding implied repeals apply ex propio vigore, for repeals and amendments by implication are not favored (Jalandoni vs. Andaya, L-23894, Jan. 24, 1974, 55 SCRA 261, 265-6; Villegas vs. Subido, L-31711, Sept. 30, 1971, 41 SCRA 190; Quimseng vs. Lachica, 2 SCRA 182). Indeed, the legislature is presumed to know the existing laws; so that, if a repeal is intended, the proper step is to so express it with specificity (Continental Insurance Co. vs. Simpson, 8 F[2d] 439; Webb vs. Bailey, 151 Ore. 2188, 51 P[2d] 832; State vs. Jackson, 120 W. Va. 521, 199 S.E. 876). The failure to add a specific repealing clause indicates that the intent was not to repeal any existing law (Crawford, Construction of Statute, 1940 ed., p. 631), unless an irreconcilable inconsistency and repugnancy exist between the terms of the new and of the old statutes (Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13 SCRA 377). Here, there is no such inconsistency. To begin with, the two laws, although with a common objective, refer to different persons and different methods applicable under different circumstances. Thus, while Section 87 of the Judiciary Act provides that

municipal judges and judges of city courts may also conduct preliminary investigation for arty offense alleged to have been committed within their respective municipalities and cities ... ; Section 37 of Act 1627 reads in part that such power of "every justice of the peace including the justice of Manila, ... shall not exclude the proper judge of the Court of First Instance ... from exercising such jurisdiction." WE should not, and cannot, adopt the theory of implied repeal except upon a clear and unequivocal expression of the will of Congress, which is not manifest from the language of Section 99 of the Judiciary Act, apart from the fact that Congress by itself alone had no power to amend the Constitution. The opposite view likewise denies that the jurisdiction of our courts to conduct preliminary investigation could be traced to the Constitution, adding that the Charter of Manila and other cities confer upon the respective fiscals of said cities the power to conduct preliminary investigations. The organic acts prior to the 1935 Constitution did not prohibit the conferment of such a power to conduct preliminary examination or investigation on quasijudicial officers like the city fiscals of chartered cities (see the instructions of President McKinley to First Philippine Commission, the Philippine Bill of 1902, Jones Law of 1916, and the Revised Administrative Code of 1917). But the power thus granted to the Manila City Fiscals (and later to City Fiscals and City Attorneys of other chartered cities) to conduct preliminary investigations did not and does not include the authority to issue warrants of arrest and search warrants, which warrants the courts alone can issue then as now. The constitutional guarantee against unreasonable searches and seizures under the 1935 Constitution provides that only a judge can issue a search warrant or warrant of arrest after he has by himself personally determined the existence of probable cause upon his examination under oath of the complainant and his witnesses; although as ruled in one case, he may rely on the investigation conducted by the fiscal or prosecutor (Amarga vs. Abbas, 98 Phil. 739, 741-42). It is patent that under the 1935 Constitution, only the "judge" is directed to conduct a preliminary examination for the issuance of the warrant of arrest by express constitutional conferment.

But the 1973 Constitution empowers the National Assembly to grant the power to issue search warrants or warrants of arrest after conducting the necessary preliminary examination to "other responsible officer." Until such a law is enacted by the National Assembly, only the judge can validly conduct a preliminary examination for the issuance of a warrant of arrest or search warrant. Even when the fiscal or prosecutor conducts the preliminary investigation, only the judge can validly issue the warrant of arrest. This is confirmed by Section 6 of Rule 112 of the 1964 Revised Rules of Court, which directs the judge to issue the warrant of arrest when he is "satisfied from the preliminary. examination conducted by him or by the investigating officer (referring to the fiscal or the municipal mayor under Sec. 5) that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, ... ." Thus, the power of the city prosecutors to conduct preliminary examination and investigation (minus the authority to issue warrants of arrest or search warrant) is purely statutory. On the other hand, the judge derives his authority not only from the Rules of Court, but also and originally from the fundamental law to which all other laws are subordinate. If an objection must be raised, it should be against the authority of the fiscal to exercise such power of preliminary investigation, which, as has been stated, is merely statutory. No less than the Constitution confers upon the judge the power to conduct such examination and investigation. The case of Albano versus Alvarez (December 22, 1965, 15 SCRA 518) is authority for the proposition that Sec. 13 of Rule 112 of the 1964 Revised Rules of Court contains an innovation, which requires that, when the Court of First Instance itself conducts the preliminary investigation, it must not only conduct the preliminary examination proper but the preliminary investigation as well since Section 13 commands the Court of First Instance to conduct both the preliminary examination and investigation simultaneously (523-524). Said Albano case does not negate but recognizes the authority of the judge of the Court of First Instance to conduct such preliminary investigation. It is true that this COURT held expressly and impliedly that under the charters of the cities of Manila, Bacolod and Cebu, the power to conduct preliminary

investigation is exclusively lodged in the city prosecutor (Sayo vs. Chief of Police, 80 Phil. 859, 868-869, May 12, 1948; Espiritu vs. De la Rosa, 45 OG 196; Montelibano vs. Ferrer, 97 Phil. 228, June 23, 1955; and Balite vs. People, 18 SCRA 280, 285-286, Sept. 30, 1966). But the charters of the cities of Manila, Bacolod and Cebu do not contain any provision making such grant of power to city prosecutors exclusive of the courts (Kapunan, Criminal Procedure, 3rd Edition, 1960), which cannot be deprived of such authority to conduct preliminary examination because said prerogative of the courts emanates from the Constitution itself. Unless the Constitution is amended, the judge cannot be divested of such a power, which is an essential element of the cardinal right of an individual against unreasonable searches and seizures. If the present city charters conferred on city fiscals or city prosecutors the power to issue warrants of arrest it would be an unconstitutional grant of power under the 1935 Constitution. As heretofore intimated, the present practice or rule of court authorizing the judge to issue warrants of arrest based on the preliminary investigation conducted by the city fiscal, seems to violate the 1935 Constitution, which requires the judge himself to conduct the preliminary examination. Neither the judge nor the law can delegate such an authority to another public officer without trenching upon this constitutional guarantee against unreasonable searches and seizures. The theory that Courts of First Instance and Circuit Criminal Courts Judges cannot exercise the power of preliminary examination and investigation, and that as a necessary consequence, they cannot also issue warrants of arrest, obviously collides with the 1935 and 1973 Constitutions. Moreover, the theory tolerates an unthinkable because anomalous situation wherein the Court of First Instance and the Circuit Criminal Court must wait for prosecutors and courts inferior to them to conduct the preliminary examination and/or to issue the needed warrants of arrest before they could effectively exercise their power to try and decide the cases falling under their respective jurisdiction. This situation would make the Courts of First Instance and Circuit Criminal Courts totally dependent upon state prosecutors and municipal courts, which are inferior to them, for their proper functioning. The possibility that the administration of criminal justice might stand still will not be very remote.

The two-fold purpose for which the Circuit Criminal Courts were created was to alleviate the burden of the regular Courts of First Instance and accelerate the disposition of criminal cases filed therein (Osmea vs. Secretary of Justice, supra; People vs. Gutierrez, supra). Such being the admitted purpose, the power to conduct preliminary examination must necessarily attach to the duties of a Circuit Criminal Court Judge; for aside from being one of the instruments by which a case may be accelerated and disposed of, it is a duty which trully lies within the scope of the office, essential to the accomplishment of the main purpose for which the office was created (Sec. 3, Art III, 1935 Constitution; Sec 3, Art. IV, 1973 Constitution), even if regarded as incidental and collateral, is germane to and serves to promote the accomplishment of the principal purpose (Lo Cham vs. Ocampo, 77 Phil. 635). WE RULE that both Section 1(3), Article III of the 1935 Constitution provide the source of the power of all Judges, including Judges of the Court of First Instance, the Circuit Criminal Courts, and other courts of equivalent rank, to conduct the examination to determine probable cause before the issuance of the warrant of arrest and therefore sustain the proceedings conducted by respondent Judge leading to the issuance of the warrants of arrest and his referral of the cases to the fiscal or other government prosecutor for the filing of the corresponding information. II It may be well to trace briefly the historical background of our law on criminal procedure. During the Spanish regime, the rules of criminal procedure were found in the Provisional Law on Criminal Procedure which accompanied the Spanish Penal Code. The two laws were published in the Official Gazette in Manila on March 13 and 14, 1887 and became effective four (4) months thereafter(U.S. vs. Tamparong, 31 Phil. 32-33; Francisco, Criminal Procedure, 1969, ed., p. 8). While the Provisional Law on Criminal Procedure provided or governadorcillo, it did not require any preliminary examination or investigation before trial. The sumario was abolished by General Order No. 58 (U.S. vs. Tamparong, supra; Navarro, Criminal Procedure, 1960 ed., pp. 171, 174; Revilla, Vol. 2. Philippine Penal Code and Procedure, 1930 ed., pp. 1134-35).

When the Philippine came under American sovereignty General Order No. 58 was promulgated by the U.S. Military Governor in the exercise of his legislative powers as commander-in-chief of the occupation army and took effect on April 13, 1900. General Order No. 58 was amended by Act No. 194 of August 10, 1901, the Philippine Bill of 1902, Act No. 590 of January 9, 1903, Act No. 1627 of July 1, 1907, the Jones Law of 1916, Section 2474 of the Revised Administrative Code of 1917, Act No. 3042 of March 10, 1922, and Act No. 4178 of December 5, 1934. General Order No. 58 amended (Sec.1) the Criminal Code of Procedure enforced during the Spanish regime and vested in the magistrate "the authority to conduct preliminary investigation (Sec. 13) for the issuance of the warrant of arrest" and authorized "a judge or a justice of the peace" to issue a search warrant upon his determination of the existence of probable cause therefor "particularly describing the place to be searched and the person or thing to be seized" (Secs. 95 and 97). The term "magistrate" comprehended the court of First Instance (Temporosa vs. Yatco, 79 Phil. 225, 226 [1947]; Marcos vs. Cruz, 68 Phil. 96, 104-107 [1939]; People vs. Red, 55 Phil. 706, 710 [1931]; People vs. Solon, 47 Phil. 443 441 [1925]; Navarro Criminal Procedure, 960 ed., 1973; Padilla, Criminal Procedure, 1965 ed., p. 270). A "magistrate" is an officer having power to issue a warrant for the arrest of a person charged with a public offense. People vs. Swain, 90 P. 720, 722 5 Cal. App. 421 citing Pen. Code, S807. A "magistrate" is an officer having power to issue a warrant for the arrest of a person charged with the commission of a crime. The arrest of a person charge with the commission of a crime. The following persons are magistrates: (1) the justices of the Supreme Court; (2) the judges of the Circuit Court; (3) the county judges and justices of the peace;

(4) all municipal officers authorized to exercise the power and perform the duties of a justice of the peace. Wallowa County v. Oakes, 78 P. 892, 46 Or. 33 (26 Words and Phrases, pp. 44, 45). Act No. 194 of August 10, 1901 amended General Order No. 58 by empowering "every justice of the peace ... to make preliminary investigation of any crime allege to have been committed within his municipality, jurisdiction to hear and determine which is by law now vested in the judges of the Courts of First Instance" (emphasis supplied). The obvious inference from the aforequoted provision of Act No. 194 is that before its passage, the justice of the peace had no power to conduct preliminary investigation of any offense triable by the Court of First Instance, which alone can conduct such preliminary investigation of a crime under its original jurisdiction pursuant to General Order No. 58. But its enactment did not divest the Court of First Instance of such authority. In the 1939 case of Marcos, et al. versus Cruz, the Supreme Court, through Justice Imperial, sustained the power of the Court of First Instance to conduct preliminary investigations under Sections 13 and 14 of General Order No. 58 (68 Phil. 96, 106-107), which was impliedly followed in the 1947 case of Temporosa versus Yatco, et al., supra. While General Order No. 58 vested the authority in a magistrate, a generic term which includes judges of the Courts of First Instance and justices of the peace; Section 1 of Act No. 194 is less categorical by employing the clause "jurisdiction to hear and determine which is by law now vested in the judges of the Courts of First Instance." The Philippine Bill of 1902 in a similar ambiguous vein contained such authority when it merely provided that the "Supreme Court and the Courts of First Instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by the Government of said Islands, subject to the power of said Government to change the practice and method of procedure. The municipal courts of said Islands shall possess and exercise jurisdiction as heretofore provided by the Philippine Commission, subject in all matters to such alteration

and amendment as maybe hereafter enacted by law; ... " (Sec. 9, emphasis supplied). Act No. 590 of January 9, 1903 further amended Act No. 194 by extending the power to conduct preliminary investigation to the justice of the peace of the provincial capital or of the town wherein the provincial jail is situated of crimes committed anywhere within the province but again utilized the equivocal clause "jurisdiction to hear and determine which is by law now vested in the Court's of First Instance; ... (Sec. 7, Act 590, emphasis supplied). Act No. 1627 of July 1 1907 had the virtue of greater clarity when if authorized expressly every justice of the peace, including the justice of the peace of Manila, to "conduct preliminary investigation of all crimes and offenses alleged to have been comitted within his municipality and cognizable by Court of First Instance, but this shall not exclude the proper judge of the Court of First Instance of a municipal court from or of a municipality in which the provincial jail is located, when directed by an order from the judge of First Instance, shall have jurisdiction to conduct investigation at the expense of the municipality wherein the crime or offense was committed although alleged to have been committed anywhere within the province, to issue orders of arrest, ... (Sec. 37, Act No. 1627, emphasis supplied). The Jones Law of 1916, like the Philippine Bill of 1902, merely provides "that the Supreme Court and the Courts of First Instance of the Philippine Islands shall possess and exercise jurisidiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by law" (Sec. 26, Jones Law). Section 2474 of the Revised Administrative Code of 1917 re-affirms the power of the Court of First Instance of Manila to conduct preliminary examination Sec. 2474. Persons arrested to be promptly brought before a court. Preliminary examination in municipal court and Court of First Instance. Every person arrested shall, without unnecessary delay, be brought before the municipal court, or the Court of First Instance for preliminary hearing, release on bail, or trial. In cases triable in the municipal court the

defendant shall not be entitled as of right to a preliminary examination, except a summary one to enable the court to fix the bail, in any case where the prosecution announces itself and is ready for trial within three days, not including Sundays, after the request for an examination is presented. In cases triable only in the Court of First Instance the defendant shall not be entitled as of right to a preliminary examination in any case where the fiscal of the city, after a due investigating of the facts, shall have presented an information against him in proper form. But the Court of Firs Instance may make such summary investigation into the case as it may necessary to enable it to fix the bail or to determine whether the offense is bailable. (emphasis supplied). It is clear that both the Manila Court of First Instance and municipal court can conduct a preliminary hearing or examination. Section 2474 aforequoted, adds, however, that the City Fiscal impliedly may conduct such preliminary examination; because it provides that in "cases triable only in the Court of First Instance the defendant shall not be entitled as of right to a preliminary examination in any case where the fiscal of the city, after a due investigation of the facts, shall have presented an information against him in proper form. It will be noted, however, that it is only after the City Fiscal has conducted a preliminary examination that the accused ceases to "be entitled as of right" to a preliminary examination by the Judge of the Court of Firs Instance who, however, retains inferentially the discretion to conduct another preliminary investigation because the Court of First Instance Judge is not foreclosed by the preliminary examination conducted by the City Fiscal. But, when the City Fiscal has not conducted any preliminary examination, the Court of First Instance Judge himself certainly can proceed with such preliminary examination, which the defendant can demand as a matter of right. Act No. 3042 of March 10, 1922, while amending Section 13 of General Order No. 58, re-states the power of the magistrate to conduct the preliminary examination for the issuance of the warrant of arrest.

Act No. 4178 of December 5, 1934 further amended Section 13 of General Order No. 58 but still retained the authority of the magistrate to conduct the preliminary examination. As herefofore stated, Sections 13 and 14 of General Order No. 58, as amended, were applied by the Supreme Court in Marcos, et al. versus Cruz (68 Phil. 96, 106-107). Under the jurisprudence then or prior to the 1935 Constitution, the preliminary investigation before the justice of the peace or muncipal court consisted of two stages, namely, preliminary examination for the issuance of the warrant of arrest where only the complainant and his witnesses are heard by the justice of the peace; and the second stage where the accused and his witnesses are heard. The Judge of the Court of First Instance conducts only the first stage, that is, preliminary examination for purposes of the issuance of the warrant of arrest, to be followed by the actual trial (Marcos, vs. Cruz, supra; People vs. Moreno, 77 Phil. 548, 555 [1946]). The basic source of the power of the Courts of First Instance to conduct preliminary examination or investigation from May 14, 1935 to January 17, 1973, is paragraph 3 of Section 1 of Article III of the 1935 Constitution, which guarantees "the right of the people to be secure in their persons ... against unreasonable ... seizures ... and no warrants shall issue but upon probable cause, to be determined by the judge after an examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing ... the persons ... to be seized." Construing the foregoing constitutional right against unreasonable searches and seizures, the Supreme Court, through then Chief Justice Ricardo Paras, pronounced that the determination of the existence of "probable cause must depend upon the judgment and discretion of the judge ... issuing the warrant. ... His conclusion as to whether "probable cause" existed or not is final and conclusive. If he is satisfied that "probable cause" exists from the facts stated in the complaint, made upon the investigation by the prosecuting attorney, then his conclusion is sufficient upon which to issue a warrant of arrest. He may, however, if he is not satisfied, call such witnesses as he may deem necessary before issuing the warrant. ... There is no law which prohibits him from reaching the conclusion that "probable cause" exists from the statement of the prosecuting attorney alone, or any other person whose statement or affidavit is entitled to credit in the opinion of the judge ... The preliminary investigation conducted by the petitioner (Provincial Fiscal) under Republic Act No. 732 ... does not, as

correctly contended by the respondent Judge, dispense with the latter's duty to exercise his judicial power of determining, before issuing the corresponding warrant of arrest, whether or not probable cause exists therefor. The Constitution vests such power in the respondent judge who, however, may rely on the facts stated in the prosecuting attorney" (Amarga vs. Abbas, March 28, 195l, 98 Phil. 739, 741-742). While the power to conduct preliminary examination may be delegated by law to government prosecutors, only the judge can issue the warrant of arrest under the 1935 Constitution and prior thereto (Sayo, et al. vs. Chief of Police, et al. 80 Phil. 859; Lino vs. Fugoso, 77 Phil. 933; Hashim vs. Boncan, 71 Phil. 216). The valid seizure of a person can only be executed through a lawful warrant of arrest. Arrest without a warrant can only be legally effected by a police officer or private individual a) when the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; b) when an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it; and c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another (Sec. 6, Rule 113, 1964 Revised Rules of Court). In all other cases, there must be a valid warrant of arrest. When the seizure of a person is made without a warrant of arrest or with a warrant of arrest which is not based on a determination by the judge of the existence of probable cause, the arrest becomes unreasonable and therefore unconstitutional. Sections 2 and 4 of Rule 108 of the 1940 Rules of Court expressly confer on the municipal or city judge, the City Final and the Judge of the Court of First Instance the power to conduct preliminary examination or investigation. On June 20, 1957, Republic Act No. 1700, otherwise known as the AntiSubversion Law, was approved. The proviso of Section 5 thereof expressly provides that the preliminary investigation of offenses defined and penalized therein by prision mayor to death shall be conducted by the proper Court of

First Instance. This grant obviously is exclusive of the provincial or city fiscal or other government prosecutors whose power to conduct preliminary investigation in all other cases is affirmed in the first clause of Section 5 thereof. Sections 13 and 14 of the 196.4 Revised Rules of Court re-state Sections 2 and 4 of Rule 108 of the 1940 Rules of Court. As aforestated, aside from the challenged Sections 3 and 6 of Republic Act No. 5179 creating the Circuit Criminal Courts, Republic Act 5180 was approved on September 8, 1967, which affirms the prerogative of the Courts of First Instance to conduct preliminary investigation of offenses punishable by said courts. Presidential Decrees Nos. 77 and 911 promulgated respectively on December 6, 1972 and March 23, 1976. amending Republic Act No. 5180, did not modify the opening clause of Section 1 of said Republic Act 5180 affirming the power of the Court of First Instance to conduct preliminary investigation in accordance with law and the Rules of Court. Section 234 of the 1971 Revised Election Code, otherwise known as Republic Act No. 6388, vests in the Court of First Instance "exclusive original jurisdiction to make preliminary investigations, issue warrants of arrest and try and decide any criminal case or proceeding for violation of" the Election Law. This provision was a reiteration of the previous election laws (Act No. 1582 of 1907; Com. Act No. 357 of 1938; and Republic Act No. 180 of 1947, as amended). After the ratification of the 1973 Constitution on January 17, 1973, the source of the authority of the judge to conduct preliminary examination for purposes of issuing a warrant of arrest, is still the Constitution, this time the 1973 Constitution, which likewise guarantees "the right of the people to be secure in their persons ... against unreasonable ... seizures for whatever nature and for any purpose ... 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 persons ... to be seized" (Sec. 3 of Art. IV, 1973 Constitution). The 1973 Constitution, instead of employing the generic term

warrants to comprehend both search warrants and warrants of arrest, as did the 1935 Constitution, expressly specifies "search warrants or warrants of arrest." The purpose of such specification was apparently to clarify the doubt raised by the dissenting opinion of Mr. Justice Montemayor in the Amarrga case, supra, that the 1935 Constitution merely guarantees against unreasonable searches but not against unreasonable arrests, despite the fact that the constitutional guarantee expressly affirms "the right of the people to be secure in their persons ... against unreasonable ... seizures ... and no warrant shall issue but upon probable cause, to be determined by the persons ... to be seized" (Par. 3, See. 1, Art. III, 1935 Constitution). In passing, the dissent of Justice Montemayor in the Amarga case seems to deny equal, if not greater, importance to individual freedom from illegal arrest or arbitrary detention vis-a-vis property rights and right against selfincrimination. It will also likewise be noted that the 1973 Constitution also authorizes the law-making authority to empower other responsible officers to conduct such preliminary examination for purposes of the issuance of a warrant of arrest. As enunciated in the Amarga case and in U.S. versus Ocampo (18 Phil. 1, 41-42), the government prosecutors may be authorized to conduct such preliminary examination and their determination of the existence of probable cause may be relied upon by the , 23 SCRA judge, who may, as a consequence, issue the warrant of arrest; although the judge himself is not precluded from conducting his own preliminary examination despite the conclusion of the prosecuting attorney as to the existence or non-existence of probable cause. III 1. The challenged order of July 6, 1971 issued by the respondent Judge in G.R. No. L-34038 (Collector of Customs, etc. vs. Hon. Onofre Villaluz, et al.) dismissed the criminal complaint filed by petitioners therein against private respondent with prejudice, obviously meaning that the case may not be refiled without exposing the accused to double jeopardy. The respondent Judge seriously erred in so issuing said order, contravening as it does a basic legal principle on double jeopardy, and committing thereby a grave abuse of discretion. The constitutional right against double jeopardy exists, not after the first preliminary examination or investigation, but only after the first trial which results either in conviction or acquittal or in the dismissal or termination of the

case without the express consent of the accused by a court of competent jurisdiction upon a valid complaint or information and after the accused had pleaded to the charge (Sec. 9, Rule 117, Revised Rules of Court; Taladua vs. Ochotorena, et al. L-25595, February 15, 1974; Republic vs. Agoncillo, L27257, August 31, 1971, 40 SCRA 579; People vs. Obsania, L-24447, June 29, 1968, 23 SCRA 1249; People vs. Ylagan, 58 Phil. 851). As correctly stated by the Solicitor General, petitioner's counsel, "dismissal at preliminary investigation is never with prejudice. Re-filing of the same is allowed if evidence has become sufficient to warrant conviction of private respondent." There has been no deviation from such established jurisprudence exemplified in People vs. Bagsican (6 SCRA 400), Wherein the Court held that "the finding in the preliminary investigation that no prima facie case existed against the accused does not bar subsequent prosecution and conviction. Such finding is not final acquittal as would preclude further proceedings" (Emphasis supplied). 2. Aggravating his grave mistake and misapprehension of the law, respondent Judge also directed through the same order the return of the articles allegedly seized from the person of respondent Makapugay. This portion of the question order is fraught with undesirable consequences. As stated heretofore, the dismissal of a case, even with prejudice, during the stage of preliminary investigation does not bar subsequent prosecution and conviction if the evidence warrants the re-filing of the same becomes next to impossible. For the enforcement of such order would virtually deprive herein petitioner Collector of Customs of the evidence indispensable to a successful prosecution of the case against the private respondent. Worse, the order nullified the power of seizure of the customs official. Respondent Judge ignored the established principle that from the moment imported goods are actually in the possession or control of the Customs authorities, even if no warrant of seizure had previously been issued by the Collector of Customs in connection with seizure and forfeiture proceedings, the Bureau of Customs acquires exclusive jurisdiction over such imported goods for the purpose of enforcing the Customs laws, subject to an appeal only to the Court of Tax Appeals and to final review by the Supreme Court (Section 2205 and 2303, Tariff and Customs Code; Papa, et al. vs. Mago, et al., Feb. 28,

1968, 22 SCRA 857; Virata, et al. vs. Aquino, et al. Sept 30, 1973, 53 SCRA, 24; see also Vierneza vs. Commissioner, July 30, 1968, 24 SCRA 394; Farm Implement & Machinery vs. Commissioner, August 30, 1968, 24 SCRA 905; Lazatin vs. Commissioner, et al., July 30, 1969, SCRA 1016; Asaali, et al. vs. Commissioner, December 16, 1968, 26 SCRA 382; Sare Enterprises vs. Commissioner, Aug. 28, 1969, 29 SCRA 112; Geotina, etc. vs. Court of Tax Appeals, et al., August 30, 1971, 40 SCRA 362; Commissioner vs. Court of Tax Appeals, et al., January 31, 1972; Lopez vs. Commissioner, et al., January 30, 1971, 37 SCRA 327; Geotina vs. Broadway, etc., et al., January 30, 1971, 37, SCRA 410; Auyong Hian vs. Court of Tax Appeals, et al., September 12, 1974, 59 SCRA 110; and Pacis, et al., vs. Pamaran, etc., et al., March 15, 1974, 56 SCRA 16). Such exclusive jurisdiction precludes the Court of First Instance as well as the Circuit Criminal Court from assuming cognizance of the subject matter (Enrile, et al. vs. Venuya, et al., January 30, 1971, 37 SCRA 381) and divests such courts of the prerogative to replevin properties subject to seizure and forfeiture proceedings for violation of the Tariff and Customs Code (Diosamito, et al. vs. Balanque, et al., July 28, 1969, 28 SCRA 836; Seares vs. Frias, June 10, 1971, 39 SCRA 533); because proceedings for the forfeiture of goods illegally imported are not criminal in nature since they do not result in the conviction of wrongdoer nor in the imposition upon him of a penalty (Lazatin vs. Commissioner, et al., July 30, 1969, 28 SCRA 1016). Respondent Judge claims that the pendency of a seizure proceeding was never brought to his attention (p. 038, rec.) and that he could not have foreseen the possibility that petitioner would be instituting seizure proceedings ... and besides, it is understood that the order of the court commanding the release of the subject articles was on a premise that herein petitioner was not holding or withholding the same for some other lawful reason (p.39, rec.). The questioned order of respondent Judge is unqualified and contains no intimation that the "release ... was on a premise that herein petitioner was not holding or withholding the same for some other lawful reason." On the contrary, the tenor of the order is so absolute and so emphatic that it really leaves no alternative for petitioner Collector of Customs except to return the articles.

The records of the case, moreover, reveal that a report of seizure (p. 14, rec.) and warrant of seizure and detention (p. 15, rec.) were made by petitioner Collector of Customs on June 30, 1971 and on July 9, 1971 respectively. It is patent that respondent Judge knew actually of the existence at least of the report of seizure of June 30, 1971, which is six days prior to his order of dismissal dated July 6, 1971. He should have anticipated that a warrant of seizure and detention will logically be issued as in fact it was issued on July 9, 1971, because it was the petitioner Collector of Customs who filed the criminal complaint directly with him on July 1, 1971. Respondent Judge chose to ignore the presence of the report of seizure dated June 30, 1971, six days before his order of dismissal and the filing of the criminal complaint on July 1, 1971. Prudence should have counselled him, so as not to frustrate the petitioner Collector of Customs in enforcing the tariff and customs laws, against ordering the release of the seized articles without first ascertaining from the petitioner Collector of Customs whether the latter intended to institute or had instituted seizure proceedings. As aptly expressed by Mr. Justice Barredo in his Concurring Opinion in People vs. Gutierrez, supra, "It is not enough that a judge trusts himself or can be trusted as capable of acting in good faith, it is equally important that no circumstance attendant to the proceedings should mar that quality of trust worthiness." We have enjoined judges to apply the law as interpreted by the Supreme Court and not to dispose of a case according to their personal views (Albert vs. Court of First Instance, 23 SCRA 948). IV In G.R. No. L-36376 (Enriquez, et al. vs. Hon. Onofre Villaluz, et al.), the arbitrary denials displayed by respondent Judge of motions presented before him likewise invite some cautionary reminders from this Court. In this case, petitioners were given an unreasonable period of one (1) day within which to elevate the matter before this Tribunal. But considering the novelty of the issue, a grant of twenty-four hours to prepare a petition for certiorari is a virtual denial of the motion. And petitioners' motion for an extension of at least one (1) day was peremptorily brushed aside by respondent Judge with one single word DENIED.

The fact that petitioners succeeded in bringing the matter before the Supreme Court within the constricted period of time granted them is beside the point. More important is the consideration by this Court of the dangers posed by respondent Judge's peremptory denial of a reasonable time. Indeed, it is commendable to see judges hasten the disposition of cases pending before them. But more commendable would be for judges to contribute their share in maintaining the unswerving faith of litigants in the courts of justice. WE once again stress that "One important judicial norm is that a judge's official conduct should be free from appearance of impropriety" (Luque vs. Kayanan, 29 SCRA 165). V But while w sustain the power of the Circuit Criminal to conduct preliminary examination (p. 36), pursuant to OUR constitutional power of administrative supervision over all courts (Sec. 6, Art. X, 1973 Constitution) as a matter of policy, WE enjoin the respondent Judge and other Circuit Criminal Court Judges to concentrate on hearing and deciding criminal cases filed before their courts (see Mateo vs. Villaluz, 50 SCRA 18, 28-29, March 31, 1973). The primary purpose of the creation of the Circuit Criminal Courts in addition to the existing Courts of First Instance, as above intimated, is to mitigate the case load of the Courts of First Instance as well as to expedite the disposition of criminal cases involving serious offenses specified in Section I of Republic Act 5179, as amended. Circuit Criminal Judges therefore, should not encumber themselves with the preliminary examination and investigation of criminal complaints, which they should refer to the municipal judge or provincial or city fiscal, who in turn can utilize the assistance of the state prosecutor to conduct such preliminary examination and investigation. Or the Judge of the Circuit Criminal Court can directly request the Secretary of Justice to assign a state prosecutor for the same purpose (See. 3, Republic Act No. 5184). Moreover, it seems that respondent Judge does not have adequate time to hear and dispose of the 34 criminal cases with detention prisoners pending in his sala, aside from the 479 pending cases of voluntary submission by drug addicts, as of January 31, 1975 (A.M. No. 230-CCC, Item 42, Agenda of March 13, 1975), as revealed by his letter dated February 26, 1975, wherein he requested the Supreme Court to renew the detail in his sala of Municipal

Judge Hermenegildo C. Cruz of Mandaluyong, Rizal, to assist him. This significant fact should further dissuade him from actively conducting the preliminary investigation of criminal cases directly filed with him. Furthermore, Judges of the Circuit Criminal Courts whose dockets permit, may be assigned by the Supreme Court for a period not exceeding 6 months, unless with their consent, to assist Judges of regular Courts of First Instance with clogged dockets (Sec. 5[3], Art. X, 1973 Constitution). WHEREFORE, IN G.R. NOS. L-34243, 36376, 38688 AND 39525, THE PETITIONS ARE HEREBY DISMISSED AND THE WRITS OF PRELIMINARY INJUNCTION AND/OR RESTRAINING ORDERS ISSUED THEREIN ARE HEREBY LIFTED; IN G.R. No. L-40031, THE PETITION IS HEREBY DISMISSED; AND IN G.R. NO. L-34038, THE ORDER OF RESPONDENT JUDGE DATED JULY 6, 1971 IS HEREBY SET ASIDE AS NULL AND VOID INSOFAR AS THE SAME DISMISSED THE CRIMINAL CASE WITH PREJUDICE AND INSOFAR AS THE SAME DIRECTED THE RETURN TO PRIVATE RESPONDENT THEREIN OF THE ARTICLES SEIZED FROM HIM WHICH ARE NOW SUBJECT OF SEIZURE PROCEEDINGS BEFORE THE CUSTOMS AUTHORITIES, AND THE WRIT OF PRELIMINARY INJUNCTION ISSUED THEREIN IS HEREBY MADE PERMANENT. NO COSTS. Castro, C.J., Teehankee, Antonio, Esguerra, Muoz Palma, Aquino and Martin, JJ., concur. Concepcion, Jr., J., is on leave.

Separate Opinions

FERNANDO, J., concurring

The opinion of the Court, both thorough and comprehensive, penned by Justice Makasiar, is impressive for its analytical skill and scholarly attributes. On the whole then, especially so where reference is made to our previous decisions, there is no impediment to full concurrence. This is particularly true where it concerns the ruling announced by this Court, i.e., "that both Section 1(3), Article Ill of the 1935 Constitution and Section 3, Article IV of the 1973 Constitution provide the source of the power of all Judges, including Judges of the Court of First Instance, the Circuit Criminal Courts, and other courts of equivalent rank, to conduct the examination to determine probable cause before the issuance of the warrant of arrest and therefore sustain the proceedings conducted by respondent Judge leading to the issuance of the warrants of arrest and his referral of the cases to the fiscal or other government prosecutor for the filing of the corresponding information." 1 At that, there is still need, it seems to me, for a few words not only to set forth the extent of my agreement with my brethren but also to indicate what for me are the precise limits of our holding. The full and exhaustive treatment of the specific issue dealing with the power of the circuit criminal courts to conduct preliminary examination, with historical and textual allusions to the previous judicial pronouncements and comparable statutory provisions, certainly a virtue to be commended, may for those not sufficiently discerning, yield implications which, for me, go further than is intended by us. It is my understanding then that the decision reached is at most an affirmation that the present Constitution, as did the 1935 Constitution, confers the power to conduct preliminary examination preparatory to issuing a warrant of arrest, to a circuit criminal court judge. Even then, however, he should for sound policy reasons curb any eagerness . s or propensity to make use of such competence. 1. To repeat, it is solely the first stage in the criminal process that may lead to the apprehension of the accused that has been passed upon by this Court. It has not considered the second stage, that of preliminary investigation proper, one of equal significance. As far back as 1910, its importance was stressed in United States v. Grant and Kennedy. 2 Thus: "The object or purpose of a preliminary investigation, or a previous inquiry of some kind, before an accused person is placed upon trial, is to secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect him 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." 3 It is of the essence then that the accused should be heard. There are overtones in

the opinion of the Court susceptible to being misinterpreted in this regard, if it be assumed that upon the termination of the preliminary examination the arraignment and trial could then proceed. I would dissociate myself from such a view. I am gratified therefore that it is made explicit therein that our ruling is limited to the power of a judge under the Circuit Criminal Court Act 4 to conduct a preliminary examination. As to his competence regarding a preliminary investigation, it is my understanding that the question has been left open. 2. Respondent Judge was likewise admonished "to concentrate on hearing and deciding criminal cases filed before their courts (see Mateo v. Villaluz, 50 SCRA 18, 28-29, March 31, 1973." 5 That is as it should be. It is well that it is so. The occasion for its exercise should be minimized. That is the teaching of Mateo v. Villaluz, the same respondent Judge in these petitions. The facts could be differentiated, but the principle announced holds true. The load to be shouldered by a trial judge is heavy enough for him to attend to matters which could be looked after by municipal judges. So this excerpt from Mateo would indicate: "To avoid any further controversies of this nature, lower court judges are well-advised to limit themselves to the task of adjudication and to leave to others the role of notarizing declarations. The less an occupant of the bench fritters away his time and energy in tasks [that could be left to other hands], the. less the danger of his being a participant in any event that might lend itself to the interpretation that his impartiality has been compromised. There is much to be said for displaying zeal and eagerness in stamping out criminality, but that role is hardly fit for a judge who must bide his time until the case is before him. He must ever he on guard lest what' s done by him, even from the best of motives, may be thought of as eroding that objectivity and sobriety which are the hallmarks of judicial conduct. Thus should he attend to the performance of the sacred trust that is his." 6 For me, the fact that a judge had listened to testimony damaging to a prospective accused, without his being given the opportunity to refute the same, may lead to a subsconcious prejudice difficult to erase at the stage of trial. BARREDO, J, concurring: I concur in the result of the judgment in these cases, for although the main opinion sustains the authority of Circuit Criminal Courts to conduct preliminary investigations, it strictly ordains, however, that "as a matter of policy (sic) We enjoin the respondent Judge and other Circuit Criminal Court Judges to

concentrate on hearing and deciding criminal cases filed before their courts." With such an imperious mandate, I am satisfied that Circuit Criminal Courts will not anymore do what I am fully convinced they are not legally permitted to do. I and certain no Criminal Court Judge will dare deviate from the policy announced in the main opinion, which, of course, I say is the policy of Republic Act 5179 itself. Indeed, my uncompromising position is that it is the policy of the law itself, rather than that of this Court alone as the main opinion would seem to imply, that Circuit Criminal Courts should strictly confine themselves to merely trying and deciding the cases assigned to them, and I have always insisted that it should be on the basis of that very policy of the law itself informed in public interest that this Court should construe the statutory provision here in issue, Section 1 of Republic Act 5179 which provides as follows: In each of the sixteen judicial districts for the Court of First Instance as presently constituted, there is hereby created a Circuit Criminal Court with limited jurisdiction, concurrent with the regular Court of First Instance, to try and decide the following criminal cases falling under the original and exclusive jurisdiction of the latter: a. Crimes committed by public officers, crimes against persons and crimes against property as defined and penalized under the Revised Penal Code, whether simple or complexed with other crimes; b. Violations of Republic Act No. 3019, otherwise known as the Anti Graft and Corrupt Practices Act, ... c. Violations of Section 3601, 3602 and 3604 of the Tariff and Customs Code and Sections 174, 175 and 345 of the National Internal Revenue Code.

Thus, the judgment of the Court in these cases will after all effectively effectuate what I maintain is the spirit of the Act, notwithstanding the considerations predicating the main opinion which, with due respect to my learned brethren in majority, I find it impossible to agree with. And so, I can give my assent to the judgment in these cases without my having to sacrifice my conviction herein involved, which I am explaining in this separate opinion. Frankly, I will never be able to comprehend why the majority can give the above provision a construction contrary to what plainly appears to be policy that underlies it, only for them to just the same "enjoin" all Circuit Criminal Courts "as matter of policy" (of the Court) that they should not conduct preliminary investigations, which I say the statute, as matter of policy, never intended to allow them to do anyway. Not withstanding the scholarly and extended main opinion, I am not persuaded that the legislature ever intended to confer upon Circuit Criminal Courts the power to conduct preliminary investigations. Not only the specific words of the above provision, but the development of the law on preliminary investigations and the circumstances obtaining at the time Republic Act 5179 was enacted point unmistakably, in my considered opinion, to this conclusion. There are already two earlier cases in which this Court had to dwell on the extent of the jurisdiction of the circuit criminal courts. In both of them, the approach was restrictive. Way back in 1968, in the case of People vs. Paderna, 22 SCRA 273, the Court was confronted with the question of whether or not the mere fact that under Section 1 (c) of Republic Act 5179, the organic act of the circuit criminal courts, mentions violations of Section 174 of the National Internal Revenue Code to be among the cases under the jurisdiction of said courts, is enough justification for disregarding the penalty provided in the Revenue Code of fine of not less than P50 nor more than P200 and imprisonment of not less than 5 nor more than 30 days when the value of the cigarettes involved does not exceed P500, which ordinarily would make such violation fall within the original jurisdiction of the City Court of La Carlota City and considering such violations to be within the jurisdiction of the corresponding Circuit Criminal Court. The Court, thru Justice Fred Ruiz Castro, resolved the problem this wise: The jurisdiction of the circuit criminal courts is thus dependent. not only on the type of cases but also on

the penalties provided for those cases. Inasmuch as the case at bar falls within the exclusive and 'original jurisdiction of the city court, it cannot, even if it involves a violation of section 174 of the Tax Code, be taken cognizance of by the circuit criminal courts the jurisdiction of which is concurrent with that of courts of first instance in criminal cases where the latter's jurisdiction is original and exclusive (Atp 279.) Almost four years later, in Paraguya vs. Tiro, 41 SCRA 137, the issue was whether or not a case of indirect bribery, a crime committed by a public officer included in Section 1(a) of the Act, but punishable under Article 211 of the Revised Penal Code with arresto mayor, suspension and public censure, penalties which are imposable by the city of municipal courts concurrently with the courts of first instance, may be considered as within the jurisdiction of the, Circuit Criminal Courts. We held that the fact alone that the crime involved was one committed by a public officer did not suffice to place the case within the jurisdiction of said courts. Reiterating the predicate of adherence to the letter of the statute adopted in Parenda supra, Justice J.B.L. Reyes, emphasized the reason therefor thus: In fact, the intention of the legislature to bestow unto these special criminal courts limited jurisdiction is clear not only from the provision of the law itself; it was so stated that this limited jurisdiction of the circuit courts would enable them to act with dispatch on the cases cognizable by said tribunals. And, this is precisely the purpose for which the circuit criminal courts were createdto contribute to the speedy resolution of criminal and help curd the progression of criminality in the country (Explanatory Note to Senate Bill No. 388, which became Republic Act No. 5179) (At 142.) In the cases at bar, it is admitted in the main opinion that because "the primary purpose of the creation of the Circuit Criminal Courts in addition to the existing Courts of First instance, as above intimated, is to expedite the disposition of criminal cases involving serious offenses specified in Section 1 of Republic Act

5179, ... Circuit Criminal Judges, therefore, should not encumber themselves with attending to the preliminary examination and investigation of criminal complaints, which they should refer to the Provincial or City Fiscals, who, in turn can utilize the assistance of the state prosecutor for the same purpose." What is more, as if to predicate such observations on actuality and project them in the context of what is happening in the very court of respondent judge, the main opinion invites attention to the number of pending cases and matters therein which compelled respondent judge, according to the opinion, to seek from this Court the detail of a municipal judge to assist him. It further points out that under Section 5(3) Article X of the Constitution, Criminal Court Judges may be temporarily assigned by the Supreme Court to other stations, provided that, without the consent of the judges concerned, such assignment may not last longer than six months. 1 And to these very apt observations, it may be added that unlike in the regular courts of first instance, in circuit criminal courts "the trial of cases ... once commenced, shall be continuous until terminated and the judgment shall be rendered within thirty days from the time the case is submitted for decision. (Sec- 6, R.A. 5179). To my mind, all these considerations were precisely what the Congress had in mind when it enacted the law creating the circuit criminal courts. As may be seen, all of these considerations point to the necessity of freeing the said courts from all functions other than "to try and decide" the cases enumerated in the Act. It is inconceivable that with said considerations in view, Congress could have meant by omitting mention of preliminary investigations in the statute that it should nevertheless be construed in the sense of encumbering to borrow the language of the main opinion, the circuit criminal courts with the burden of "attending to preliminary examination and investigation of criminal complaints", which the main opinion emphasizes and the legislature must be presumed to have known can be better performed by the multitudinous other offices in the prosecution staff of the government already referred to above. It is important to note that the conferment in the Judiciary Act of jurisdiction upon the regular courts of first instance is worded thus: SEC. 44. Original jurisdiction. Courts of First Instance shall have original jurisdiction.

(a) In all civil actions in which the subject of the litigation is not capable of pecuniary estimation; (b) In all civil actions which involve the title to or possession of real property, or any interest therein, or the legality of any tax, impost or assessment, except actions of forcible entry into and detainer on lands or buildings, original jurisdiction of which is conferred by this Act upon city and municipal courts; (c) In all cases in which the demand, exclusive of interest, or the value of property in controversy, amounts to more than ten thousand pesos; (RA Nos. 2613 & 3828.) (d) In all actions in admiralty and maritime jurisdiction, irrespective of the value of the property in controversy or the amount of the demand; (e) In all matters of probate, both of testate and intestate estates, appointment of guardians, (See also Section 90, and note thereof trustees and receivers, and in all actions for annulment of marriage, and in all such special cases and proceedings as are not otherwise provided for; (f) In all criminal cases in which the penalty provided by law is imprisonment for more than six months, or a fine of more than two hundred pesos; (g) Over all crimes and offenses committed on the high seas or beyond the jurisdiction of any country, or within any of the navigable waters of the Philippines, on board a ship or watercraft of any kind registered or licensed in the Philippines in accordance with the laws thereof. The jurisdiction herein conferred may be exercised by the Court of First Instance in any

province into which the ship or watercraft upon which the crime or offense was committed shall come after the commission thereof: Provided, That the court first lawfully taking cognizance thereof shall have jurisdiction of the same to the exclusion of all other courts in the Philippines, and (h) Said court and their judges, or any of them, shall have the power to issue writ of injunction, mandamus, certiorari, prohibition, quo warranto and habeas corpus in their respective provinces and districts, in the manner provided in the Rules of Court. Significantly, unlike Section 1 of Republic Act 5179, this provision does not say that the Courts of First Instance shall "try and decide" the cases therein enumerated. Rather, it simply says they shall have original jurisdiction "in" and "over" the respective cases mentioned. In other words, Section 1 of Republic Act 5179 does not grant the circuit criminal courts jurisdiction "in" or "over" the cases listed, but, as may be plainly seen in the above- quoted tenor of its pertinent provision, only "the limited jurisdiction . . . to try and decide" them. To my mind, this difference in phraseology must have been intentional in order to emphasize the restricted and limited prerogatives of Circuit Criminal Courts, not only as to the nature of the cases that can be filed with them but also as to the extent of their functions and powers relative to said cases. I maintain that consonant with the need to make of the Circuit Criminal Courts the courts of special and limited jurisdiction designed to attend with utmost expeditiousness to the cases assigned to them, as undoubtedly the law intends them to be, Section 1 of the Act should be construed, even in case of doubt in the sense not only that the jurisdiction of said courts is limited to the cases which they may take cognizance of, but also in that any other work not strictly part of the functions to "try and decide" said cases, is not contemplated to be performed by them. It is a familiar rule that the jurisdiction of a court, may not be deemed granted by mere implication, unless perhaps in instances when this is indubitably clear. Whenever there is reason to doubt, as in the case before Us, precisely because of the considerations expounded in the main opinion as to why, as a

matter of this Court's policy, at least, the circuit criminal courts should refrain from holding preliminary investigations, the rule, as I know it, is to deny the existence of power. In this connection, it should he borne in mind that the power to conduct preliminary investigations has never been deemed as a mere incidental prerogative of any court. It exist only when duly granted. It should be noted from the provisions of Section 44 of the Judiciary Act aforequoted that even the authority of the regular courts of first instance to grant writs of injuction, mandamus certiorari, prohibition, quo warranto and habeas corpus, which by their nature could reasonably be deemed inferable from the grant of general jurisdiction, had still to be granted expressly to said courts, and only within their respective provinces and districts. And this Court has been very restrictive in construing this particular grant of jurisdiction. (See Director of forestry vs. Ruiz, L-24882, April 30,1971, 38 SCRA 559, and cases therein cited.) To repeat, such authority would seem to be implicit from the grant of general jurisdiction, and yet We always insist that it should be specifically conferred. Now, is there anything in the conduct of preliminary investigations that makes it more inherent or inseparable from the expressed power "to try and decide" that necessarily, We must consider the same as included in said power or as something that must indispensably be added thereto, such that the authority therefor need not be spelled out in black and white? Withal, if in the case of inferior courts, which everyone knows have always conducted preliminary investigations since the enactment of Act 194 in 1901, the Judiciary Act had to expressly provide for the grant of such authority to them, what special reason is there why the conferment upon circuit criminal courts of the faculty to "try and decide" certain types of criminal cases should be deemed as necessarily including the authority to conduct preliminary investigations related thereto, when according to what the main opinion emphasizes, such function can be better performed by the prosecution staff of the government? The main opinion holds that it "is plain and evident from Sections 3 and 6 of their organic act, Republic Act 5179" that circuit criminal courts "have the same powers and functions as those conferred upon regular Courts of First Instance necessary to effectively exercise (their) special and limited jurisdiction." But I am afraid this reasoning ignores that "the powers and functions (of) the regular Courts of First Instance" conferred upon the circuit criminal courts are only those "necessary (for them) to effectively exercise (their) special and limited

jurisdiction", and the issue precisely is what is the extent of that special and limited jurisdiction. As I have already pointed out, that "special and limited jurisdiction" is "to try and decide" the cases enumerated, and this power does not have to be accompanied, whether by logical implication or by the reasons behind the organization of the courts, by the authority to conduct preliminary investigations. I dare say, in connection with the provisions of Section 3 of the Act, that the provisions of laws and Rules of Court, if any, granting jurisdiction to regular courts of first instance to conduct preliminary investigations are inconsistent with the provisions of the Act, considering that these latter provisions contemplate circuit criminal courts which should not undertake the functions of conducting preliminary investigations, as found factually by the main opinion, albeit surprisingly the majority would give weight to such factual finding only to serve as basis for a policy only of the Court, instead of utilizing the same as premise for the proper construction of the Act in order that such policy may be legally effectuated, since it is indeed the policy underlying the law itself. And besides, a careful reading of Section 3 should make it clear to everyone that its phraseology studiously refers not to all the powers of the judges of the Courts of First Instance, but only to "the provisions of the laws and the Rules of Court relative to the Judges of the Courts of First Instance", meaning their qualifications, salaries, transfer etc. and to their powers and prerogatives in "the trial, and disposition and appeal of criminal cases" in the circuit criminal courts, which is plainly consistent with the scope of the power granted to them under Section 1 "to try and decide." The main opinion quotes from my concurring opinion in People vs. Gutierrez, 36 SCRA 172, apparently to show that in my view, "circuit criminal courts are nothing but additional branches of the regular Courts of First Instance in their respective districts". But the portion quoted from my opinion is not complete. What I said was this: I take it that under Republic Act 5179, Circuit Criminal Courts are nothing but additional branches of the regular Courts of First Instance in their respective districts with the limited concurrent jurisdiction to take cognizance of, try and decide only those cases (enumerated in Section I of the Act. This is readily implied from Section 3 of the Act which says:

SEC. 3. The provisions of all laws and the Rules of Court relative to the judges of the Courts of First Instance and the trial, disposition and appeal of criminal cases therein shall be applicable to the circuit judge and the cases cognizable by them insofar as they are not inconsistent with the provisions of this Act. xxx xxx xxx In other words, I adhered closely to the language of the statute and referred to the jurisdiction of the criminal courts as comprising of the power "to take cognizance of, try and decide" only the cases therein enumerated. I did not concede that the authority was broadly "over" those cases, as in Section 44 of Judiciary. Act, but strictly "to take cognizance of, try and decide" them. There is another point which is more transcendental. The main opinion assumes the correctness of the generally prevailing impression that courts of first instance continue to possess the jurisdiction to conduct preliminary investigations. It cites the Rules of Court as the source of such authority. For my part, I am not sure, to put it mildly, that the Supreme Court can arrogate jurisdiction unto itself or grant any to the lower courts by merely promulgating a rule to such effect. I believe it is safer to hold that jurisdiction to act on any given matter may be granted only by statute or legislative enactment, for the simple reason that jurisdiction is substantive and not adjective in nature. And so, the question in my mind is simply this, assuming arguendo that circuit criminal courts have all the powers of the regular courts of first instance, which I dispute, is it clear that the latter courts continued to possess, after the Judiciary Act of 1948 went into effect, the power to conduct preliminary investigations? In other words, are the provisions of the Rules of Court invoked in the main opinion, Section 13 of Rule 112, predicated on any law or statute? According to former Chief Justice Moran, this section was "taken, with amendments, from Section 4 of former Rule 108, which was a substantial restatement of the ruling of the Supreme Court in one case", citing People vs. Solon, supra. (See 4 Moran, Rules of Court, p. 117, 1970 ed.) But Sec. 4 of

Rule 108 was part of the Rules of Court of 1940, when Act 1627 was still in force. Apparently, when Rule 108 was revised in the 1964 Rules, it was overlooked that under Section 99 of the Judiciary Act, "all laws and rules inconsistent with the provisions of this Act" was repealed thereby wiping away Section 37 of Act 1627. No matter how many times one may read the provisions of the whole Judiciary Act of 1948 anti particularly those that refer to the jurisdiction of the Courts of First Instance, one will never find any word therein that directly or indirectly confers upon said courts the authority to conduct preliminary investigations. In pointing out this patent omission, I am of course assuming that the jurisdiction to conduct preliminary investigations, while sometimes given to courts in spite of its being basically an executive function per Orendain, 2 is not inherent in every court. For instance, in the Judiciary Act itself. It can be clearly seen that as in the case of Act 194, seventy-five years ago, by Section 87 of the Act, the legislature had to expressly vest upon inferior courts the power to conduct such preliminary investigations. Thus, Section 87 provides in unmistakable terms: xxx xxx xxx Said municipal judges and judges of city courts may also conduct preliminary investigation for any offense alleged to have been committed within their respective municipalities and cities which are cognizable by Courts of First Instance and the information filed with their courts without regard to the limits of punishment, and may release, or commit and bind over any person charged with such offense to secure his appearance before the proper court. xxx xxx xxx If, as the majority maintain, the power to conduct preliminary investigation is vested in all our courts by the Bill of Rights in the Constitution, of what need is there for the provision just quoted? Upon the other hand, if such conferment is

merely confirmatory of an existing constitutionally based authority, I see no reason at all why there should be such an express confirmation of the power of inferior courts alone and none at all of that of the Courts of First Instance. My position is that the silence of the pertinent provisions of the Judiciary Act on the matter, taken together with the fact that Section 99 of the Act repeals all laws and rules inconsistent with the provisions of this Act, indicates an unmistakable legislative intention to remove from the Courts of First Instance the prerogative under discussion. It is argued that to thus argue is to rely on repeal by implication which is not favored. I contend, however, that such pose overlooks the fact that the Judiciary Act of 1948 is indisputably in the nature of a codification of all laws existing at tile time of its passage related to the judiciary, the judges, the courts and their respective jurisdictions. Such being the case, the applicable rule of statutory construction is that to the effect that when scattered statutes and provisions relative to the same subject matter ire embodied subsequently in a single comprehensive legislation, any particular provision not incorporated therein and germane to the main subject matter is deemed to be repealed. (Sutherland Statutory Construction, Vol. 1, Sec. 2019, pp. 480-481.) Which is but logical, as otherwise, of what use is the integration? The main opinion points to certain legislations subsequent to 1948 which it contends constitute recognition on the part of Congress of the continued authority of Courts of First Instance to conduct preliminary investigations, such as, the Dangerous Drugs Act of 1972 or Republic Act 6425, and Republic Act 5180 governing preliminary investigations by fiscals. As regards Republic Act 5180, the main opinion claims that because Section 1 thereof makes mention of "investigation . . . conducted by a Court of -First Instance . . . in accordance with law," said provision is proof of a legislative assumption that said courts can exercise such power. To start with, I have never denied that there are instances when by specific provision of the pertinent laws, preliminary investigations in prosecutions under said laws have to be done by the Courts of First Instance, such as, in violations of the Election Law, the Anti-Subversion Act, Republic Act 1700 and the Dangerous Drugs Act, as amended by Presidential Decree No. 44.

But as I see it, if Republic Act 5180 is of any materiality in this discussion, it is in that it makes more patent that the policy of the law on preliminary investigations is to make them as expeditious as possible but without depriving the accused of the opportunity to be heard, which is likely to happen in a preliminary investigation in a Court of First Instance, following Solon 3 and Marcos, 4 unless, of course, the procedure provided for in Section 13, Rule 112 is followed pursuant to Albano vs. Arranz 5 It sounds to me rather anachronistic for a law to emphasize the right of an accused to be heard before he is arrested, while it perpetuates in the same breadth as a general rule a procedure which denies that right. Besides, why did not Republic Act 5180 which was approved on the same day as Republic Act 5179, mention preliminary investigations by Circuit Criminal Courts, just as the other later law, Republic Act 6425, cited in the main opinion expressly treated and referred to said courts separately from the Courts of First Instance and Domestic Relations Courts, if really Congress intended to confer the power in issue on them? The reference to Republic Act 6425 is even more revealing of the insistence of the majority to cling to any drifting straw in their effort to prove their point . Republic Act 6425 originally granted to the Circuit Criminal Courts exclusively jurisdiction over cases for violation thereof. Of course, it also contained provisions about preliminary investigations, but these did not in any manner indicate whether expressly or impliedly that the same courts would have authority to conduct such investigations. Here is the pertinent provision, before it was amended by Presidential Decree No. 44: SEC. 39. Jurisdiction of the Circuit Cirminal Court. The Circuit Criminal Court shall have exclusive original jurisdiction over all cases involving offenses punishable under this Act. The preliminary investigation of cases filed under this Act shall he resolved within a period of seven (7) days from the date of termination of the preliminary investigation. Where a prima facie case is established, the corresponding information shall be filed in court within twenty-four (24) hours. Decision on said cases

shall be rendered within a period of fifteen (15) days from the date of submission of the case. It is to be noted that there is here a requirement that the corresponding information should be filed in court within 24 hours. Does not this show that the preliminary investigation is not to be conducted by the court itself? But, as if to make it more patent that it is better that the investigation is undertaken by another authority, Presidential Decree 44 amended the above provision as follows: SEC. 39. Jurisdiction. Circuit Criminal Court, and Juvenile and Domestic Relations Court shall have concurrent original jurisdiction over all cases involving offenses punishable under this Act: Provided, That in cities or provinces where there are Juvenile and Domestic Relations Courts, the said courts shall take exclusive cognizance of cases where the offenders are under The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing. Where the preliminary' investigation is conducted by a prosecuting officer and a prima facie case is establish, the corresponding information shall be file in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a prima facie case is found to exist, the corresponding information shall be filed by the proper prosecuting officer within forthy-eigth (48) hours from the date of receipt of the records of the case. Trial of the cases under this section shall be finished by the court not later than ninety (90) days from the date of the filing of the information. Decision on said

cases shall be rendered within a period of fifteen (15) days from the date of submission of the case. That the foregoing provision does not vest any preliminary investigation authority in any of the courts mentioned is best proven by the fact that the Juvenile and Domestic Relations Courts have never conducted any preliminary investigation whether under its original charter or under this provision. I am not aware that any Court of First Instance has ever done so. The mention of "the preliminary investigation (being) conducted by a judge" in the above provision contemplates, to my mind, not the judges of the courts specified therein, but the proper municipal judges, bearing in mind the considerations already discussed above relative to the tendency of the every new law to remove from superior courts the power to conduct preliminary investigations, Indeed, in this connection, it is to me a mystery how easily my brethren have forgotten that when in another ease the very same respondent judge here did nothing more than act as the officer before whom the accused swore a confession which the said accused later on repudiated as having been secured thru violence and intimidation, We disqualified respondent from trying the case for fear that he might not be able to maintain "the cold nuetrality of an impartial judge". Quite inconsistently, they now hold that the law in question allows a judge to conduct the preliminary examination of the witnesses of the prosecution to issue a warrant of arrest and to subsequently try the main case on the merits, even if the language of said law in issue is not really clear and the existence of the pretended power is just being gathered from inference of doubtful logic, while, on the other hand, there is a multitude of reasons strongly justifying the contrary construction. In what I consider, with the pardon I hope of my learned colleagues, to be a desperate but vain effort to provide substantive law basis for Section 13 of Rule 112, the main opinion falls back on of all things the provision of the Bill of Rights of the Constitutions of 1935 and 1973 enjoining that no warrant (of arrest) "may issue but upon probable cause, to be determined by the judge 6 after examination under oath or affirmation of the complainant and the witnesses he may produce." It is posited that this constitutional mandate is the ultimate source of the authority of the Courts of First Instance, assuming the absence of any statutory basis, to conduct preliminary investigation. As I understand it, the theory is that under the Constitution, warrants of arrests may be issued only by judges (under the 1935 Constitution), and since before doing

so, they must examine the complainant and his witnesses under oath, ergo, judges, and I presume that would mean all judges, are constitutionally vested with jurisdiction to conduct preliminary examinations, if not investigations. But as I will demonstrate anon I sense some kind of non sequitur here. At this point , however, I will just make the observation that if it were true that all judges may conduct preliminary examinations by virtue of the above provision of the Bill of Rights, why did the majority have to go thru all the trouble of a lengthy and laborious if scholarly, desertation of why Circuit Criminal Courts have all the powers of the Courts of First Instance to prove that they can like the latter courts conduct preliminary examinations, when all they had to say is that Circuit Criminal Court Judges are among the judges the Constitution contemplates. Moreover, if the theory of the majority is to be pursued to its logical conclusion, then the jurisdiction of judges in the matter in issue cannot but be exclusive, for the Constitution mentions no other officer who may issue warrants of arrest. But then the question would arise, from where did our municipal mayors derive their authority under existing rules to perform such function? I have carefully perused with deep interest the elaborate statement in the main opinion of the "historical background of our law on criminal procedure." I regret to state, however, that even after such a very refreshing intellectual excursion, I still cannot see that such historical background traced by my scholarly brethren necessarily leads to the conclusion that the power of our courts to conduct preliminary investigation springs from the Constitution or that after the Judiciary Act of 1948 repealed all laws and ruled inconsistent with its provisions, the statutory authority of Courts of First Instance to conduct preliminary examinations and investigations still continued to exist. Quite to the contrary, my reading of the history of the law on preliminary investigations in this jurisdiction indicates that this Court has been consistently holding that the right to a preliminary investigation is not a constitutional right, at least in so far as the so-called second stage thereof is concerned. In Marcos vs. Cruz, 68 Phil. 96, this Court unanimously held: "In this jurisdiction, the preliminary investigation in criminal cases is not a creation of the Constitution; its origin is statutory and the right thereto can be invoked when so established and granted by law." (at p. 104) According to the same decision, it is only when there is a statute granting such right and still it is denied to the accused in spite of his demand therefor that there is a violation of the due process clause of the Constitution. More authoritatively, in my opinion, in Hashim vs. Boncan, 71 Phil. 216, no less than Justice Laurel took occasion to say: "Viewed in the light

of fundamental principles, the right to preliminary investigation is statutory, not constitutional." (at p. 225.) Of course, I am not overlooking the fact that seemingly what the main opinion contends to be constitutionally based is the power of judges to issue warrants of arrest, which corresponds power of judges to issue warrants of arrest, which corresponds only to the first stage of the prosecution known as preliminary examination, and for this reason, it is maintained the purported ruling can stand together with the Marcos and Hashim doctrines which relate to the second stage known as the preliminary investigation. I do not see it that way. My understanding of the Bill of Rights provision pertinent to this discussion, which reads thus: 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. (Art. IV, 1973 Constitution.) is that is a prohibition against any judge issuing a warrant of arrest without complying with the requirements set forth therein. In fact, an arrest may even be made without a warrant, and it is only when a warrant is needed that the judge who is issue the same is constitutionally bound to adhere to the conditions therein laid down. Literally, the provision does not refer to all judges, but only to "the judge" who will issue the warrant and that to me is presumably only the judge who by statute is authorized to act in the premises. In fine, the Constitution does not vest upon just any judge, much less upon all judges, jurisdiction to issue warrants of arrests; it merely limits and lays down conditions before any judge authorized law to issue warrants may do so. In like manner, it cannot be argued that because Section 4 (1) of the Bill of Rights

provides that privacy of communication and correspondence shall be inviolable except upon lawful order of the court, just any court in the Philippines, even a municipal court can grant such authority or that because the liberty of abode and of travel shall not be impaired except upon lawful order of the court, according to Section 5, also of the Bill, it follows that all courts in the Philippines may act in the premises, regardless of the definition and allocation of jurisdiction by the National Assembly or the legislature, who, after all is constitutionally endowed with authority to precisely make such allocation. (Sec. 1, Art. X, 1973 Constitution.) Indeed, this provision which reads thus: SECTION 1. The Judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law. The National Assembly shall have the power to define, prescribe, and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section five hereof. readily connotes that except in the case of the jurisdiction of the Supreme Court, it is not the Constitution but the statutes that are the sources of the jurisdiction of all the various courts of the country. Moreover, to my mind, the development of the law on preliminary investigations in this jurisdiction evinces a clear tendency not only to give the accused in all such investigations the opportunity to be present, to crossexamine the witnesses of the prosecution and to present his own evidence, until lately when the right to cross-examine was eliminated by Presidential Decree 77 as amended by Presidential Decree 911, but also (2) to transfer the function of conducting preliminary investigations, sans the power to issue warrants of arrest, to prosecuting officers belonging to the Executive Department to which the retrogative to prosecute or not to prosecute properly belongs in the exercise of the President's duty to see to it that the laws are properly executed (Estrella vs. Orendain, 37 SCRA 640.) Of course, in special cases wherein it is required by what in the legislature's judgment is the public interest, the particular statute concerned expressly provides that the preliminary investigation be conducted by the Court of First Instance, such as, in cases of violation of Election Code and cases of violations of the AntiSubversion Law (Act 1700). Indeed, with the broad control given to the

Secretary of Justice over crime prosecution by Presidential Decree 911, not to mention Our own ruling in Estrella recognizing his power of supervision and control over fiscals, as long as the case has not passed to the jurisdiction of the court, it does not sound realistic and in keeping with the trend of recent developments in the pertinent laws to further allow prosecutions to be initiated in the Courts of First Instance. 7 At this juncture, I would like to address myself to the separate concurring opinion of Mr. Justice Fernando, whose specialization in matters of constitutional law has won recognition not only for him but also for our country from no less than the organizers of the constitutional aspect of the bicentennial celebration of the American. I do not mind saying that whenever I want to be comprehensive in my study of constitutional issues, I always find his views illuminating. But on the point now in controversy, I find it difficult to see his point. Thus, he particularly underlines his conformity to the ruling in the main opinion that the 1935 as well as the 1973 Constitution "provide the source of the power of all Judges, including Judges of the Courts of First Instance, the Circuit Criminal Courts, and other courts of equivalent rank to determine probable cause before the issuance of arrest and therefore sustain the proceedings conducted by respondent Judge leading to the issuance of the warrants of arrest and his referral of the cases to the fiscal or other government prosecutor for the filing of the corresponding information," not without hastening to clarify, however, that "it is (his) understanding ... that the decision reached is at most an affirmation that the present Constitution, as did the 1935 Constitution, confers the power to conduct (the) preliminary examination preparatory to issuing a warrant of arrest, to a circuit criminal court judge" and that "it is only the first stage in the criminal process that may lead to the apprehension of the accused that has been passed upon by the Court", such that as to the judges' competence regarding a preliminary investigation," or "the second stage, (the) preliminary investigation proper," "that question has been left open." Of course, that such specifically was what the members of the Court were made to understand during the deliberations by the distinguished writer of the main opinion is clear and distinct in my recollection. As a matter of fact, for a moment I entertained earnestly the thought that I could probably join my brethren in the formulation of such a ruling. I had in mind then Mr. Justice Fernando's pose in his book on the Bill of Rights (1970 Edition) that the

significance of entrusting the responsibility of determining the existence of probable cause exclusively to judiciary (under the 1935 Constitution) in the defense of freedom cannot be overestimated. (p. 177 ) But after trying very hard to see it his very I have to confess, I have arrived at the conclusion that such a proposition cannot stand close scrutiny, if only because even if none but judges may issue warrants of arrest, it is not indispensable that all judges be vested with such power so it is really up to the legislature to determine which court or judge should be endowed with it. My knowledge, if limited, of the origin of the competence of judges to issue warrants of arrest is to the effect that it is a prerogative that antedates both the 1935 and the 1973 Constitutions. It was in fact recognized by the American military occupation authorities from the very inception of their rule over the Philippine Islands in 1901, as evidenced by General Orders No. 58, our first code of criminal procedure of American Surely, such military order cannot in any sense be deemed to be a mandate of constitutional stature. No doubt, Section 13 of Rule 112 appears to be a mere reiteration if with substantial modifications, of similar provision of General Orders No. 58 and Section 37 of Act 1627, but I regret I cannot accept the hypothesis emphasized in the main opinion that because said provision of the rules is supposed to be an implementations of the Bill of Rights provision against unreasonable searches and seizures, We must perforce conclude that the Bill of Rights is the source of the jurisdiction of the judges to act in the manner provided in said rule. There can be no dispute about the imperative need to make the safeguards against unreasonable arrests, searches and seizures as air tight as possible, but it is equally undeniable that giving the power to determine the existence of probable cause exclusively to judges is not the only guarantee that can ensure that same as being conducive to a more efficient system of prosecution of offenses. (See Hashim vs. Boncan, supra.) What is more, the 1973 Constitution has given the practice explicit constitutional basis by providing that probable cause may also be determined by "such other responsible officer (not necessarily a judge) as may be authorized by law." More than ever before, I now hold that the Bill of Rights provision under discussion has not been designed to confer the power to determine probable cause to every judge in the courts of the Philippines; rather said provision lays down the conditions and limitations which the particular judges authorized by law to perform such functions must observe. I feel I am supported in this view

by the following excerpts from the records of the Constitutional Convention of 1934 containing the apt observation of no less than Senator Vicente J. Francisco and Justice Jose P. Laurel. EL PRESIDENTE. Tiene la palabra el Delgado por Cavite. EL SR. FRANCISCO RAZONA SU EN MIENDA SR FRANCISCO. Seor Presidente y Caballeros de la Convencion: bajo el proyecto del Comite de 7, se puede expedir mandamientos de registro, con tal de que la peticion vaya acompaada de un affidavit en el que aparezcan hechos y circunstancias que demuestren causas probales. Bajo mi en mienda, un juez puede expedir un mandamiento de registro sino solo despues de haber examinado al denunciate y a sus testigos bajo juranmento. Parace serque la diferencia es grande. El texto en ingles del projecto dice. ... and no warrants shall issue by upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the person or things to be seized.' Esta expresion ha sido interpretada por los tribunales de America en el sentido de que el juez tiene dos medios: o puede tomar en cuenta para la expedicion de un mandamiento de registro un affidavit en el que consten hechos y demuestren la causa probable, o mediante examen del denuciante. Someto a la consideration de esta Asamblea que es completamente. peligroso permiter que un juez expida mandamiento de registro, atendiendose excluevanmente a lo que consta en un affidavit. Esta

Idea de que se puede expedir mandamiento de registro meiante affidavit, o sea, solamante mediante un documento jurado en el que aparezcan hechos probables, no ha sido aceptada por la orden genera Num.58. Esta disposicion que aparece en el proyecto de Comite de 7 que es una reproduccion o copia de precepto que aparece en el bill de Filipinas y luego en la Ley Jones, aparece reproducida, como ya he dicho, en la Orden General Num. 58, como articulo 27. Este articulo 27, dice lo siguiente: "No se expedirapeticion apoyada por juramento." Como ya he dicho, "peticion apoyada por jurament" puede ser testimonio del testigo o affidavit. Considerandose, sin embargo, que estos es verdaderamente peligroso para el derecho que tiene un individuo a la seguridad de sus bienes y papeles, nuestro mismo Codigo de Procedimiento Civil inserta en su Articulo 28 una disposicion que exige como requisito "sine quanon" el que el Juez no pueda expedir mandamiento de registro sino mediante el examen de testigos, especialmente del denunciatne. Este articulo viene a ser el Articulo 28 del Codigo de Procedimiento Civil que dice lo siguiente: "ElJuez de Primera Instancia o el Juez de paz debera, antes de expedir el mandamiento, examinara bajo juramento al denunciante o al testigo presente, consignando dus declaraciones por escrito." De modo que mi enmienda es a tenor o en consonancia con esta disposicion legal. Como ya he dicho, si mantuvieramos el precepto del proyecto de constitucion, esta disposicoin de la Orden General Num. 58 podra en cierto modo ser contradictoria al procepto del proyecto de constitucion en la forma como esta el precepto, cuya enmienda pido, y si encontrara una discrepancia susstancial entre dicho precepto y el si encontrara una discrepancia sustancial entre dicho precepto y el Codigo de Procedimiento Civil, creo queo este ultimo tendria que guedarse derogado, o al menos no puede mantenerse este precepto por anti-consitutcional.

Pero yo creo que ninguno de los miembros de esta Asamblea ver que mi enmienda no responde a una razon fundamental y a una necesidad que se ha sentido en la practica. Los abogados que estamos en el ejercicio de la profesion hemos visto muchas veces casos en que agentes secretos consiguen mandamientos de registro solamente mediante la presentacion de un affidavit que reune los requisitos de la ley. Pero que expedido el registro e impugnados despues los terminos del affidavit se descubre que los behcos que aparecen en el mismo son completamente falsos. De ahi que si queremos salvaguardar en todo lo posible el derecho de del individuo a la seguridad de sus bienes o papeles este rodeado de todas las garantias que puedan impedir o que impidan la expedicion de registros inmotivados o imnfaundados que pueden dar lugar a molestias o vejaciones enjustas a irreparables, creo que debemos hacer que en nuestra constitucion se consigne el precepto tal como yo propongo que se enmienda. (Pp. 750-752, Vol. III.) EL PRESIDENTE. El Delegado por Batanga (Seor Laurel) acepta la enmienda? SR. LAUREL. No seno Presidente, y quisiera decir dos palbras. MR. LAUREL. Mr President and Gentlemen of the Convention: The anomalies pointed out by the Honorable gentleman from Cavite, Mr. Francisco, if they ever occur at the present time, it si because of the irregularities committed by some justices. The amendment introduced by the distinguished Delegate from Cavite is already covered by existing legislation, and if those irregularities pointed out by him really occured, it is because some justices have not enforec and adhered to the specific provision of the General

Order. the General Order, or the Code of Criminal Procedure, now provides that the judge, before issuing a search warrant, must exsamine the complainant and his witnesses and that he must take their depositions in writing. The reasons why we are in favor o fthis amendment is because we are incorporating in our constitution something of a fundamental character. Now, before a judge could issue a search warrant, he must be under the obligation to examine personally under oath the complainant and if he has any witness, the withnesses that he may produce. It is not necessary for me to recall here one of the grievances of the early settlers in America which was one of the causes of the revolution against the mother country, England; the issuing of the so-called general search warrant. It is, therefore, quite important that we impose this obligation upon the judge, so that he will not be issuing search warrant in blank, or simply accompanied by affidavitsm, but that he must consider the sanctity of the home. It is necessary thta we surrond that power with the necessary constitutional guaranty. You might say that as this amendment is already in the general legislation, what is the necessity of incorporating this in the constitution. The necessity consist in that the constitution is something permanent for the protection of the rather than general legislation in this constitution that we shall adopt. For this reason, the committee accepts and approves of the amendment as suggested by Delegate Francisco. (Pp 757-785, Vol III.) And so, since there is neither any constitutional provision nor statute that presently confers on Judges of the Courts of First Instance the power to conduct preliminary examinations, and the trend of our laws is to leave such function to other responsible officers, except the very act of issuing the warrant of arrest, I have no alternative by to deny to Circuit Criminal Courts such power.

I cannot close this separate opinion without inviting attention to certain specific points of procedure which the main opinion seems not to have bothered to pass upon, notwithstanding what I consider to be their importance . In G.R. No. L34038, I notice that respondent judge conducted a preliminary investigation on the basis of nothing more than a letter-complaint of the petitioner Collector of Customs. It is not stated whether or not it was in due form or under oath. Whil as Mr. Justice Fernando stresses, this decision recognizes only the power of respondent judge to conduct the first stage or the preliminary examination, in G.R. No. L-34038, L-34243, L-39525 and L-40031, what are actually involved are preliminary investigations, both the first and second stages. It is only in G.R. Nos. L-36376 and L-38688 that respondent judge has not been able to conduct even the dispositive portion of Our judgment is to be understood, Court, as attested to by Mr. Justice Fernando, reaches only preliminary examinatins and not preliminary investigations, in order precisely to avoid having to overrule Hashim vs. Boncan and Marcos vs. Cruz, which I understand some members of the Court are not ready to do. Regarding G.R. No. L-34038, I agree that respondent judge executed his authority in providing that his order of dismissal is with predice and in ordering the return of the article seized by the customs authorities to his co-respondent Makapugay. Of coused anyway , in legal contemplation the qualification "with prejudice" thus made by respondent judge means nothing. In no way can it have the effect of jeopardy, since what was conducted by him was only a preliminary investigation, which in my opinion is unauthorized and void. And assuming it to be valid there would be no need of setting aside the order of dismissal itself; it is enough to say that it is a dismissal before arraignment and jeopardy has not thereby attached, the express qualification therein of "with prejudice" notwithstanding. IN VIEW OF ALL THE FOREGOING, I vote to grant the petitions in G.R. No. L-34038 insofar as the respondent judge's impugned order of July 6, 1971 orders the return of the articles seized to his co-respondent Makapugay and insofar as G.R. Nos. L-34243, L-36376, L-39525, L-38688 and L-40021 are concerned, I am giving my concurrence to the judgment therein subject to the qualifications I have discussed in this separate opinion.

Separate Opinions FERNANDO, J., concurring The opinion of the Court, both thorough and comprehensive, penned by Justice Makasiar, is impressive for its analytical skill and scholarly attributes. On the whole then, especially so where reference is made to our previous decisions, there is no impediment to full concurrence. This is particularly true where it concerns the ruling announced by this Court, i.e., "that both Section 1(3), Article Ill of the 1935 Constitution and Section 3, Article IV of the 1973 Constitution provide the source of the power of all Judges, including Judges of the Court of First Instance, the Circuit Criminal Courts, and other courts of equivalent rank, to conduct the examination to determine probable cause before the issuance of the warrant of arrest and therefore sustain the proceedings conducted by respondent Judge leading to the issuance of the warrants of arrest and his referral of the cases to the fiscal or other government prosecutor for the filing of the corresponding information." 1 At that, there is still need, it seems to me, for a few words not only to set forth the extent of my agreement with my brethren but also to indicate what for me are the precise limits of our holding. The full and exhaustive treatment of the specific issue dealing with the power of the circuit criminal courts to conduct preliminary examination, with historical and textual allusions to the previous judicial pronouncements and comparable statutory provisions, certainly a virtue to be commended, may for those not sufficiently discerning, yield implications which, for me, go further than is intended by us. It is my understanding then that the decision reached is at most an affirmation that the present Constitution, as did the 1935 Constitution, confers the power to conduct preliminary examination preparatory to issuing a warrant of arrest, to a circuit criminal court judge. Even then, however, he should for sound policy reasons curb any eagerness . s or propensity to make use of such competence. 1. To repeat, it is solely the first stage in the criminal process that may lead to the apprehension of the accused that has been passed upon by this Court. It has not considered the second stage, that of preliminary investigation proper, one of equal significance. As far back as 1910, its importance was stressed in

United States v. Grant and Kennedy. 2 Thus: "The object or purpose of a preliminary investigation, or a previous inquiry of some kind, before an accused person is placed upon trial, is to secure the innocent against hasty, malicious, and oppressive prosecutions, and to protect him 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." 3 It is of the essence then that the accused should be heard. There are overtones in the opinion of the Court susceptible to being misinterpreted in this regard, if it be assumed that upon the termination of the preliminary examination the arraignment and trial could then proceed. I would dissociate myself from such a view. I am gratified therefore that it is made explicit therein that our ruling is limited to the power of a judge under the Circuit Criminal Court Act 4 to conduct a preliminary examination. As to his competence regarding a preliminary investigation, it is my understanding that the question has been left open. 2. Respondent Judge was likewise admonished "to concentrate on hearing and deciding criminal cases filed before their courts (see Mateo v. Villaluz, 50 SCRA 18, 28-29, March 31, 1973." 5 That is as it should be. It is well that it is so. The occasion for its exercise should be minimized. That is the teaching of Mateo v. Villaluz, the same respondent Judge in these petitions. The facts could be differentiated, but the principle announced holds true. The load to be shouldered by a trial judge is heavy enough for him to attend to matters which could be looked after by municipal judges. So this excerpt from Mateo would indicate: "To avoid any further controversies of this nature, lower court judges are well-advised to limit themselves to the task of adjudication and to leave to others the role of notarizing declarations. The less an occupant of the bench fritters away his time and energy in tasks [that could be left to other hands], the. less the danger of his being a participant in any event that might lend itself to the interpretation that his impartiality has been compromised. There is much to be said for displaying zeal and eagerness in stamping out criminality, but that role is hardly fit for a judge who must bide his time until the case is before him. He must ever he on guard lest what' s done by him, even from the best of motives, may be thought of as eroding that objectivity and sobriety which are the hallmarks of judicial conduct. Thus should he attend to the performance of the sacred trust that is his." 6 For me, the fact that a judge had listened to testimony damaging to a prospective accused, without his being given the opportunity to refute the same, may lead to a subsconcious prejudice difficult to erase at the stage of trial.

BARREDO, J, concurring: I concur in the result of the judgment in these cases, for although the main opinion sustains the authority of Circuit Criminal Courts to conduct preliminary investigations, it strictly ordains, however, that "as a matter of policy (sic) We enjoin the respondent Judge and other Circuit Criminal Court Judges to concentrate on hearing and deciding criminal cases filed before their courts." With such an imperious mandate, I am satisfied that Circuit Criminal Courts will not anymore do what I am fully convinced they are not legally permitted to do. I and certain no Criminal Court Judge will dare deviate from the policy announced in the main opinion, which, of course, I say is the policy of Republic Act 5179 itself. Indeed, my uncompromising position is that it is the policy of the law itself, rather than that of this Court alone as the main opinion would seem to imply, that Circuit Criminal Courts should strictly confine themselves to merely trying and deciding the cases assigned to them, and I have always insisted that it should be on the basis of that very policy of the law itself informed in public interest that this Court should construe the statutory provision here in issue, Section 1 of Republic Act 5179 which provides as follows: In each of the sixteen judicial districts for the Court of First Instance as presently constituted, there is hereby created a Circuit Criminal Court with limited jurisdiction, concurrent with the regular Court of First Instance, to try and decide the following criminal cases falling under the original and exclusive jurisdiction of the latter: a. Crimes committed by public officers, crimes against persons and crimes against property as defined and penalized under the Revised Penal Code, whether simple or complexed with other crimes; b. Violations of Republic Act No. 3019, otherwise known as the Anti Graft and Corrupt Practices Act, ...

c. Violations of Section 3601, 3602 and 3604 of the Tariff and Customs Code and Sections 174, 175 and 345 of the National Internal Revenue Code. Thus, the judgment of the Court in these cases will after all effectively effectuate what I maintain is the spirit of the Act, notwithstanding the considerations predicating the main opinion which, with due respect to my learned brethren in majority, I find it impossible to agree with. And so, I can give my assent to the judgment in these cases without my having to sacrifice my conviction herein involved, which I am explaining in this separate opinion. Frankly, I will never be able to comprehend why the majority can give the above provision a construction contrary to what plainly appears to be policy that underlies it, only for them to just the same "enjoin" all Circuit Criminal Courts "as matter of policy" (of the Court) that they should not conduct preliminary investigations, which I say the statute, as matter of policy, never intended to allow them to do anyway. Not withstanding the scholarly and extended main opinion, I am not persuaded that the legislature ever intended to confer upon Circuit Criminal Courts the power to conduct preliminary investigations. Not only the specific words of the above provision, but the development of the law on preliminary investigations and the circumstances obtaining at the time Republic Act 5179 was enacted point unmistakably, in my considered opinion, to this conclusion. There are already two earlier cases in which this Court had to dwell on the extent of the jurisdiction of the circuit criminal courts. In both of them, the approach was restrictive. Way back in 1968, in the case of People vs. Paderna, 22 SCRA 273, the Court was confronted with the question of whether or not the mere fact that under Section 1 (c) of Republic Act 5179, the organic act of the circuit criminal courts, mentions violations of Section 174 of the National Internal Revenue Code to be among the cases under the jurisdiction of said courts, is enough justification for disregarding the penalty provided in the Revenue Code of fine of not less than P50 nor more than P200 and imprisonment of not less than 5 nor more than 30 days when the value of the cigarettes involved does not exceed P500, which ordinarily would make such violation fall within the original jurisdiction of the City Court of La Carlota

City and considering such violations to be within the jurisdiction of the corresponding Circuit Criminal Court. The Court, thru Justice Fred Ruiz Castro, resolved the problem this wise: The jurisdiction of the circuit criminal courts is thus dependent. not only on the type of cases but also on the penalties provided for those cases. Inasmuch as the case at bar falls within the exclusive and 'original jurisdiction of the city court, it cannot, even if it involves a violation of section 174 of the Tax Code, be taken cognizance of by the circuit criminal courts the jurisdiction of which is concurrent with that of courts of first instance in criminal cases where the latter's jurisdiction is original and exclusive (Atp 279.) Almost four years later, in Paraguya vs. Tiro, 41 SCRA 137, the issue was whether or not a case of indirect bribery, a crime committed by a public officer included in Section 1(a) of the Act, but punishable under Article 211 of the Revised Penal Code with arresto mayor, suspension and public censure, penalties which are imposable by the city of municipal courts concurrently with the courts of first instance, may be considered as within the jurisdiction of the, Circuit Criminal Courts. We held that the fact alone that the crime involved was one committed by a public officer did not suffice to place the case within the jurisdiction of said courts. Reiterating the predicate of adherence to the letter of the statute adopted in Parenda supra, Justice J.B.L. Reyes, emphasized the reason therefor thus: In fact, the intention of the legislature to bestow unto these special criminal courts limited jurisdiction is clear not only from the provision of the law itself; it was so stated that this limited jurisdiction of the circuit courts would enable them to act with dispatch on the cases cognizable by said tribunals. And, this is precisely the purpose for which the circuit criminal courts were created to contribute to the speedy resolution of criminal and help curd the progression of criminality in the country (Explanatory Note to Senate

Bill No. 388, which became Republic Act No. 5179) (At 142.) In the cases at bar, it is admitted in the main opinion that because "the primary purpose of the creation of the Circuit Criminal Courts in addition to the existing Courts of First instance, as above intimated, is to expedite the disposition of criminal cases involving serious offenses specified in Section 1 of Republic Act 5179, ... Circuit Criminal Judges, therefore, should not encumber themselves with attending to the preliminary examination and investigation of criminal complaints, which they should refer to the Provincial or City Fiscals, who, in turn can utilize the assistance of the state prosecutor for the same purpose." What is more, as if to predicate such observations on actuality and project them in the context of what is happening in the very court of respondent judge, the main opinion invites attention to the number of pending cases and matters therein which compelled respondent judge, according to the opinion, to seek from this Court the detail of a municipal judge to assist him. It further points out that under Section 5(3) Article X of the Constitution, Criminal Court Judges may be temporarily assigned by the Supreme Court to other stations, provided that, without the consent of the judges concerned, such assignment may not last longer than six months. 1 And to these very apt observations, it may be added that unlike in the regular courts of first instance, in circuit criminal courts "the trial of cases ... once commenced, shall be continuous until terminated and the judgment shall be rendered within thirty days from the time the case is submitted for decision. (Sec- 6, R.A. 5179). To my mind, all these considerations were precisely what the Congress had in mind when it enacted the law creating the circuit criminal courts. As may be seen, all of these considerations point to the necessity of freeing the said courts from all functions other than "to try and decide" the cases enumerated in the Act. It is inconceivable that with said considerations in view, Congress could have meant by omitting mention of preliminary investigations in the statute that it should nevertheless be construed in the sense of encumbering to borrow the language of the main opinion, the circuit criminal courts with the burden of "attending to preliminary examination and investigation of criminal complaints", which the main opinion emphasizes and the legislature must be presumed to have known can be better performed by the multitudinous other offices in the prosecution staff of the government already referred to above.

It is important to note that the conferment in the Judiciary Act of jurisdiction upon the regular courts of first instance is worded thus: SEC. 44. Original jurisdiction. Courts of First Instance shall have original jurisdiction. (a) In all civil actions in which the subject of the litigation is not capable of pecuniary estimation; (b) In all civil actions which involve the title to or possession of real property, or any interest therein, or the legality of any tax, impost or assessment, except actions of forcible entry into and detainer on lands or buildings, original jurisdiction of which is conferred by this Act upon city and municipal courts; (c) In all cases in which the demand, exclusive of interest, or the value of property in controversy, amounts to more than ten thousand pesos; (RA Nos. 2613 & 3828.) (d) In all actions in admiralty and maritime jurisdiction, irrespective of the value of the property in controversy or the amount of the demand; (e) In all matters of probate, both of testate and intestate estates, appointment of guardians, (See also Section 90, and note thereof trustees and receivers, and in all actions for annulment of marriage, and in all such special cases and proceedings as are not otherwise provided for; (f) In all criminal cases in which the penalty provided by law is imprisonment for more than six months, or a fine of more than two hundred pesos;

(g) Over all crimes and offenses committed on the high seas or beyond the jurisdiction of any country, or within any of the navigable waters of the Philippines, on board a ship or watercraft of any kind registered or licensed in the Philippines in accordance with the laws thereof. The jurisdiction herein conferred may be exercised by the Court of First Instance in any province into which the ship or watercraft upon which the crime or offense was committed shall come after the commission thereof: Provided, That the court first lawfully taking cognizance thereof shall have jurisdiction of the same to the exclusion of all other courts in the Philippines, and (h) Said court and their judges, or any of them, shall have the power to issue writ of injunction, mandamus, certiorari, prohibition, quo warranto and habeas corpus in their respective provinces and districts, in the manner provided in the Rules of Court. Significantly, unlike Section 1 of Republic Act 5179, this provision does not say that the Courts of First Instance shall "try and decide" the cases therein enumerated. Rather, it simply says they shall have original jurisdiction "in" and "over" the respective cases mentioned. In other words, Section 1 of Republic Act 5179 does not grant the circuit criminal courts jurisdiction "in" or "over" the cases listed, but, as may be plainly seen in the above- quoted tenor of its pertinent provision, only "the limited jurisdiction . . . to try and decide" them. To my mind, this difference in phraseology must have been intentional in order to emphasize the restricted and limited prerogatives of Circuit Criminal Courts, not only as to the nature of the cases that can be filed with them but also as to the extent of their functions and powers relative to said cases. I maintain that consonant with the need to make of the Circuit Criminal Courts the courts of special and limited jurisdiction designed to attend with utmost expeditiousness to the cases assigned to them, as undoubtedly the law intends them to be, Section 1 of the Act should be construed, even in case of doubt in the sense not only that the jurisdiction of said courts is limited to the cases which they may take cognizance of, but also in that any other work not

strictly part of the functions to "try and decide" said cases, is not contemplated to be performed by them. It is a familiar rule that the jurisdiction of a court, may not be deemed granted by mere implication, unless perhaps in instances when this is indubitably clear. Whenever there is reason to doubt, as in the case before Us, precisely because of the considerations expounded in the main opinion as to why, as a matter of this Court's policy, at least, the circuit criminal courts should refrain from holding preliminary investigations, the rule, as I know it, is to deny the existence of power. In this connection, it should he borne in mind that the power to conduct preliminary investigations has never been deemed as a mere incidental prerogative of any court. It exist only when duly granted. It should be noted from the provisions of Section 44 of the Judiciary Act aforequoted that even the authority of the regular courts of first instance to grant writs of injuction, mandamus certiorari, prohibition, quo warranto and habeas corpus, which by their nature could reasonably be deemed inferable from the grant of general jurisdiction, had still to be granted expressly to said courts, and only within their respective provinces and districts. And this Court has been very restrictive in construing this particular grant of jurisdiction. (See Director of forestry vs. Ruiz, L-24882, April 30,1971, 38 SCRA 559, and cases therein cited.) To repeat, such authority would seem to be implicit from the grant of general jurisdiction, and yet We always insist that it should be specifically conferred. Now, is there anything in the conduct of preliminary investigations that makes it more inherent or inseparable from the expressed power "to try and decide" that necessarily, We must consider the same as included in said power or as something that must indispensably be added thereto, such that the authority therefor need not be spelled out in black and white? Withal, if in the case of inferior courts, which everyone knows have always conducted preliminary investigations since the enactment of Act 194 in 1901, the Judiciary Act had to expressly provide for the grant of such authority to them, what special reason is there why the conferment upon circuit criminal courts of the faculty to "try and decide" certain types of criminal cases should be deemed as necessarily including the authority to conduct preliminary investigations related thereto, when according to what the main opinion emphasizes, such function can be better performed by the prosecution staff of the government?

The main opinion holds that it "is plain and evident from Sections 3 and 6 of their organic act, Republic Act 5179" that circuit criminal courts "have the same powers and functions as those conferred upon regular Courts of First Instance necessary to effectively exercise (their) special and limited jurisdiction." But I am afraid this reasoning ignores that "the powers and functions (of) the regular Courts of First Instance" conferred upon the circuit criminal courts are only those "necessary (for them) to effectively exercise (their) special and limited jurisdiction", and the issue precisely is what is the extent of that special and limited jurisdiction. As I have already pointed out, that "special and limited jurisdiction" is "to try and decide" the cases enumerated, and this power does not have to be accompanied, whether by logical implication or by the reasons behind the organization of the courts, by the authority to conduct preliminary investigations. I dare say, in connection with the provisions of Section 3 of the Act, that the provisions of laws and Rules of Court, if any, granting jurisdiction to regular courts of first instance to conduct preliminary investigations are inconsistent with the provisions of the Act, considering that these latter provisions contemplate circuit criminal courts which should not undertake the functions of conducting preliminary investigations, as found factually by the main opinion, albeit surprisingly the majority would give weight to such factual finding only to serve as basis for a policy only of the Court, instead of utilizing the same as premise for the proper construction of the Act in order that such policy may be legally effectuated, since it is indeed the policy underlying the law itself. And besides, a careful reading of Section 3 should make it clear to everyone that its phraseology studiously refers not to all the powers of the judges of the Courts of First Instance, but only to "the provisions of the laws and the Rules of Court relative to the Judges of the Courts of First Instance", meaning their qualifications, salaries, transfer etc. and to their powers and prerogatives in "the trial, and disposition and appeal of criminal cases" in the circuit criminal courts, which is plainly consistent with the scope of the power granted to them under Section 1 "to try and decide." The main opinion quotes from my concurring opinion in People vs. Gutierrez, 36 SCRA 172, apparently to show that in my view, "circuit criminal courts are nothing but additional branches of the regular Courts of First Instance in their respective districts". But the portion quoted from my opinion is not complete. What I said was this:

I take it that under Republic Act 5179, Circuit Criminal Courts are nothing but additional branches of the regular Courts of First Instance in their respective districts with the limited concurrent jurisdiction to take cognizance of, try and decide only those cases (enumerated in Section I of the Act. This is readily implied from Section 3 of the Act which says: SEC. 3. The provisions of all laws and the Rules of Court relative to the judges of the Courts of First Instance and the trial, disposition and appeal of criminal cases therein shall be applicable to the circuit judge and the cases cognizable by them insofar as they are not inconsistent with the provisions of this Act. xxx xxx xxx In other words, I adhered closely to the language of the statute and referred to the jurisdiction of the criminal courts as comprising of the power "to take cognizance of, try and decide" only the cases therein enumerated. I did not concede that the authority was broadly "over" those cases, as in Section 44 of Judiciary. Act, but strictly "to take cognizance of, try and decide" them. There is another point which is more transcendental. The main opinion assumes the correctness of the generally prevailing impression that courts of first instance continue to possess the jurisdiction to conduct preliminary investigations. It cites the Rules of Court as the source of such authority. For my part, I am not sure, to put it mildly, that the Supreme Court can arrogate jurisdiction unto itself or grant any to the lower courts by merely promulgating a rule to such effect. I believe it is safer to hold that jurisdiction to act on any given matter may be granted only by statute or legislative enactment, for the simple reason that jurisdiction is substantive and not adjective in nature. And so, the question in my mind is simply this, assuming arguendo that circuit criminal courts have all the powers of the regular courts of first instance, which I dispute, is it clear that the latter courts continued to possess, after the

Judiciary Act of 1948 went into effect, the power to conduct preliminary investigations? In other words, are the provisions of the Rules of Court invoked in the main opinion, Section 13 of Rule 112, predicated on any law or statute? According to former Chief Justice Moran, this section was "taken, with amendments, from Section 4 of former Rule 108, which was a substantial restatement of the ruling of the Supreme Court in one case", citing People vs. Solon, supra. (See 4 Moran, Rules of Court, p. 117, 1970 ed.) But Sec. 4 of Rule 108 was part of the Rules of Court of 1940, when Act 1627 was still in force. Apparently, when Rule 108 was revised in the 1964 Rules, it was overlooked that under Section 99 of the Judiciary Act, "all laws and rules inconsistent with the provisions of this Act" was repealed thereby wiping away Section 37 of Act 1627. No matter how many times one may read the provisions of the whole Judiciary Act of 1948 anti particularly those that refer to the jurisdiction of the Courts of First Instance, one will never find any word therein that directly or indirectly confers upon said courts the authority to conduct preliminary investigations. In pointing out this patent omission, I am of course assuming that the jurisdiction to conduct preliminary investigations, while sometimes given to courts in spite of its being basically an executive function per Orendain, 2 is not inherent in every court. For instance, in the Judiciary Act itself, it can be clearly seen that as in the case of Act 194, seventy-five years ago, by Section 87 of the Act, the legislature had to expressly vest upon inferior courts the power to conduct such preliminary investigations. Thus, Section 87 provides in unmistakable terms: xxx xxx xxx Said municipal judges and judges of city courts may also conduct preliminary investigation for any offense alleged to have been committed within their respective municipalities and cities which are cognizable by Courts of First Instance and the information filed with their courts without regard to the limits of punishment, and may release, or commit and bind over any person charged with such offense to secure his appearance before the proper court.

xxx xxx xxx If, as the majority maintain, the power to conduct preliminary investigation is vested in all our courts by the Bill of Rights in the Constitution, of what need is there for the provision just quoted? Upon the other hand, if such conferment is merely confirmatory of an existing constitutionally based authority, I see no reason at all why there should be such an express confirmation of the power of inferior courts alone and none at all of that of the Courts of First Instance. My position is that the silence of the pertinent provisions of the Judiciary Act on the matter, taken together with the fact that Section 99 of the Act repeals all laws and rules inconsistent with the provisions of this Act, indicates an unmistakable legislative intention to remove from the Courts of First Instance the prerogative under discussion. It is argued that to thus argue is to rely on repeal by implication which is not favored. I contend, however, that such pose overlooks the fact that the Judiciary Act of 1948 is indisputably in the nature of a codification of all laws existing at tile time of its passage related to the judiciary, the judges, the courts and their respective jurisdictions. Such being the case, the applicable rule of statutory construction is that to the effect that when scattered statutes and provisions relative to the same subject matter ire embodied subsequently in a single comprehensive legislation, any particular provision not incorporated therein and germane to the main subject matter is deemed to be repealed. (Sutherland Statutory Construction, Vol. 1, Sec. 2019, pp. 480-481.) Which is but logical, as otherwise, of what use is the integration? The main opinion points to certain legislations subsequent to 1948 which it contends constitute recognition on the part of Congress of the continued authority of Courts of First Instance to conduct preliminary investigations, such as, the Dangerous Drugs Act of 1972 or Republic Act 6425, and Republic Act 5180 governing preliminary investigations by fiscals. As regards Republic Act 5180, the main opinion claims that because Section 1 thereof makes mention of "investigation ... conducted by a Court of -First Instance . . . in accordance with law," said provision is proof of a legislative assumption that said courts can exercise such power. To start with, I have never denied that there are instances when by specific provision of the

pertinent laws, preliminary investigations in prosecutions under said laws have to be done by the Courts of First Instance, such as, in violations of the Election Law, the Anti-Subversion Act, Republic Act 1700 and the Dangerous Drugs Act, as amended by Presidential Decree No. 44. But as I see it, if Republic Act 5180 is of any materiality in this discussion, it is in that it makes more patent that the policy of the law on preliminary investigations is to make them as expeditious as possible but without depriving the accused of the opportunity to be heard, which is likely to happen in a preliminary investigation in a Court of First Instance, following Solon 3 and Marcos, 4 unless, of course, the procedure provided for in Section 13, Rule 112 is followed pursuant to Albano vs. Arranz 5 It sounds to me rather anachronistic for a law to emphasize the right of an accused to be heard before he is arrested, while it perpetuates in the same breadth as a general rule a procedure which denies that right. Besides, why did not Republic Act 5180 which was approved on the same day as Republic Act 5179, mention preliminary investigations by Circuit Criminal Courts, just as the other later law, Republic Act 6425, cited in the main opinion expressly treated and referred to said courts separately from the Courts of First Instance and Domestic Relations Courts, if really Congress intended to confer the power in issue on them? The reference to Republic Act 6425 is even more revealing of the insistence of the majority to cling to any drifting straw in their effort to prove their point . Republic Act 6425 originally granted to the Circuit Criminal Courts exclusively jurisdiction over cases for violation thereof. Of course, it also contained provisions about preliminary investigations, but these did not in any manner indicate whether expressly or impliedly that the same courts would have authority to conduct such investigations. Here is the pertinent provision, before it was amended by Presidential Decree No. 44: SEC. 39. Jurisdiction of the Circuit Cirminal Court. The Circuit Criminal Court shall have exclusive original jurisdiction over all cases involving offenses punishable under this Act. The preliminary investigation of cases filed under this Act shall he resolved within a period of seven (7) days

from the date of termination of the preliminary investigation. Where a prima facie case is established, the corresponding information shall be filed in court within twenty-four (24) hours. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case. It is to be noted that there is here a requirement that the corresponding information should be filed in court within 24 hours. Does not this show that the preliminary investigation is not to be conducted by the court itself? But, as if to make it more patent that it is better that the investigation is undertaken by another authority, Presidential Decree 44 amended the above provision as follows: SEC. 39. Jurisdiction. Circuit Criminal Court, and Juvenile and Domestic Relations Court shall have concurrent original jurisdiction over all cases involving offenses punishable under this Act: Provided, That in cities or provinces where there are Juvenile and Domestic Relations Courts, the said courts shall take exclusive cognizance of cases where the offenders are under The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing. Where the preliminary' investigation is conducted by a prosecuting officer and a prima facie case is establish, the corresponding information shall be file in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a prima facie case is found to exist, the corresponding information shall be filed by the proper prosecuting officer within forthy-eigth (48) hours from the date of receipt of the records of the case.

Trial of the cases under this section shall be finished by the court not later than ninety (90) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case. That the foregoing provision does not vest any preliminary investigation authority in any of the courts mentioned is best proven by the fact that the Juvenile and Domestic Relations Courts have never conducted any preliminary investigation whether under its original charter or under this provision. I am not aware that any Court of First Instance has ever done so. The mention of "the preliminary investigation (being) conducted by a judge" in the above provision contemplates, to my mind, not the judges of the courts specified therein, but the proper municipal judges, bearing in mind the considerations already discussed above relative to the tendency of the every new law to remove from superior courts the power to conduct preliminary investigations, Indeed, in this connection, it is to me a mystery how easily my brethren have forgotten that when in another ease the very same respondent judge here did nothing more than act as the officer before whom the accused swore a confession which the said accused later on repudiated as having been secured thru violence and intimidation, We disqualified respondent from trying the case for fear that he might not be able to maintain "the cold nuetrality of an impartial judge". Quite inconsistently, they now hold that the law in question allows a judge to conduct the preliminary examination of the witnesses of the prosecution to issue a warrant of arrest and to subsequently try the main case on the merits, even if the language of said law in issue is not really clear and the existence of the pretended power is just being gathered from inference of doubtful logic, while, on the other hand, there is a multitude of reasons strongly justifying the contrary construction. In what I consider, with the pardon I hope of my learned colleagues, to be a desperate but vain effort to provide substantive law basis for Section 13 of Rule 112, the main opinion falls back on of all things the provision of the Bill of Rights of the Constitutions of 1935 and 1973 enjoining that no warrant (of arrest) "may issue but upon probable cause, to be determined by the judge 6 after examination under oath or affirmation of the complainant and the witnesses he may produce." It is posited that this constitutional mandate is the ultimate source of the authority of the Courts of First Instance, assuming the

absence of any statutory basis, to conduct preliminary investigation. As I understand it, the theory is that under the Constitution, warrants of arrests may be issued only by judges (under the 1935 Constitution), and since before doing so, they must examine the complainant and his witnesses under oath, ergo, judges, and I presume that would mean all judges, are constitutionally vested with jurisdiction to conduct preliminary examinations, if not investigations. But as I will demonstrate anon I sense some kind of non sequitur here. At this point , however, I will just make the observation that if it were true that all judges may conduct preliminary examinations by virtue of the above provision of the Bill of Rights, why did the majority have to go thru all the trouble of a lengthy and laborious if scholarly, desertation of why Circuit Criminal Courts have all the powers of the Courts of First Instance to prove that they can like the latter courts conduct preliminary examinations, when all they had to say is that Circuit Criminal Court Judges are among the judges the Constitution contemplates. Moreover, if the theory of the majority is to be pursued to its logical conclusion, then the jurisdiction of judges in the matter in issue cannot but be exclusive, for the Constitution mentions no other officer who may issue warrants of arrest. But then the question would arise, from where did our municipal mayors derive their authority under existing rules to perform such function? I have carefully perused with deep interest the elaborate statement in the main opinion of the "historical background of our law on criminal procedure." I regret to state, however, that even after such a very refreshing intellectual excursion, I still cannot see that such historical background traced by my scholarly brethren necessarily leads to the conclusion that the power of our courts to conduct preliminary investigation springs from the Constitution or that after the Judiciary Act of 1948 repealed all laws and ruled inconsistent with its provisions, the statutory authority of Courts of First Instance to conduct preliminary examinations and investigations still continued to exist. Quite to the contrary, my reading of the history of the law on preliminary investigations in this jurisdiction indicates that this Court has been consistently holding that the right to a preliminary investigation is not a constitutional right, at least in so far as the so-called second stage thereof is concerned. In Marcos vs. Cruz, 68 Phil. 96, this Court unanimously held: "In this jurisdiction, the preliminary investigation in criminal cases is not a creation of the Constitution; its origin is statutory and the right thereto can be invoked when so established and granted by law." (at p. 104) According to the same decision, it is only when there is a statute granting such right and still it is denied to the accused in spite

of his demand therefor that there is a violation of the due process clause of the Constitution. More authoritatively, in my opinion, in Hashim vs. Boncan, 71 Phil. 216, no less than Justice Laurel took occasion to say: "Viewed in the light of fundamental principles, the right to preliminary investigation is statutory, not constitutional." (at p. 225.) Of course, I am not overlooking the fact that seemingly what the main opinion contends to be constitutionally based is the power of judges to issue warrants of arrest, which corresponds power of judges to issue warrants of arrest, which corresponds only to the first stage of the prosecution known as preliminary examination, and for this reason, it is maintained the purported ruling can stand together with the Marcos and Hashim doctrines which relate to the second stage known as the preliminary investigation. I do not see it that way. My understanding of the Bill of Rights provision pertinent to this discussion, which reads thus: 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. (Art. IV, 1973 Constitution.) is that is a prohibition against any judge issuing a warrant of arrest without complying with the requirements set forth therein. In fact, an arrest may even be made without a warrant, and it is only when a warrant is needed that the judge who is issue the same is constitutionally bound to adhere to the conditions therein laid down. Literally, the provision does not refer to all judges, but only to "the judge" who will issue the warrant and that to me is presumably only the judge who by statute is authorized to act in the premises. In fine, the Constitution does not vest upon just any judge, much less upon all

judges, jurisdiction to issue warrants of arrests; it merely limits and lays down conditions before any judge authorized law to issue warrants may do so. In like manner, it cannot be argued that because Section 4 (1) of the Bill of Rights provides that privacy of communication and correspondence shall be inviolable except upon lawful order of the court, just any court in the Philippines, even a municipal court can grant such authority or that because the liberty of abode and of travel shall not be impaired except upon lawful order of the court, according to Section 5, also of the Bill, it follows that all courts in the Philippines may act in the premises, regardless of the definition and allocation of jurisdiction by the National Assembly or the legislature, who, after all is constitutionally endowed with authority to precisely make such allocation. (Sec. 1, Art. X, 1973 Constitution.) Indeed, this provision which reads thus: SECTION 1. The Judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law. The National Assembly shall have the power to define, prescribe, and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section five hereof. readily connotes that except in the case of the jurisdiction of the Supreme Court, it is not the Constitution but the statutes that are the sources of the jurisdiction of all the various courts of the country. Moreover, to my mind, the development of the law on preliminary investigations in this jurisdiction evinces a clear tendency not only to give the accused in all such investigations the opportunity to be present, to crossexamine the witnesses of the prosecution and to present his own evidence, until lately when the right to cross-examine was eliminated by Presidential Decree 77 as amended by Presidential Decree 911, but also (2) to transfer the function of conducting preliminary investigations, sans the power to issue warrants of arrest, to prosecuting officers belonging to the Executive Department to which the retrogative to prosecute or not to prosecute properly belongs in the exercise of the President's duty to see to it that the laws are properly executed (Estrella vs. Orendain, 37 SCRA 640.) Of course, in special cases wherein it is required by what in the legislature's judgment is the public interest, the particular statute concerned expressly provides that the

preliminary investigation be conducted by the Court of First Instance, such as, in cases of violation of Election Code and cases of violations of the AntiSubversion Law (Act 1700). Indeed, with the broad control given to the Secretary of Justice over crime prosecution by Presidential Decree 911, not to mention Our own ruling in Estrella recognizing his power of supervision and control over fiscals, as long as the case has not passed to the jurisdiction of the court, it does not sound realistic and in keeping with the trend of recent developments in the pertinent laws to further allow prosecutions to be initiated in the Courts of First Instance. 7 At this juncture, I would like to address myself to the separate concurring opinion of Mr. Justice Fernando, whose specialization in matters of constitutional law has won recognition not only for him but also for our country from no less than the organizers of the constitutional aspect of the bicentennial celebration of the American. I do not mind saying that whenever I want to be comprehensive in my study of constitutional issues, I always find his views illuminating. But on the point now in controversy, I find it difficult to see his point. Thus, he particularly underlines his conformity to the ruling in the main opinion that the 1935 as well as the 1973 Constitution "provide the source of the power of all Judges, including Judges of the Courts of First Instance, the Circuit Criminal Courts, and other courts of equivalent rank to determine probable cause before the issuance of arrest and therefore sustain the proceedings conducted by respondent Judge leading to the issuance of the warrants of arrest and his referral of the cases to the fiscal or other government prosecutor for the filing of the corresponding information," not without hastening to clarify, however, that "it is (his) understanding. . . that the decision reached is at most an affirmation that the present Constitution, as did the 1935 Constitution, confers the power to conduct (the) preliminary examination preparatory to issuing a warrant of arrest, to a circuit criminal court judge" and that "it is only the first stage in the criminal process that may lead to the apprehension of the accused that has been passed upon by the Court", such that as to the judges' competence regarding a preliminary investigation," or "the second stage, (the) preliminary investigation proper," "that question has been left open." Of course, that such specifically was what the members of the Court were made to understand during the deliberations by the distinguished writer of the main opinion is clear and distinct in my recollection. As a matter of fact, for a

moment I entertained earnestly the thought that I could probably join my brethren in the formulation of such a ruling. I had in mind then Mr. Justice Fernando's pose in his book on the Bill of Rights (1970 Edition) that the significance of entrusting the responsibility of determining the existence of probable cause exclusively to judiciary (under the 1935 Constitution) in the defense of freedom cannot be overestimated. (p. 177 ) But after trying very hard to see it his very I have to confess, I have arrived at the conclusion that such a proposition cannot stand close scrutiny, if only because even if none but judges may issue warrants of arrest, it is not indispensable that all judges be vested with such power so it is really up to the legislature to determine which court or judge should be endowed with it. My knowledge, if limited, of the origin of the competence of judges to issue warrants of arrest is to the effect that it is a prerogative that antedates both the 1935 and the 1973 Constitutions. It was in fact recognized by the American military occupation authorities from the very inception of their rule over the Philippine Islands in 1901, as evidenced by General Orders No. 58, our first code of criminal procedure of American Surely, such military order cannot in any sense be deemed to be a mandate of constitutional stature. No doubt, Section 13 of Rule 112 appears to be a mere reiteration if with substantial modifications, of similar provision of General Orders No. 58 and Section 37 of Act 1627, but I regret I cannot accept the hypothesis emphasized in the main opinion that because said provision of the rules is supposed to be an implementations of the Bill of Rights provision against unreasonable searches and seizures, We must perforce conclude that the Bill of Rights is the source of the jurisdiction of the judges to act in the manner provided in said rule. There can be no dispute about the imperative need to make the safeguards against unreasonable arrests, searches and seizures as air tight as possible, but it is equally undeniable that giving the power to determine the existence of probable cause exclusively to judges is not the only guarantee that can ensure that same as being conducive to a more efficient system of prosecution of offenses. (See Hashim vs. Boncan, supra.) What is more, the 1973 Constitution has given the practice explicit constitutional basis by providing that probable cause may also be determined by "such other responsible officer (not necessarily a judge) as may be authorized by law." More than ever before, I now hold that the Bill of Rights provision under discussion has not been designed to confer the power to determine probable

cause to every judge in the courts of the Philippines; rather said provision lays down the conditions and limitations which the particular judges authorized by law to perform such functions must observe. I feel I am supported in this view by the following excerpts from the records of the Constitutional Convention of 1934 containing the apt observation of no less than Senator Vicente J. Francisco and Justice Jose P. Laurel. EL PRESIDENTE. Tiene la palabra el Delgado por Cavite. EL SR. FRANCISCO RAZONA SU EN MIENDA SR FRANCISCO. Seor Presidente y Caballeros de la Convencion: bajo el proyecto del Comite de 7, se puede expedir mandamientos de registro, con tal de que la peticion vaya acompaada de un affidavit en el que aparezcan hechos y circunstancias que demuestren causas probales. Bajo mi en mienda, un juez puede expedir un mandamiento de registro sino solo despues de haber examinado al denunciate y a sus testigos bajo juranmento. Parace serque la diferencia es grande. El texto en ingles del projecto dice. ... and no warrants shall issue by upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the person or things to be seized.' Esta expresion ha sido interpretada por los tribunales de America en el sentido de que el juez tiene dos medios: o puede tomar en cuenta para la expedicion de un mandamiento de registro un affidavit en el que consten hechos y demuestren la causa probable, o mediante examen del denuciante. Someto a la consideration de esta Asamblea que es

completamente. peligroso permiter que un juez expida mandamiento de registro, atendiendose excluevanmente a lo que consta en un affidavit. Esta Idea de que se puede expedir mandamiento de registro meiante affidavit, o sea, solamante mediante un documento jurado en el que aparezcan hechos probables, no ha sido aceptada por la orden genera Num. 58. Esta disposicion que aparece en el proyecto de Comite de 7 que es una reproduccion o copia de precepto que aparece en el bill de Filipinas y luego en la Ley Jones, aparece reproducida, como ya he dicho, en la Orden General Num. 58, como articulo 27. Este articulo 27, dice lo siguiente: "No se expedirapeticion apoyada por juramento." Como ya he dicho, "peticion apoyada por jurament" puede ser testimonio del testigo o affidavit. Considerandose, sin embargo, que estos es verdaderamente peligroso para el derecho que tiene un individuo a la seguridad de sus bienes y papeles, nuestro mismo Codigo de Procedimiento Civil inserta en su Articulo 28 una disposicion que exige como requisito "sine quanon" el que el Juez no pueda expedir mandamiento de registro sino mediante el examen de testigos, especialmente del denunciatne. Este articulo viene a ser el Articulo 28 del Codigo de Procedimiento Civil que dice lo siguiente: "ElJuez de Primera Instancia o el Juez de paz debera, antes de expedir el mandamiento, examinara bajo juramento al denunciante o al testigo presente, consignando dus declaraciones por escrito." De modo que mi enmienda es a tenor o en consonancia con esta disposicion legal. Como ya he dicho, si mantuvieramos el precepto del proyecto de constitucion, esta disposicoin de la Orden General Num. 58 podra en cierto modo ser contradictoria al procepto del proyecto de constitucion en la forma como esta el precepto, cuya enmienda pido, y si encontrara una discrepancia susstancial entre dicho precepto y el si encontrara una discrepancia sustancial entre dicho precepto y el Codigo de

G.R. No. 82585 November 14, 1988 MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L. MANZANAS, petitioners, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents. G.R. No. 82827 November 14, 1988 LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents. G.R. No. 83979 November 14, 1988. LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, respondents. Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585. Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and 83979.

RESOLUTION

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination nder oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

PER CURIAM: In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when informations for libel were filed against them although the finding of the existence of a prima facie case was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit. Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners' contention that they have been denied the administrative remedies available under the law has lost factual support. It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded.

On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution. It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person.

As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties. As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom, the Court finds no basis at this stage to rule on the point. The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue. WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED. Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., concurring: I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening statement. However, as to the more important issue on whether or not the prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the

more important issue in these petitions and it should be resolved now rather that later. Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom. We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel. I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense lawyers to argue before a trial judge. There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is

a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good. In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: xxx xxx xxx ... No longer is there a Minister of the Crown own or a person in authority of such exalted position that the citizen must speak of him only with bated breath. "In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900) In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges, would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to lay off certain issues or certain officials, the effect on a free press would be highly injurious.

Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra). The United States Supreme Court is even more emphatic, to wit: In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. xxx xxx xxx Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risk to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by lawthe argument of force in its worst form. ...

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at pp. 700-701) Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I realize that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech clause but we have to understand that some provocative words, which if taken literally may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which have not been considered. I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or her. The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of our fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their careers to stand in the way of public duty. But why should we subject them to this problem? And why should we allow the

possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more important areas of concern, the extremely difficult issues involving government power and freedom of expression. However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said: If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression. In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied. Separate Opinions GUTIERREZ, JR., J., concurring: I concur with the majority opinion insofar as it involves the three principal issues mentioned in its opening statement. However, as to the more important issue on whether or not the prosecution of the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe this is the more important issue in these petitions and it should be resolved now rather that later. Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice where it is not alone the criminal liability of an accused in a seemingly minor libel case which is involved but broader considerations of governmental power versus a preferred freedom. We have in these four petitions the unusual situation where the highest official of the Republic and one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist, the publisher and chairman of the

editorial board, the managing editor and the business manager in a not too indubitable a case for alleged libel. I am fully in accord with an all out prosecution if the effect will be limited to punishing a newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution for libel. We have as complainant a powerful and popular President who heads the investigation and prosecution service and appoints members of appellate courts but who feels so terribly maligned that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the press which would inevitably follow. I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals and defense lawyers to argue before a trial judge. There is always bound to be harassment inherent in any criminal prosecution. Where the harassment goes beyond the usual difficulties encountered by any accused and results in an unwillingness of media to freely criticize government or to question government handling of sensitive issues and public affairs, this Court and not a lower tribunal should draw the demarcation line. As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that "(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear conscience." The Court pointed out that while defamation is not authorized, criticism is to be expected and should be borne for the common good. In People v. Perfecto (43 Phil. 887 [1922]), the Court stated: xxx xxx xxx ... No longer is there a Minister of the Crown own or a person in authority of such exalted position that the citizen must

speak of him only with bated breath. "In the eye of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and has equal rights with every other man." (at p. 900) In fact, the Court observed that high official position, instead of affording immunity from slanderous and libelous charges, would actually invite attacks by those who desire to create sensation. It would seem that what would ordinarily be slander if directed at the typical person should be examined from various perspectives if directed at a high government official. Again, the Supreme Court should draw this fine line instead of leaving it to lower tribunals. This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where after discounting the possibility that the words may not be really that libelous, there is likely to be a chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and publishers to courageously perform their critical role in society. If, instead of merely reading more carefully what a columnist writes in his daily column, the editors tell their people to lay off certain issues or certain officials, the effect on a free press would be highly injurious. Because many questions regarding press freedom are left unanswered by our resolution, I must call attention to our decisions which caution that "no inroads on press freedom should be allowed in the guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).<re||an1w> The United States Supreme Court is even more emphatic, to wit: In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S

Ct 328. Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the other various other formulae for the repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment. xxx xxx xxx Those who won our independence believed ... that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risk to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsel is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by lawthe argument of force in its worst form. ... Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... (at pp. 700-701) Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful purveying of falsehood? Considering the free speech aspects of these petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping up everybody with the offending columnist? I realize

that the law includes publishers and editors but perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech clause but we have to understand that some provocative words, which if taken literally may appear to shame or disparage a public figure, may really be intended to provoke debate on public issues when uttered or written by a media personality. Will not a criminal prosecution in the type of case now before us dampen the vigor and limit the variety of public debate? There are many other questions arising from this unusual case which have not been considered. I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue on prematurity is moot. The second issue discusses a procedure now embodied in the recently amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent the third issue, considerations of public policy dictate that an incumbent President should not be sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if somebody vilifies or maligns him or her. The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I know that most of our fiscals and judges are courageous individuals who would not allow any considerations of possible consequences to their careers to stand in the way of public duty. But why should we subject them to this problem? And why should we allow the possibility of the trial court treating and deciding the case as one for ordinary libel without bothering to fully explore the more important areas of concern, the extremely difficult issues involving government power and freedom of expression. However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said: If one can claim to announce the judgment of legal history on any subject, it is that criminal libel laws are consistent with the concept of ordered liberty only when applied with safeguards evolved to prevent their invasion of freedom of expression.

In the trial of the libel case against the petitioners, the safeguards in the name of freedom of expression should be faithfully applied. Xxxxxxx

G.R. No. 121234 August 23, 1995

HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor. G.R. No. 121245 August 23, 1995 MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. G.R. No. 121297 August 23, 1995 ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO,

the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents.

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 Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, 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 the following: (a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992; (b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation; (e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies;

PUNO, J.: Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a lettercomplaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice 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 two (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 New York and who expressed

(h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged. 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 Regional Trial Court (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 duces tecum. 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 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 United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 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 United States 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. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss

denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counteraffidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his copetitioner Lejano was with him. 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 corespondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court 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. On August 11, 1995, 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 Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, 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. We find the petitions bereft of merit.

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. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus: Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint 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 such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or

as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ." 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 xxx xxx xxx To illustrate, the following are some examples inconsistencies in the two sworn statements of Alfaro: of

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 knew Carmela before the incident in question

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 xxx xxx xxx 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. In Angelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego

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 facie case 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 xxx xxx xxx 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: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang 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 Aling Glo 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? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" 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, "Putang inang mga batang iyon, pinahirapan nila ako." 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, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." 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, "Alam ko na 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 these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: 30 xxx xxx xxx

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. xxx xxx xxx 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 Amelita Tolentino 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: xxx xxx xxx 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: xxx xxx xxx 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 26page 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 determine personally 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 letterrequests 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 issue subpoena duces tecum 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 cause except 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 motu propio 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: xxx xxx xxx 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: xxx xxx xxx 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 of Mooney 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: xxx xxx xxx (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 extrarecord 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. SO ORDERED. Regalado, J., concurs. Mendoza, J., concurs in the result.

Narvasa, C.J., is on leave. Xxxx G.R. No. 121234 August 23, 1995 HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor. G.R. No. 121245 August 23, 1995 MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. G.R. No. 121297 August 23, 1995 ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch

259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents.

PUNO, J.: Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a lettercomplaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice 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 two (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 New York 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 Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, 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 the following: (a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992; (b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation; (e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies;

(h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged. 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 Regional Trial Court (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 duces tecum. 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 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 United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 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 United States 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. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss

denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counteraffidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his copetitioner Lejano was with him. 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 corespondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court 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. On August 11, 1995, 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 Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, 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. We find the petitions bereft of merit.

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. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus: Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint 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 such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he

personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned.

(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ." 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 xxx xxx xxx 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 xxx xxx xxx 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. In Angelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego 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 facie case 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 xxx xxx xxx 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: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang 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 Aling Glo 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? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" 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, "Putang inang mga batang iyon, pinahirapan nila ako." 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, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." 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, "Alam ko na 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 these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: 30 xxx xxx xxx 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. xxx xxx xxx 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 Amelita Tolentino 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: xxx xxx xxx 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: xxx xxx xxx 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 determine personally 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 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.
37

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 letterrequests 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 issue subpoena duces tecum 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 cause except 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 motu propio 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 noninclusion 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: xxx xxx xxx 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: xxx xxx xxx 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 nonbailable 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 of Mooney 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: xxx xxx xxx (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. SO ORDERED. Regalado, J., concurs. Mendoza, J., concurs in the result. Narvasa, C.J., is on leave.

196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice. Petitioners characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's defense or accusation as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial. With respect to petitioners' contention that public respondent judge failed to personally examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and

Separate Opinion

FRANCISCO, J., concurring: The thrust of petitioners' arguments involve the validity and exercise of the prosecutory powers of the State. Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a case to warrant the Court's interference. Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon,

sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or arbitrary. Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of Court enumerate an array of rights upon which an accused can seek protection and solace. To mention a few: he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination, the right to remain silent, to confront and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel preferably of his own choice. These rights are afforded to the accused and not to the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial. I vote to dismiss the petitions. Mendoza, J., concurs.

Separate Opinion FRANCISCO, J., concurring: The thrust of petitioners' arguments involve the validity and exercise of the prosecutory powers of the State. Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a case to warrant the Court's interference. Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice. Petitioners characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary investigation. We have had

occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's defense or accusation as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial. With respect to petitioners' contention that public respondent judge failed to personally examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or arbitrary. Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of Court

enumerate an array of rights upon which an accused can seek protection and solace. To mention a few: he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination, the right to remain silent, to confront and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel preferably of his own choice. These rights are afforded to the accused and not to the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial. I vote to dismiss the petitions. Mendoza, J., concurs.

Xxxxxxxx A.M. No. RTJ-01-1642 March 6, 2002

P/SUPT. SEVERINO CRUZ and FRANCISCO MONEDERO, complainants, vs. JUDGE PEDRO M. AREOLA and BRANCH CLERK OF COURT JANICE YULO-ANTERO, respondents. PUNO, J.: This is an administrative complaint filed by P/Supt. Severino Cruz and Francisco Monedero against Judge Pedro M. Areola of Regional Trial Court, Branch 85, Quezon City and his Branch Clerk of Court for Ignorance of the Law relative to Criminal Case No. Q-99-80446 entitled "People of the Philippines vs. Marilyn A. Carreon" for Estafa pending before the sala of the respondent Judge. The records show that on November 26, 1998, the Evaluation and Preliminary Investigation Bureau of the Office of the Ombudsman issued a Resolution1 recommending the filing of an Information for Estafa as defined and penalized

under Art. 315, par.1(b) of the Revised Penal Code against Marilyn Carreon, an employee of the Land Transportation Office based on the complaint filed by herein complainants. Upon the filing of the Information, the case was docketed as Criminal Case No. Q-99-80446 and was raffled to Branch 85. On January 19, 1999, accused Marilyn Carreon filed with the trial court an Urgent Motion for Reinvestigation. In his Order dated January 25, 1999, the respondent Judge considered the said motion a mere scrap of paper for noncompliance with Sections 4 and 5, Rule 15 of the 1997 Rules of Civil Procedure. On the same date, a Warrant of Arrest was issued by the respondent Judge and released by respondent Branch Clerk of Court. On February 10, 1999, respondent Judge issued another Order deferring the implementation of the Warrant of Arrest against the accused pending the resolution of her Motion for Reinvestigation. On June 16, 1999, respondent Judge granted Carreons Motion for Reconsideration and directed the Branch Trial Prosecutor to conduct a reinvestigation of the case.2 The Office of the City Prosecutor issued a Resolution finding no cogent reason to reverse, modify, or alter the resolution of the Office of the Ombudsman and recommended that the case be set for trial. On September 20, 1999, Carreon filed an Urgent Ex-Parte Motion to Suspend Proceedings and to Hold in Abeyance the Issuance of Warrant of Arrest as she intended to file a Motion for Reconsideration of the Resolution of the Reinvestigation or a petition for review before the Secretary of Justice. In his Order dated September 27, 1999, respondent Judge granted Carreon's motion and suspended further proceedings in the said case.3 On the basis of the foregoing Orders issued by the respondent Judge, complainants filed the instant complaint4 charging both respondent Judge and his Branch Clerk of Court with ignorance of the law. In their Joint Comment,5 respondent Judge manifests that the issuance of a warrant of arrest is not a ministerial function of a judge as he is mandated to determine the existence of probable cause before issuing a warrant. Respondent Branch Clerk of Court, on the other hand, claims that it is a

ministerial duty on her part to release duly signed orders, resolutions and decisions of the presiding judge of her branch. The sole issue in this case is whether or not the orders of respondent Judge and the release thereof by respondent Branch Clerk of Court constitute ignorance of the law.1wphi1.nt On August 6, 2001, we referred the administrative complaint to Justice Romeo A. Brawner of the Court of Appeals for investigation, report and recommendation.6 In compliance with the Court's Resolution, Justice Brawner submitted his Report and Recommendation dated February 5, 2002. In recommending the dismissal of the complaint against the respondents, Justice Brawner elucidates, thus: "Complainants take issue of the fact that although respondent Judge already issued a warrant of arrest, he still deferred its implementation to give way to a reinvestigation of the case on motion of the accused. Moreover, complainants argued, the Office of the City Prosecutor already resolved the issue of the existence of probable cause against the accused three times but respondent Judge still suspended the proceedings pending the petition for review filed by the accused. It must be stressed that the 1987 Constitution requires the judge to determine probable cause personally, making it 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 prosecutors 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 (Mayor Abdula vs. Judge Guiani, G.R. No. 118821, February 18, 2000, 326 SCRA 1). What complainants believe is that there is no longer any reason why the respondent Judge should withhold the issuance of a warrant of arrest considering that the Office of the City Prosecutor already made a finding that there exists probable cause to indict the accused. The determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives. Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused for an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties, which in turn gives his report the presumption of accuracy, nothing less than the fundamental law of the land commands the judge to personally determine probable cause in the issuance of warrants of arrest. A judge fails in this constitutionally

mandated duty if he relies merely on the certification or report of the investigating officer (Mayor Abdula vs. Judge Guiani, supra). As it could not be determined beforehand how cursory or exhaustive a judge's examination of the records should be, the extent of his examination depends on the exercise of his sound discretion as the circumstances of the case require. In the case at bar, the fact that the respondent Judge ordered the reinvestigation of the case does not in any way make him liable for ignorance of the law. In the exercise of his discretion, he believed that a re-investigation was called for and thus held in abeyance the implementation of the warrant of arrest. There is no showing that he abused such discretion as it was part of the performance of his duty under the Constitution and he could not be faulted for it. Much more could we find fault with respondent Branch Clerk of Court who acts under the direction of the presiding Judge and whose only role in this complaint charged against her was to release the duly signed orders of the respondent Judge."7 We agree with the findings and recommendation of the investigating Justice. The 1987 Constitution provides that no 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.8 In numerous instances,9 this Court had ruled that: "x x x 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... 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.1wphi1.nt

xxx

xxx

xxx

SO ORDERED. Davide, Jr., C.J., Kapunan, and Ynares-Santiago, JJ., concur.

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."10 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.11 The arrest of the accused can be ordered only in the event the prosecutor files the case and the judge of the Regional Trial Court finds probable cause for the issuance of a warrant of arrest. It is not obligatory, but merely discretionary, upon the investigating judge to issue a warrant for the arrest of the accused, even after having personally examined the complainant and his witnesses in the form of searching questions and answers, for the determination of whether a probable cause exists and whether it is necessary to arrest the accused in order not to frustrate the ends of justice, is left to his sound judgment or discretion.12 It appears from the records that the challenged Orders issued by the respondent Judge were not at all baseless. The respondent Judge merely exercised his sound discretion in not immediately issuing the warrant of arrest and in suspending further proceedings pending reinvestigation of the case. On her part, respondent Branch Clerk of Court cannot be faulted for performing a ministerial function, that is, releasing Orders duly signed by the respondent Judge. IN VIEW WHEREOF, the administrative complaint against respondents Judge Pedro M. Areola and Branch Clerk of Court Janice Yulo-Antero is DISMISSED for lack of merit.

Xxxxxxx

A.M. No. RTJ-93-964. February 28, 1996]

LEOVIGILDO U. MANTARING, complainant, vs. JUDGE MANUEL A. ROMAN, JR., RTC, Branch 42, Pinamalayan, Oriental Mindoro; and JUDGE IRENEO B. MOLATO, MTC, Bongabon, Oriental Mindoro, respondents.
SYLLABUS 1. REMEDIAL LAW; NEW TRIAL; REMEDY AVAILABLE TO PARTIES DENIED OF A FAIR AND IMPARTIAL TRIAL. There is a remedy available to the party seeking the disqualification of the judge. If he is denied a fair and impartial trial, caused by the judges bias or prejudice, he can ask for a new trial in the interest of justice which will be granted if that is really the case. 2. ID.; CRIMINAL PROCEDURE; SEARCH WARRANT; WARRANT OF ARREST; BASIS FOR ISSUANCE. - The issuance of a search warrant and of a warrant of arrest requires the showing of probabilities as to different facts. In the case of search warrants, the determination is based on

the finding that (1) the articles to be seized are connected to a criminal activity and (2) they are found in the place to be searched. It is not necessary that a particular person be implicated. On the other hand, in arrest cases, the determination of probable cause is based on a finding that a crime has been committed and that the person to be arrested has committed it. 3. ID.; ID.; WARRANT OF ARREST; REQUIREMENTS FOR ISSUANCE. - It is now settled that in issuing warrants of arrest in preliminary investigations, the investigating judge must: (a) have examined in writing and under oath the complainant and his witnesses by searching questions and answers; (b) be satisfied that probable cause exists; and (c) that there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice.

Leovigildo U. Mantaring, Sr. against Judge Ireneo B. Molato, which charges him with harassment. It is alleged that because of the filing of the first complaint against him, respondent Judge Ireneo B. Molato should have inhibited himself from conducting the preliminary investigation of a criminal case considering that the respondents in that case were complainant and his son. Instead, it is alleged, he took cognizance of the case and ordered the arrest of complainant and his son, Leovigildo Mantaring, Jr., out of hatred and revenge for them because of the filing of the first case by the complainant. The Supplemental Complaint was referred to the Office of the Court Administrator which, in a Memorandum dated 25 November 1994, recommended the dismissal of the case for lack of merit. Nonetheless, the Court required the respondent Judge Ireneo B. Molato to comment. In his Comment dated July 6, 1995, respondent judge denies the allegations against him. He avers that on the application by SPO4 Pacifico L. Fradejas, he issued a search warrant which resulted in the seizure from a certain Joel Gamo of a home-made gun, a hand grenade, five live ammunitions for Cal. 38 and three live ammunitions for 12 gauge shotgun; that on August 25, 1993, a complaint for Illegal Possession of Firearms and Ammunition was filed against Joel Gamo in which the herein complainant Leovigildo, Sr. and his son, Leovigildo, Jr., were included; that finding that the house in which the firearms and ammunition had been found was owned by complainant and his son, he concluded that there was probable cause to believe that complainant and his son were guilty of illegal possession of firearms and ammunition and accordingly ordered their arrest. Respondent judge claims that he inhibited himself from the case after he was ordered by the Executive Judge, RTC, Branch 41,

DECISION
MENDOZA, J.:

Respondent Judge Ireneo B. Molato is the presiding judge of the Municipal Trial Court of Bongabon, Oriental Mindoro. On January 7, 1993, an administrative complaint was filed against him and Judge Manuel A. Roman, Jr., presiding judge of the Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch 42, by Leovigildo U. Mantaring, Sr., who charged them with conduct unbecoming of members of the judiciary. On February 21, 1994, after the parties had filed their respective pleadings and supporting documents, this Court dismissed the complaint against the two for lack of merit. The motion for reconsideration filed by complainant was subsequently denied. What is before us now is the Supplemental Complaint filed by

Pinamalayan, Oriental Mindoro. In his Reply complainant contends that as the search warrant was issued only against Joel Gamo and Mantaring, Jr. it was wrong for respondent judge to find probable cause against him on the theory that, as owners of the house in which the firearms and ammunitions were found, they had constructive possession of the same. He likewise contends that respondent judge did not inhibit himself until after the preliminary examination was terminated and the warrant of arrest issued, and only after complainant had filed a petition for inhibition which the Executive Judge found to be well taken. On October 16, 1995, this case was referred to the OCA for reevaluation, report and recommendation. On January 12, 1996, the OCA submitted a Memorandum, recommending dismissal of the supplemental complaint for lack of merit, for the following reasons:
(1) It is erroneous for herein complainant to equate the application for the issuance of search warrant with the institution and prosecution of criminal action in a trial court. (Malaloan vs. Court of Appeals, 232 SCRA 249). Complainant cannot insist that since his name was not included in the search warrant, the house designated to be searched did not belong to him, and that he was not present at the preliminary investigation of witnesses preparatory to the issuance of the questioned warrant of arrest, there was no basis for respondent judge to order his arrest. (2) No taint of irregularity attended the issuance by respondent judge of the warrant of arrest against complainant and his son. Neither was the charge that the warrant of arrest was issued by respondent judge in the spirit of anger, hatred or harassment purposes substantiated.

To begin with, it cannot be contended that complainant Leovigildo Mantaring, Sr. could not be proceeded against simply because he was not included in the search warrant issued against Gamo and Leovigildo Mantaring, Jr., who is apparently his son. The determination of probable cause in preliminary investigations is based solely on the evidence presented by the complainant, regardless of whether or not the respondent in that case is named in the proceedings for a search warrant. As correctly pointed out by, the OCA, the issuance of a search warrant and of a warrant of arrest requires the showing of probabilities as to different facts. In the case of search warrants, the determination is based on the finding that (1) the articles to be seized are connected to a criminal activity and (2) they are found in the place to be searched. It is not necessary that a particular person be implicated. On the other hand, in arrest cases, the determination of probable cause is based on a finding that a crime has been committed and that the person to be arrested has committed it.
i[1]

In this case, the arrest of herein complainant and his son, together with Joel Gamo, was ordered on the basis of respondents finding that the place from where the guns and ammunitions were seized belonged to complainant Leovigildo Mantaring, Sr. and the testimonies of witnesses presented by SPO4 Fradejas. Of course complainant denies that the house in which the firearms and ammunition were found belonged to him and claims that at the time of the search he was in Manila. The provincial prosecutor subsequently dismissed the case against complainant on precisely these grounds, i.e., that the house did not belong to complainant and he was in Manila at the time the search and seizure were conducted. But to say this is not to say that respondent acted arbitrarily or that he abused his powers so as to give ground for administrative disciplinary action against

him. It is only to say that he committed an error of judgment for which complainants remedy is judicial. What we think requires serious consideration is the contention by the complainant that respondent judge should have inhibited himself from conducting the preliminary investigation of the criminal case, considering that the respondent was the present complainant, who had earlier filed an administrative case against the judge and another one. We are not unmindful of the cases in which it was stated that the mere filing of an administrative case against a judge by one of the parties before him is not a ground for disqualifying him from hearing a case. An examination of these cases reveals, however, that the administrative cases were filed during the pendency of the cases, and it is evident that the administrative cases were filed only to force the judge to inhibit himself from the consideration of the case before him. As this Court held, if on every occasion the party apparently aggrieved were allowed to stop the proceedings in order to await the final decision on the desired disqualification, or demand the immediate inhibition of the judge on the basis alone of his being so charged, many cases would have to be kept pending or perhaps there would not be enough judges left to handle all the cases pending in all the courts. On the other hand, there is a remedy available to the party seeking the disqualification of the judge. If he is denied a fair and impartial trial, caused by the judges bias or prejudice, he can ask for a new trial in the interest of justice which will be granted if that is really the case.
ii[2] iii[3] iv[4]

complainant. The impression could not be helped that his action in that case was dictated by a spirt of revenge against complainant for the latters having filed an administrative disciplinary action against the judge. The situation called for sedulous regard on his part for the principle that a party is entitled to nothing less than the cold neutrality of an impartial judge. This circumstance should have underscored for respondent the need of steering clear of the case because he might be perceived, rightly or wrongly, to be susceptible to bias and partiality. For his judgment must not be tainted by even the slightest suspicion of improbity or preconceived interest in order to preserve at all times the faith and confidence in courts of justice by any party to the litigation.
v[5]

Indeed prudence should have made respondent judge heed the admonition that a spotless dispensation of justice requires not only that the decision rendered be intrinsically fair but that the judge rendering it must at all times maintain the appearance of fairness and impartiality.
vi[6]

Moreover, we think it was improper for respondent judge to have issued the warrants of arrest against complainant and his son without any finding that it was necessary to place them in immediate custody in order to prevent a frustration of justice. It is now settled that in issuing warrants of arrest in preliminary investigations, the investigating judge must:
vii[7]

But, in the case at bar, an administrative complaint against respondent and Judge Manuel A. Roman, Jr. had previously been filed and it was paramount that respondent was free from any appearance of bias against, or hostility toward, the

(a) have examined in writing and under oath the complainant and his witnesses by searching questions and answers; (b) be satisfied that probable cause exists; and (c) that there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice.

In this case, respondent judge justified the issuance of the warrant of arrest on the following ground:
In view of the above considerations [referring to the antecedent facts], it is the honest belief and finding of the Court that there is sufficient probable cause that the crime of Illegal Possession of Firearms and Ammunition was committed and that the named three (3) accused Joel Gamo, Leovigildo Mantaring, Sr. and Leovigildo Mantaring Jr. are the ones probably guilty thereof for which reason Warrant of Arrest was issued by undersigned against them.

Judge exercised the necessary prudence and judicial perpecuity [sic] expected of an impartial Judge in the conduct of preliminary investigation before issuance of warrant of arrest. WHEREFORE, respondent judge Ireneo B. Molato is REPRIMANDED and WARNED that commission of similar acts in the future will be dealt with more severely. All other charges are dismissed for lack of merit. SO ORDERED. Regalado (Chairman), Romero and Puno., JJ., concur.

He thus ordered the issuance of warrant of arrest solely on his finding of probable cause, totally omitting to consider the third requirement that there must be a need to place the respondent under immediate custody in order not to frustrate the ends of justice. The framers of the Constitution confined the determination of probable cause as basis for the issuance of warrants of arrest and search warrants to judges the better to secure the people against unreasonable searches and seizures. Respondent judge failed to live up to this expectation by refusing to inhibit himself even when his very impartiality was in question and worse by issuing a warrant of arrest without determining whether or not it was justified by the need to prevent a frustration of the ends of justice. Parenthetically, the records show that the criminal complaints against herein complainant and his son were eventually dismissed by the Provincial Prosecutor, but not without the following parting words: It cannot be gainsaid that respondents Mantarings were greatly prejudiced and suffered damages as a consequence of their inclusion in the criminal complaint. The unfortunate incident could have been avoided had the Honorable Municipal Trial

ii

A.M. No. RTJ-93-964. February 28, 1996]

LEOVIGILDO U. MANTARING, complainant, vs. JUDGE MANUEL A. ROMAN, JR., RTC, Branch 42, Pinamalayan, Oriental Mindoro; and JUDGE IRENEO B. MOLATO, MTC, Bongabon, Oriental Mindoro, respondents. SYLLABUS 1. REMEDIAL LAW; NEW TRIAL; REMEDY AVAILABLE TO PARTIES DENIED OF A FAIR AND IMPARTIAL TRIAL. - There is a remedy available to the party seeking the disqualification of the judge. If he is denied a fair and impartial trial, caused by the judges bias or prejudice, he can ask for a new trial in the interest of justice which will be granted if that is really the case. ID.; CRIMINAL PROCEDURE; SEARCH WARRANT; WARRANT OF ARREST; BASIS FOR ISSUANCE. - The issuance of a search warrant and of a warrant of arrest requires the showing of probabilities as to different facts. In the case of search warrants, the determination is based on the finding that (1) the articles to be seized are connected to a criminal activity and (2) they are found in the place to be searched. It is not necessary that a particular person be implicated. On the other hand, in arrest cases, the determination of probable cause is based on a finding that a crime has been committed and that the person to be arrested has committed it. ID.; ID.; WARRANT OF ARREST; REQUIREMENTS FOR ISSUANCE. - It is now settled that in issuing warrants of arrest in preliminary investigations, the investigating judge must: (a) have examined in writing and under oath the complainant and his witnesses by searching questions and answers; (b) be satisfied that probable cause exists; and (c) that there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice. DECISION MENDOZA, J.: Respondent Judge Ireneo B. Molato is the presiding judge of the Municipal Trial Court of Bongabon, Oriental Mindoro. On January 7, 1993, an administrative complaint was filed against him and Judge Manuel A. Roman, Jr., presiding judge of the Regional Trial Court of Pinamalayan, Oriental Mindoro, Branch 42, by Leovigildo U. Mantaring, Sr., who charged them with conduct unbecoming of members of the judiciary. On February 21, 1994, after the parties had filed their respective pleadings and supporting documents, this Court dismissed the complaint against the two for lack of merit. The motion for reconsideration filed by complainant was subsequently denied. What is before us now is the Supplemental Complaint filed by Leovigildo U. Mantaring, Sr. against Judge Ireneo B. Molato, which charges him with harassment. It is alleged that because of the filing of the first complaint against him, respondent Judge Ireneo B. Molato should have inhibited himself from conducting the preliminary investigation of a criminal case considering that the respondents in that case were complainant and his son. Instead, it is alleged, he took cognizance of the case and ordered the arrest of complainant and his son, Leovigildo Mantaring, Jr., out of hatred and revenge for them because of the filing of the first case by the complainant. The Supplemental Complaint was referred to the Office of the Court Administrator which, in a Memorandum dated 25 November 1994, recommended the dismissal of the case for lack of merit. Nonetheless, the Court required the respondent Judge Ireneo B. Molato to comment. In his Comment dated July 6, 1995, respondent judge denies the allegations against him. He avers that on the application by SPO4 Pacifico L. Fradejas, he issued a search warrant which resulted in the seizure from a certain Joel Gamo of a home-made gun, a hand grenade, five live ammunitions for Cal. 38 and three live ammunitions for 12 gauge shotgun; that on August 25, 1993, a complaint for Illegal Possession of Firearms and Ammunition was filed against Joel Gamo in which the herein complainant Leovigildo, Sr. and his son, Leovigildo, Jr., were included; that finding that the house in which the firearms and ammunition had been found was owned by complainant and his son, he concluded that there was probable cause to believe that complainant and his son were guilty of illegal possession of firearms and ammunition and accordingly

2.

3.

ordered their arrest. Respondent judge claims that he inhibited himself from the case after he was ordered by the Executive Judge, RTC, Branch 41, Pinamalayan, Oriental Mindoro. In his Reply complainant contends that as the search warrant was issued only against Joel Gamo and Mantaring, Jr. it was wrong for respondent judge to find probable cause against him on the theory that, as owners of the house in which the firearms and ammunitions were found, they had constructive possession of the same. He likewise contends that respondent judge did not inhibit himself until after the preliminary examination was terminated and the warrant of arrest issued, and only after complainant had filed a petition for inhibition which the Executive Judge found to be well taken. On October 16, 1995, this case was referred to the OCA for reevaluation, report and recommendation. On January 12, 1996, the OCA submitted a Memorandum, recommending dismissal of the supplemental complaint for lack of merit, for the following reasons: (1) It is erroneous for herein complainant to equate the application for the issuance of search warrant with the institution and prosecution of criminal action in a trial court. (Malaloan vs. Court of Appeals, 232 SCRA 249). Complainant cannot insist that since his name was not included in the search warrant, the house designated to be searched did not belong to him, and that he was not present at the preliminary investigation of witnesses preparatory to the issuance of the questioned warrant of arrest, there was no basis for respondent judge to order his arrest. (2) No taint of irregularity attended the issuance by respondent judge of the warrant of arrest against complainant and his son. Neither was the charge that the warrant of arrest was issued by respondent judge in the spirit of anger, hatred or harassment purposes substantiated. To begin with, it cannot be contended that complainant Leovigildo Mantaring, Sr. could not be proceeded against simply because he was not included in the search warrant issued against Gamo and Leovigildo Mantaring, Jr., who is apparently his son. The determination of probable cause in preliminary investigations is based solely on the evidence presented by the complainant, regardless of whether or not the respondent in that case is named in the proceedings for a search warrant. As correctly pointed out by, the OCA,[1] the issuance of a search warrant and of a warrant of arrest requires the showing of probabilities as to different facts. In the case of search warrants, the determination is based on the finding that (1) the articles to be seized are connected to a criminal activity and (2) they are found in the place to be searched. It is not necessary that a particular person be implicated. On the other hand, in arrest cases, the determination of probable cause is based on a finding that a crime has been committed and that the person to be arrested has committed it. In this case, the arrest of herein complainant and his son, together with Joel Gamo, was ordered on the basis of respondents finding that the place from where the guns and ammunitions were seized belonged to complainant Leovigildo Mantaring, Sr. and the testimonies of witnesses presented by SPO4 Fradejas. Of course complainant denies that the house in which the firearms and ammunition were found belonged to him and claims that at the time of the search he was in Manila. The provincial prosecutor subsequently dismissed the case against complainant on precisely these grounds, i.e., that the house did not belong to complainant and he was in Manila at the time the search and seizure were conducted. But to say this is not to say that respondent acted arbitrarily or that he abused his powers so as to give ground for administrative disciplinary action against him. It is only to say that he committed an error of judgment for which complainants remedy is judicial. What we think requires serious consideration is the contention by the complainant that respondent judge should have inhibited himself from conducting the preliminary investigation of the criminal case, considering that the respondent was the present complainant, who had earlier filed an administrative case against the judge and another one. We are not unmindful of the cases in which it was stated that the mere filing of an administrative case against a judge by one of the parties before him is not a ground for disqualifying him from hearing a case. [2] An examination of these cases reveals, however, that the administrative cases were filed during the pendency of the cases, and it is evident that the administrative cases were filed only to force the judge to inhibit himself from the consideration of the case before him. As this Court held, if on every occasion the party apparently aggrieved were allowed to stop the proceedings in order to await the final decision on the desired disqualification, or demand the immediate inhibition of the judge on the basis alone of his being so charged, many cases would have to be kept pending or perhaps there would not be enough judges left to handle all the cases pending in all the courts. [3] On the other hand, there is a remedy available to the party seeking the disqualification of the judge. If he is denied a fair and impartial trial, caused by the judges bias or prejudice, he can ask for a new trial in the interest of justice which will be granted if that is really the case.
[4]

But, in the case at bar, an administrative complaint against respondent and Judge Manuel A. Roman, Jr. had previously been filed and it was paramount that respondent was free from any appearance of bias against, or hostility toward, the complainant. The impression could not be helped that his action in that case was dictated by a spirt of revenge against complainant for the latters having filed an administrative disciplinary action against the judge. The situation called for sedulous regard on his part for the principle that a party is entitled to nothing less than the cold neutrality of an impartial judge. This circumstance should have underscored for respondent the need of steering clear of the case because he might be perceived, rightly or wrongly, to be susceptible to bias and partiality. For his judgment must not be tainted by even the slightest suspicion of improbity or preconceived interest in order to preserve at all times the faith and confidence in courts of justice by any party to the litigation.[5] Indeed prudence should have made respondent judge heed the admonition that a spotless dispensation of justice requires not only that the decision rendered be intrinsically fair but that the judge rendering it must at all times maintain the appearance of fairness and impartiality.[6] Moreover, we think it was improper for respondent judge to have issued the warrants of arrest against complainant and his son without any finding that it was necessary to place them in immediate custody in order to prevent a frustration of justice. It is now settled[7] that in issuing warrants of arrest in preliminary investigations, the investigating judge must: (a) have examined in writing and under oath the complainant and his witnesses by searching questions and answers; (b) be satisfied that probable cause exists; and (c) that there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice. In this case, respondent judge justified the issuance of the warrant of arrest on the following ground: In view of the above considerations [referring to the antecedent facts], it is the honest belief and finding of the Court that there is sufficient probable cause that the crime of Illegal Possession of Firearms and Ammunition was committed and that the named three (3) accused Joel Gamo, Leovigildo Mantaring, Sr. and Leovigildo Mantaring Jr. are the ones probably guilty thereof for which reason Warrant of Arrest was issued by undersigned against them. He thus ordered the issuance of warrant of arrest solely on his finding of probable cause, totally omitting to consider the third requirement that there must be a need to place the respondent under immediate custody in order not to frustrate the ends of justice. The framers of the Constitution confined the determination of probable cause as basis for the issuance of warrants of arrest and search warrants to judges the better to secure the people against unreasonable searches and seizures. Respondent judge failed to live up to this expectation by refusing to inhibit himself even when his very impartiality was in question and worse by issuing a warrant of arrest without determining whether or not it was justified by the need to prevent a frustration of the ends of justice. Parenthetically, the records show that the criminal complaints against herein complainant and his son were eventually dismissed by the Provincial Prosecutor, but not without the following parting words: It cannot be gainsaid that respondents Mantarings were greatly prejudiced and suffered damages as a consequence of their inclusion in the criminal complaint. The unfortunate incident could have been avoided had the Honorable Municipal Trial Judge exercised the necessary prudence and judicial perpecuity [sic] expected of an impartial Judge in the conduct of preliminary investigation before issuance of warrant of arrest. WHEREFORE, respondent judge Ireneo B. Molato is REPRIMANDED and WARNED that commission of similar acts in the future will be dealt with more severely. All other charges are dismissed for lack of merit. SO ORDERED. Regalado (Chairman), Romero and Puno., JJ., concur.
iii

Xxxxxxxxx

THIRD DIVISION

[A.M. No. RTJ-01-1639. November 29, 2002] CONCERNED CITIZEN OF MADDELA and JUDITH B. ERMITANIO, complainants, vs. JUDGE MA. THERESA DELA TORRE-YADAO, Regional Trial Court, Branch 38, Maddela, Quirino, respondent. [A.M. No. 00-9-427-RTC. November 29, 2002] JUDITH ERMITANIO, complainant, vs. JUDGE MA. THERESA DELA TORRE-YADAO, Regional Trial Court, Branch 38, Maddela, Quirino, respondent. DECISION SANDOVAL-GUTIERREZ, J.: The present administrative cases stemmed from two letter-complaints dated February 23, 2000 and March 1, 2000 filed respectively by a concerned citizen of Maddela and Judith B. Ermitanio against Judge Ma. Theresa dela Torre-Yadao,[1 Regional Trial Court (RTC), Branch 38, Maddela, Quirino. In the anonymous letter-complaint, respondent judge is being denounced for: (1) sleeping with a female employee in her chambers; (2) collecting gasoline allowance from politicians; (3) directing her court personnel to render services in her house at Quezon City; (4) buying narra logs from a litigant and storing them in her chambers; (5) bringing to her house books, furnishings and equipment intended for office use; and (6) reporting at her sala only three days a month. In her letter-complaint, Judith Ermitanio alleged that despite the filing on March 18, 1999 of the Information in Criminal Case No. 38-034 for murder involving the death of her husband, respondent judge failed to issue the corresponding warrant of arrest against accused Michael Badangngayon and Peter Guinannoy. It was only on March 7, 2000, or after one (1) year, when respondent judge came to know that an administrative case had been filed against her, that she issued a warrant of arrest dated March 26, 1999. In her comment on the anonymous letter, respondent judge denied the allegations therein for being false and without basis. She stated that the writer is actually Marilou Cabanatan, a court stenographer in her sala. Respondent judge explained that she sent Marilou memoranda and show-cause letters for her habitual absenteeism and tardiness, disobedience and neglect of duty. Obviously, the latter was motivated by ill will in resorting to an anonymous letter-complaint. On the complaint of Judith Ermitanio, respondent judge explained that after the filing of the Information in Criminal Case No. 38-034, or on March 26, 1999, she issued the corresponding warrant of arrest against the accused, a copy of which was received by the Maddela Police Station on the same day. Considering that the accused could not be apprehended, she issued an order on March 2, 2000 directing that the case be archived and that an alias warrant of arrest be issued. On March 8, 2000, the PNP of Maddela received a copy of the alias warrant. On March 15, 2000, respondent judge received a request for the issuance of an alias warrant of arrest from the Maddela Police Station, but she only noted it in view of the March 2, 2000 order. Due to the seriousness of the allegations in the letter-complaints against respondent judge, the Office of the Court Administrator referred the matter to the National Bureau of Investigation (NBI) for a discreet investigation. In his report dated September 18, 2000, NBI Special Investigator Gerard L. Butale stated that after conducting an investigation, he found that there is reason to believe that respondent judge committed the acts complained of. He, therefore, recommended that an administrative complaint

for serious misconduct and gross inefficiency be filed against her. In a Resolution dated July 11, 2001, this Court referred the case to Justice Eloy R. Bello, Jr. of the Court of Appeals for investigation, report and recommendation. In his Report and Recommendation, Justice Bello stated that no evidence was presented to support the allegations in the anonymous letter-complaint dated February 23, 2000 against respondent judge. Hence, his Report and Recommendation deals mainly with the complaint of Judith Ermitanio, thus: Amidst the conflicting claims of the opposing parties and after a careful consideration and scrutiny of the evidence, particularly the testimonial evidence presented by both parties, this Court finds more reasons to believe the version of the complainant. If indeed, a warrant of arrest had been issued and was served on the PNP Maddela on the date being claimed by the respondent judge, the complainant would not have filed the present administrative case in the first place, since her only complaint is the non-issuance of a warrant of arrest in the case of her husband. If a warrant of arrest had been issued as early as 26 March 1999 and was received by the PNP Maddela on the same date, why was not the complainant told about the said warrant during the times she went to the court to follow up whether a warrant of arrest regarding her husbands case had already been issued? The testimony of Crisostomo Molina, one of the witnesses for the respondent judge, that the complainant never went to the court to follow up the case is not at all believable. That the complainant has been following up the case since April 1999 until March 2000 has been corroborated by the testimony of all the other witnesses for the complainant. Moreover, the fact that the complainant was able to write to Mayor Fred Lim and even went as far as the Supreme Court would show how persistent complainant is in fighting for the cause of her late husband. It would be highly improbable for the complainant not to have gone to the court to follod It has also been established that the complainant had been following up the warrant with the PNP Maddela and the Fiscals Office. If a warrant had already been issued and served on the PNP Maddela, why did the latter seem not to know about the said warrant when the complainant went to their office to follow up the case? If a warrant of arrest has already been issued and delivered to the PNP Maddela as early as 26 March 1999, we do not find any reason or motive on the part of the PNP Maddela, to hide the fact of the issuance of the said warrant from the complainant. Also, why was not Fiscal Orias informed about the said warrant when he also went to the court to follow up the case and why did he not see a copy of the said warrant in the records of the case when he inspected the said records? The logical conclusion that could be drawn from all these is that, maybe, there was no warrant of arrest issued on the date being claimed by the respondent judge, or a warrant of arrest had been issued by the respondent judge on the date being claimed by her, but the same was not timely served on the PNP Maddela. The document being presented by the respondent judge, purporting to be the warrant of arrest dated 26 March 1999, and which was received by the Maddela Police on the same date, deserves scant consideration since the due execution of the same is being refuted by the testimonies of the witnesses for the complainant. Although the respondent judge enjoys the presumption of regularity in the performance of her official duty, this presumption is not, however, conclusive. It is only a disputable presumption, meaning, it is satisfactory only if uncontradicted and may be overcome by other evidence to the contrary. The testimonies presented by the complainant dispelling the regularity of the issuance of the warrant of arrest are more than enough to dispute this legal presumption of regularity in the performance of official duties.

According to the police, they have not received any warrant of arrest regarding the case of People of Philippines vs. Michael Badangayon and Peter Guinannoy until March 2000. P/Chief Insp. Bernardo Baui testified that on 07 March 2000, a warrant of arrest dated 26 March 1999 was received by their office, particularly by SPO4 Librado Raquipiso. He further testified that on 14 March 2000, the respondent judge, together with her staff, went to the police station asking that another warrant of arrest dated 26 March 1999 be received by his office without indicating the date of receipt of the same. He claimed that he refused at first, but consented eventually since they have earlier received the same warrant of arrest on 07 March 2000 indicating the date of receipt, and so he called on SPO1 Honofre Reolalas to receive the same without indicating the same of receipt. The aforesaid testimony was further corroborated by the testimony of SPO1 Honofre Reolalas. What is more telling is the testimony given by Norman Ruabaro, one of the staff of the respondent judge working as docket clerk in Branch 38, RTC, Maddela. He attested to the fact that complainant has been following up her husbands case with the court monthly, dispelling Crisostomo Molinas testimony that the complainant never went to court to follow up the case. But that part of his testimony which is most damaging to the claims of respondent judge and which at the same time further bolstered the allegations of complainant, is that part where he claimed that no warrant of arrest was issued on March 1999 and narrated how three warrants of arrest were issued all in all on March 2000. He claimed that he typed a warrant of arrest in 1999 but the judge refused to sign the same. On March 2000, he prepared a warrant of arrest dated 26 March 1999, he delivered the same to the PNP Maddela on 07 March 2000 and the same was received by SPO4 Raquipiso on the same date. He also testified that OIC Molina was able to retrieve the said warrant from the PNP Maddela as per instructions of the respondent judge and claimed that he hid the same afterwards. He further testified that subsequently, he, together with the respondent judge and the other staff, went to the PNP Maddela to have another warrant of arrest dated 26 March 1999 received by the PNP Maddela without indicating the date and that they succeeded in having the same received by Sr. Police Officer Onofre Reolalas without indicating the date of receipt. Lastly, an alias warrant dated 02 March 2000 was issued. Since the date of receipt by the PNP Maddela of the said warrant of arrest is being refuted by evidence to the contrary, the said warrant of arrest being presented by the judge could at most prove the issuance of the same on 26 March 1999, but not the receipt of the PNP Maddela on the same date. Hence, the logical probability is that the respondent judge issued the subject warrant of arrest, only that the same was not served to the PNP Maddela on time. But being the presiding judge, it is her duty to monitor the due service of legal processes in her court. Thus, she is guilty of simple negligence on the principle of command responsibility.[2 In determining the appropriate penalty, Justice Bello considered the presence of the following circumstances which he believed could mitigate respondents liability: a) this is her first offense since her appointment to the judiciary; b) it was probable that she issued a warrant of arrest on March 26, 1999 but the PNP at Maddela was not furnished with a copy on time; and c) her failure to monitor the service of the warrant of arrest was an oversight on her part considering that she was designated Presiding Judge of RTC, Branch 37 in Bayombong, Nueva Viscaya and RTC, Branch 81 in Quezon City, in addition to her regular duties as Presiding Judge of RTC, Branch 38, Maddela, Quirino. Justice Bello then recommended that respondent be merely reprimanded and warned that a repetition of the same or similar offense will be dealt with more severely. While the findings of the Investigating Justice are well-taken, we do not, however, agree with his conclusion and recommendation. The issue here is whether respondent judge actually issued a warrant for the arrest of the accused in Criminal Case No. 38-034 on March 26, 1999 or after the filing of the Information on March 18, 1999.

Chief Inspector Bernardo Baui and Senior Police Officer Onofre Riolalas, both of the Maddela Police Station, Norman Ruaboro, a docket clerk at the RTC, Branch 38, Maddela, and Ferdinand Orias, Provincial Prosecutor of Quirino, all testified that respondent judge did not issue a warrant of arrest on March 26, 1999, nor did the Maddela Police receive any warrant on that day. We note that they even confirmed the fact that complainant was persistent and assiduous in following up the issuance of the warrant of arrest. If indeed respondent judge issued the warrant on that date, complainant should have been informed about it by the court personnel when she was consistently following it up from April 1999 to March 2000, or a span of one (1) year. Instead, she was always told by the OIC of the court that the judge was not around. Moreover, it did not escape this Courts attention that respondent judge even attempted to cover up her inaction when she issued a warrant of arrest dated March 26, 1999 almost a year after, or on March 7, 2000. Norman Ruaboro, RTC docket clerk, attested to the fact that sometime in March 2000, he prepared a warrant of arrest dated March 26, 1999 and delivered the same on March 7, 2000 to the Maddela PNP. This was received by SPO4 Librado Raquipiso on the same date. However, the warrant was retrieved by OIC Crisostomo Molina upon instructions of respondent judge. Norman further testified that he, together with respondent judge and the other members of her staff, went to Maddela Police Station to file another warrant of arrest dated March 26, 1999 with her instruction that the date of receipt should not be specified. Senior Police Officer Riolalas received the same without indicating the date. Chief Inspector Baui and Senior Police Officer Riolalas corroborated Normans testimony. At this point it bears stressing that it is within the discretion of the judge to issue a warrant for the arrest of an accused in a criminal case.[3 A judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. However, if he finds probable cause, then he is mandated by law to issue such warrant.[4 In such case, the issuance of the warrant of arrest is a matter of extreme urgency to abate the possibility of flight of the accused. Here, while respondent judge found probable cause which justified the issuance of warrant of arrest in Criminal Case No. 38-034, she did not issue the same as mandated by law. As a result, the accused could no longer be apprehended. While we understand that respondent judge at that time was designated Presiding Judge of two other RTC salas (Bayombong, Nueva Viscaya and Quezon City), such fact does not justify her failure to issue a warrant of arrest.[5 She herself admitted that Branch 38 of RTC, Maddela has only a few pending cases. Clearly, she could have acted with dispatch. Her inaction obviously delayed the proceedings in Criminal Case No. 38-034 and undermined complainants trust in the judiciary. We thus hold that respondent judge violated Rule 3.05, Canon 3 of the Code of Judicial Conduct admonishing all judges, among others, to dispose of the courts business promptly. It is the sworn duty of judges to administer justice without undue delay under the time-honored precept that justice delayed is justice denied.[6 The present clogged dockets on all levels of our judicial system cannot be cleared, unless each and every magistrate earnestly, painstakingly and faithfully complies with the mandate of the law. Undue delay in the disposition of cases amounts to a denial of justice which, in turn, brings the courts into disrepute and ultimately erodes the faith and confidence of the public in the judiciary.[7 Hence, failure of judges to promptly dispose of the courts business constitutes gross inefficiency and warrants the imposition of administrative sanctions against them.[8 Time and again, we remind judges of the importance of high sense of duty in the administration of justice. They should dispose of the courts business within the prescribed period, as delay reinforces in the peoples minds that the wheels of justice grind ever so slowly.[9 As this Court

eloquently stated in one case:[10 On the whole, judges ought to be mindful of the crucial role they play in keeping the flames of justice alive and forever burning. Cognizant of this sacred task, judges are duty-bound to vigilantly and conscientiously man the wheels of justice as it grinds though eternity. In a sense, judges are revered as modern-day sentinels, who, like their erudite forerunners, must never slumber, so to speak, in the hour of service to their countrymen. For as lady justice never sleeps, so must the gallant men tasked to guard her domain. Section 9(1), Rule 140 of the Rules of Court, as amended, classifies violation of Supreme Court rules as a less serious charge which, under Section 11(B) of the same Rule, is penalized with either suspension from office without salary and other benefits for not less than one (1) nor more than three (3) months, or a fine of more than P10,000.00 but not exceeding P20,000.00. WHEREFORE, this Court finds Judge Ma. Theresa dela Torre-Yadao liable for violation of Rule 3.05, Canon 3, Code of Judicial Conduct. She is ordered to pay a FINE of TWENTY THOUSAND PESOS (P20,000.00), with a stern warning that a repetition of the same offense will be dealt with more severely. SO ORDERED. Panganiban, (Acting Chairman), Corona, and Carpio-Morales, JJ., concur. Puno, (Chairman), J., on official business. Xxxxxxx
G.R. No. L-64261 December 26, 1984 JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC., petitioners, vs. THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents. Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for petitioners. The Solicitor General for respondents.

ESCOLIN, J.: Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et al. 1 In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents. At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatory injunction, manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned case until final resolution of the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction was rendered moot and academic. Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without having previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised not to mention the public interest generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the purposes of justice require it...". Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six [6] months. Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5 Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus: Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided. The climate of the times has given petitioners no other choice. If they had waited this long to bring their case to court, it was because they tried at first to exhaust other remedies. The events of the past eleven fill years had taught them that everything in this country, from release of public funds to release of detained persons from custody, has become a matter of executive benevolence or largesse Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security Command, they were further encouraged to hope that the latter would yield the desired results. After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them. Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in this petition. Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question. 1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses. 2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b] which states: Which have been used, and are being used as instruments and means of committing the crime of subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon City. The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b]. In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit, And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8 3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized. Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit: Sec. 2. Personal Property to be seized. A search warrant may be issued for the search and seizure of the following personal property: [a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds or fruits of the offense; and [c] Property used or intended to be used as the means of committing an offense. The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the abovequoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants. 4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo 9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner. In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a search warrant. 5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on December 7, 1982. It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the finding of a probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which provides: SEC. 3. ... 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. We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so. Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises above- mentioned and the articles and things above-described were used

and are continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13 In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court in Alvarez case. Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise: 1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets, tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents communication, letters and facsimile of prints related to the "WE FORUM" newspaper. 2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and piurposes of the subversive organization known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and, 3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly, 1] Toyota-Corolla, colored yellow with Plate No. NKA 892; 2] DATSUN pick-up colored white with Plate No. NKV 969 3] A delivery truck with Plate No. NBS 524; 4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and, 5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang." In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be characterized differently. In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of nonconformity" but poses no clear and imminent danger to state security.

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry. Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities ... in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense." It is doubtful however, if sequestration could validly be effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense. Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied the request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus: The President denied a request flied by government prosecutors for sequestration of the WE FORUM newspaper and its printing presses, according to Information Minister Gregorio S. Cendana. On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a detailed inventory of the equipment and all materials in the premises. Cendaa said that because of the denial the newspaper and its equipment remain at the disposal of the owners, subject to the discretion of the court. 19 That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated: 2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close the paper's printing facilities and confiscate the equipment and materials it uses. 21 IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur. Aquino, J., took no part.

Separate Opinions

ABAD SANTOS, J., concurring I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state my own reasons for holding that the search warrants which are the subject of the petition are utterly void. The action against "WE FORUM" was a naked suppression of press freedom for the search warrants were issued in gross violation of the Constitution. The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].) Any search warrant is conducted in disregard of the points mentioned above will result in wiping "out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.) The two search warrants were issued without probable cause. To satisfy the requirement of probable cause a specific offense must be alleged in the application; abstract averments will not suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any determinate provision thereof. The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take possession, among other things, of the following: Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement. The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the Constitution. In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been published in MALAYA which has replaced the former and has the same content but against which no action has been taken. Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the items are subject to the exclusionary rule of evidence. Teehankee, J., concur.

Separate Opinions ABAD SANTOS, J., concurring

I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state my own reasons for holding that the search warrants which are the subject of the petition are utterly void. The action against "WE FORUM" was a naked suppression of press freedom for the search warrants were issued in gross violation of the Constitution. The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].) Any search warrant is conducted in disregard of the points mentioned above will result in wiping "out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.) The two search warrants were issued without probable cause. To satisfy the requirement of probable cause a specific offense must be alleged in the application; abstract averments will not suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any determinate provision thereof. The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take possession, among other things, of the following: Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement. The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the Constitution. In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been published in MALAYA which has replaced the former and has the same content but against which no action has been taken. Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the items are subject to the exclusionary rule of evidence. Teehankee, J., concur.

xxxxxxxxxx

G.R. No. 122092 May 19, 1999 PAPER INDUSTRIES CORPORATION OF THE PHILIPPINES, EVARISTO M. NARVAEZ JR., RICARDO G. SANTIAGO, ROBERTO A. DORMENDO, REYDANDE D. AZUCENA, NICEFORO V. AVILA, FLORENTINO M. MULA, FELIX O. BAITO, HAROLD B. CELESTIAL, ELMEDENCIO C. CALIXTRO, CARLITO S. LEGACION, ALBINO T. LUBANG, JEREMIAS I. ABAD and HERMINIO V. VILLAMIL, petitioners, vs. JUDGE MAXIMIANO C. ASUNCION, Presiding Judge, Branch 104, Regional Trial Court of Quezon City; STATE PROSECUTOR LEO B. DACERA III; and the SPECIAL OPERATIONS UNIT OF THE PNP

TRAFFIC MANAGEMENT COMMAND, respondents.

PANGANIBAN, J.: To preserve and to uphold the constitutional right against unreasonable searches and seizures, the requisites for the issuance of search warrant must be followed strictly. Where the judge fails to personally examine the applicant for a search warrant and the latter's witnesses, or where the witnesses testify on matters not of their own personal knowledge, the search warrant must be struck down. The Case Before us is a petition for Certiorari and Prohibition 1 praying for (1) the nullification of Search Warrant No. 799 (95) and the Orders dated March 23, 1993 and August 3, 1995, issued by the Regional Trial Court (RTC), Branch 104, of Quezon City; 2 and (2) the issuance of temporary restraining order (TRO) or an injunction against State Prosecutor Leo B. Dacera III, ordering him to desist proceeding with IS No. 95-167. In its October 23, 1995 Resolution, 3 this Court issued the TRO prayed for and required the respondents to comment on the said Petition. On December 20, 1995, Respondent PNP Traffic Management Command filed its 31-page Opposition 4 to the Petition, together with 90 pages of annexes. 5 On February 22, 1996, the Office of the Solicitor General filed its Comment 6 agreeing with petitioners that the writs prayed for must be granted. After petitioners filed a Reply to the Opposition, the Court gave due course to the Petition and required the parties to submit their respective memoranda. In view of the contrary opinion of the Office of the Solicitor General, the Court, in its February 5, 1997 Resolution, 7 required State Prosecutor Leo B. Dacera to prepare the memorandum for the public respondents. After issuing a show-cause order to Dacera on June 23, 1997, 8 the Court in its September 24, 1997 Resolution gave him a non-extendible period ending on October 31, 1997 within which to file the required memorandum. In view of Dacera's manifestation that he was only a nominal party and that he had yet to receive the records of the case from the PNP, the Court, in its December 8, 1999 Resolution, ordered the Special Operations Unit (SOU) of the PNP Traffic Management Command to file its memorandum within thirty days from notice; "otherwise, the petition will be deemed submitted for decision." 9 Even after the expiration of the said period, the required pleading was not yet received by this Court. Hence, this Court considered Respondent SOU's refusal/failure to submit its memorandum as a waiver of its privilege to do so. The Facts On January 25, 1995, Police Chief Inspector Napoleon B. Pascua applied for a search warrant before the said RTC of Quezon City, staring: 10 1. That the management of Paper Industries Corporation of the Philippines, located at PICOP compound, Barangay Tabon, Bislig, Surigao del Sur, represented by its Sr. Vice President Ricardo G[.] Santiago, is in possession or ha[s] in [its] control high powered firearms, ammunitions, explosives, which are the subject of the offense, or used or intended to be used in committing the offense, and which . . . are [being kept] and conceal[ed] in the premises herein described. 2. That a Search Warrant should be issued to enable any agent of the law to take possession and bring to this Honorable Court the following described properties: Seventy (70) M16 Armalite rifles cal. 5.56, ten (10) M16 US rifles, two (2) AK-47 rifle[s], two (2) UZI submachinegun[s], two (2) M203 Grenade Launcher[s] cal. 40mm, ten (10) cal.45 pistol[s], ten (10) cal.38 revolver[s], two (2) ammunition reloading machine[s], assorted ammunitions for said calibers of firearms and ten (10) handgrenades.

Attached to the application 11 were the joint Deposition of SPO3 Cicero S. Bacolod and SPO2 Cecilio T. Morito, 12 as well as a summary of the information and the supplementary statements of Mario Enad and Felipe Moreno. After propounding several questions to Bacolod, Judge Maximiano C. Asuncion issued the contested search warrant, 13 the pertinent portion of which reads: It appearing to the satisfaction of the undersigned, after examining under oath, SPO3 Cicero S. Bacolod, that there is probable cause to believe that the management of Paper Industries Corporation of the Philippines, located at PICOP Compound, Barangay Tabon, Bislig, Surigao del Sur, represented by its Sr. Vice President Ricardo G. Santiago, has in its possession or control the following: Seventy (70) M16 Armalite rifles cal 5.56 Ten (10) M14 US rifles Two (2) AK-47 rifle(s) Two (2) UZI submachinegun[s] Two (2) M203 Grenade Launcher[s] cal. 40mm. Ten (10) cal 45 pistol[s] Ten (10) cal. 38 revolver[s] Two (2) ammunition reloading machine[s] Assorted ammunitions for said calibers of firearms Ten (l0) handgrenades in violation of the Provisions of PD 1866 (Illegal Possession of Firearms, Ammunition and Explosives), and the same should be seized and brought before this Court. NOW, THEREFORE, you are hereby authorized to make an immediate search daytime between 8:00 a.m. [and] 4:00 p.m. of the aforementioned premises and to seize and bring the articles above-described and make an immediate return there[of] 14 On February 4, 1995, the police enforced the search warrant at the PICOP compound and seized the following: 15 MAKE/TYPE CALIBER SERIAL NUMBER BRAND 01 M16 Rifle 5.56 RP 175636 Elisco 02 M16 Rifle 5.56 RP 175636 (Tampered) Elisco 03 M16Rifle 5.56 RP 171702 Elisco 04 M16Rilfe 5.56 Defaced Elisco 05 M16Rifle 5.56 RP174253 (Tampered) Elisco 06 M16Rifle 5.56 RP173627 (Tampered) Elisco

07 M16Rifle 5.56 RP171337 Elisco 08 M16Rifle 5.56 RP171114 Elisco 09 M16Rifle 5.56 RP171114 (Tampered) Elisco 10 M16Rifle 5.56 RP171167 (Tampered) Elisco 11 M16Rifle 5.56 170881 (Tampered) Elisco 12 M16Rifle 5.56 RP170897 Elisco 13 M16Rifle 5.56 RP171509 Elisco (With pending case-Casaway Case) 14 M16Rifle 5.56 RP171754 Elisco 15 M16Rifle 5.56 RP170881 (Tampered) Elisco 16 M16Rifle 5.56 RP174637 Elisco 17 M16Rifle 5.56 RP171366 Elisco 18 M16Rifle 5.56 RP1714637 (Tampered) Elisco 19 M16Rifle 5.56 RP174610 Elisco 20 M16Rifle 5.56 RP171367 (Tampered) Elisco 01 M14 7.62 1499694 Elisco 02 M14 7.62 889163 Elisco 01 BAR Cal. 30 865975 Royal 01 Carbine M1 Cal. 30 384181 US Carbin 02 Carbine M1 Cal. 30 998201 US Carbin 01 Garand M1 Cal. 30 1194008 Springfield 02 Garand M1 Cal. 30 3123784 Springfield 01 Shotgun 12 Gauge H359704 Omega 02 Shotgun 12 Gauge 9211 Homemade (Paltik) MAGAZINE ASSEMBLY QTY. 01 M16 (long) 29 pcs.

02 M16 (short) 48 pcs. 03 Carbine M1 171 pcs. 04 BAR 19 pcs. LIVE AMMUNITION QTY. 01 M16 2,023 rounds 03 Carbine M1 276 rounds 04 M-60 Cal. 7.62 1,800 rounds 05 M1 Garand 1,278 rounds 06 Rifle Grenade 11 rounds 07 Hand Grenade 4 pcs. AMMO DAM POST NO. 24 MAKE/TYPE CALIBER SERIAL NUMBER BRAND 01 M16 5.56 171425 (Tampered) Gyno Corp. 02 Machine Pistol .22 651 (Tampered) Landmann MAGAZINE ASSEMBLY QTY. 01 M1 (short) 3 pcs. 02 M16 (long) 1 pc. 03 M14 8 pcs. 04 Clip M1 Garand 3 pcs. 05 Mag Assy Cal .22 1 pc. LIVE AMMUNITION QTY. 01 M16 73 rounds 02 M14 160 rounds 03 M1 Garand Cal .30 30 rounds 04 Rifle Grenade 1 round MANAGEMENT INTEL/INVEST UNIT MAKE/TYPE CALIBER SERIAL NUMBER BRAND 01 M16Rifle 5.56 RP 171725 Elisco

02 M16Rifle 5.56 RP 170799 (Tampered) Elisco 03 M16 5.56 RP 132320 Elisco 04 Machine 9 MM 54887 Intratec Pistol 05 Three (3) 12 Gauge Surit-Surit (H) Shotguns MAGAZINE ASSEMBLY QTY. 01 M16 (long) 3 pcs. 02 M16 (short) 4 pcs. 03 Intratec 1 pc. 04 US Carbine (defective) 2 pcs. LIVE AMMUNITION QTY. 01 M16 147 rds. 02 Cal .30 5 rounds 03 12 gauge Shotgun 7 rounds 04 Carbine 5 rounds 05 Rifle grenade (AVA-0051-84/0056-84) 2 rounds 06 9 MM 30 rounds NEW ARMORY POST NO. 16 MAKE/TYPE CALIBER SERIAL NUMBER BRAND 01 Shotgun 12 Gauge A359910 Armscor 02 Shotgun 12 Gauge A359716 Armscor 03 Shotgun 12 Gauge A359706 Armscor 04 Shotgun 12 Gauge A359707 Armscor 05 Shotgun 12 Gauge 1036847 Armscor 06 Shotgun 12 Gauge A359702 Armscor 07 Shotgun 12 Gauge A359732 Armscor 08 Shotgun 12 Gauge A359728 Armscor

09 Shotgun 12 Gauge A359708 Armscor 10 Shotgun 12 Gauge A359711 Armscor 11 Shotgun 12 Gauge A359723 Armscor 12 Shotgun 12 Gauge A359713 Armscor 13 Shotgun 12 Gauge 1031271 Armscor 14 Shotgun 12 Gauge A262338 SB 15 Shotgun 12 Gauge A261619 SB 16 Shotgun 12 Gauge Defaced Not Indicated LIVE AMMUNITION QTY. 01 12 GAUGE shotgun 306 rds. 02 M16 2,349 rds. MAGAZINE ASSEMBLY QTY. 01 Carbine (defective) 76 pcs. 02 Cal. 22 -do- 16 pcs 03 M16 (long-defective) 2 pcs. 04 M16 (short-defective) 2 pcs. 05 Thompson (defective) 8 pcs. 06 Shotgun 12 Gauge (defective) 17 pcs. 07 BAR (defective) 2 pcs. Believing that the warrant was invalid and the search unreasonable, the petitioners filed a "Motion to Quash" 16 before the trial court. Subsequently, they also filed a "Supplemental Pleading to the Motion to Quash" and a "Motion to Suppress Evidence." 17 On March 23, 1995, the RTC issued the first contested Order which denied petitioners' motions. 18 On August 3, 1995, the trial court rendered its second contested Order 19 denying petitioners' Motion for Reconsideration. 20 Hence, this recourse to this Court on pure questions of law. Issues In their Memorandum, petitioners submit the following grounds in support of their cause: 21 I

Petitioners respectfully submit that Judge Asuncion has committed grave abuse of discretion or has exceeded his jurisdiction in refusing to quash Search Warrant No. 799(95). Probable cause [has] not . . . been sufficiently established and partaking as it does of the nature of a general warrant. II Petitioners respectfully submit that Judge Asuncion has committed grave abuse of discretion or has exceeded his jurisdiction in refusing to quash Search Warrant No. 799(95) on the ground that it was unlawfully served or implemented. III Petitioners respectfully submit that State Prosecutor Dacera is acting with grave abuse of discretion his jurisdiction in continuing with the proceedings in IS No. 95-167 on the basis of illegally seized evidence. In the main, petitioners question the validity of the search warrant. As a preliminary matter, we shall also discuss respondents' argument that the Petition should be dismissed for raising factual questions. This Court's Ruling The petition is meritorious. Preliminary Issue: Alleged Factual Questions In their Opposition, respondents argue that the Petition should be dismissed for raising questions of fact, which are not proper in a petition for certiorari under Rule 65. They maintain that the Petition merely assails the "factual basis for the issuance of the warrant and regularity of its implementation. 22 This argument is not convicting. It is settled that "there is a question of fact when the doubt arises as to the truth or the falsity of alleged facts." 23 In the present case, petitioner do not question the truth of the facts as found by the judge; rather, they are assailing the way in which those findings were arrived at, a procedure which they contend was violative of the which those Constitution and the Rules of Court. We agree that the Petition raises only question of law, which may be resolved in the present case. Main Issue: Validity of the Search Warrant The fundamental right against unreasonable and searches and seizures and the basic conditions for the issuance of a search warrant are laid down in Section 2, Article III of the 1987 Constitution, which reads: 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. (Emphasis supplied) Consistent with the foregoing constitutional provision, Section 3 and 4, Rule 126 of the Rules of Court, detail the requisites for the issuance of a valid search warrant as follows:
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Sec. 3. Requisite 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. More simply stated, the requisites of a valid search warrant are: (1) probable cause is present; (2) such presence is determined personally by the judge; (3) the complainant and the witnesses he or she may produce are personally examined by the judge, in writing and under oath or affirmation; (4) the applicant and the witnesses testify on facts personally known to them; and (5) the warrant specifically describes the place to be searched and the things to be seized. 25 In the present case, the search warrant is invalid because (1) the trail court failed to examine personally the complainant and the other deponents; (2) SPO3 Cicero Bacolod, who appeared during the hearing for the issuance or the search warrant, had no personal knowledge that petitioners were not licensed to possess the subject firearms; and (3) the place to be searched was not described with particularity. No Personal Examination of the Witnesses In his Order dated March 23, 1995, the trial judge insisted that the search warrant was valid, stating that "before issuing the subject warrant, the court propounded searching questions to the applicant and the witnesses in order to determined whether there was probable cause . . .." 26 (Emphasis supplied.) This was supported by the Opposition to the Motion to Quash, which argued that "it is erroneous for PICOP to allege that the Honorable Court did not propound searching questions upon applicant P/Chief Inspector Napoleon Pascua and the witnesses he produced." 27 The records, however, proclaim otherwise. As earlier stated, Chief Inspector Pascua's application for a search warrant was supported by (1) the joint Deposition of SPO3 Cicero S. Bacolod and SPO2 Cecilio T. Moriro, (2) a summary of information and (3) supplementary statements of Mario Enad and Felipe Moreno. Except for Pascua and Bacolod however, none of the aforementioned witnesses and policemen appeared before the trial court. Moreover, the applicant's participation in the hearing for the issuance of the search warrant consisted only of introducing Witness Bacolod: 28 COURT: Where is the witness for this application for search warrant? P/Chief Insp. NAPOLEON PASCUA: SPO3 CICERO S. BACOLOD, Your Honor. COURT: Swear the witness. STENOGRAPHER: (To the witness) Please raise your right hand, sir. Do you swear to tell the truth, the whole truth and nothing but the truth before this Court? WITNESS: Yes Ma'am.

STENOGRAPHER: Please state your name, age, civil status, occupation, address and other personal circumstances. WITNESS: SPO3 Cicero S. Bacolod, 42 years old, married, policeman, c/o Camp Crame, Quezon City, SOU, TMC. xxx xxx xxx Chief Inspector Pascua was asked nothing else, and he said nothing more. In fact, he failed even to affirm his application. Contrary to his statement, the trial judge failed to propound questions, let alone probing questions, to the applicant and to his witnesses other than Bacolod (whose testimony, as will later be shown, is also improper). Obviously, His Honor relied mainly on their affidavits. This Court has frowned on this practice in this language: 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 procedure 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. xxx xxx xxx 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. 29 Bacolod's Testimony Pertained Not to Facts Personally Known to Him Bacolod appeared during the hearing and was extensively examined by the judge. But his testimony showed that he did not have personal knowledge that the petitioners, in violation of PD 1866, were not licensed to possess firearms, ammunitions or explosives. In his Deposition, he stated: Q How do you know that said the properties were subject of the offense? A Sir, as a result of our intensified surveillance and case build up for several days, we gathered informations from reliable sources that subject properties [which] are in their possession and control [are] the herein described properties subject of the offense. (Summary of Information dtd Oct. '94. SS's of Mario Enad and Felipe Moreno both dtd 30 Nov '94 are hereto attached).
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When questioned by the judge, Bacolod stated merely that he believed that the PICOP security guards had no license to possess the subject firearms. This, however, does not meet the requirement that a witness must testify on his personal knowledge, not belief. He declared: Q This is an application for Search Warrant against Paper Industries Corporation located at PICOP Compound Barangay Tabon, Bislig, Surigao del Sur. How come that you have knowledge that there are illegal firearms in that place?

A At Camp Crame, Quezon City, I was dispatched by our Commander to investigate the alleged assassination plot of Congressman Amante. Q In the course of your investigation, what happened? A We found out that some of the suspects in the alleged assassination plot are employees of PICOP. Q Know[ing] that the suspects are employees of PICOP, what did you do? A We conducted the surveillance in that area inside the compound of PICOP in Tabon. Q What did you find . . .? A I found . . . several high-powered firearms. Q How were you able to investigate the compound of PICOP? A I exerted effort to enter the said compound. Q By what means? A By pretending to have some official business with the company. Q So, in that aspect, you were able to investigate the compound of PICOP? A Yes, sir. Q What did you f[i]nd . . .? A I found . . . several high-powered firearms being kept in the compound of PICOP. Q Where are those located? A Sir, there are firearms kept inside the ammo dam. Q Inside the compound? A Located inside the compound. Q Then what? A Others, sir, were kept in the security headquarters or office. Q You mean to say that this Paper Industries Corporation has its own security guards? A Yes, they call it Blue Guards. Q You mean to say that their own security guards guarded the PICOP? A Yes, sir.

Q So, it is possible that the firearms used by the security guards are illegally obtained? A I believe they have no license to possess high-powered firearms. As far as the verification at FEU, Camp Crame, [is concerned,] they have no license. (Emphasis supplied.) Q Have you investigated the Blue Guards Security Agency? A I conducted the inquiry. Q What did you find out? A They are using firearms owned by PICOP. Q Using firearms owned by PICOP? A Yes, sir. Q You mean to say that this Blue Guard Security Agency has no firearms of their own? A No high-powered firearms. Q By the way, Mr. Witness, what kind of firearms have you seen inside the compound of PICOP? A There are M-16 armalite rifles. Q What else? A AK-47, armalites, M-203 Grenade Launcher, M-14 US rifles, .38 caliber revolvers, .45 caliber pistols, several handgrenades and ammos. 31 (Emphasis supplied) Moreover, Bacolod failed to affirm that none of the firearms seen inside the PICOP compound was licensed. Bacolod merely declared that the security agency and its guard were not licensed. He also said that some of the firearms were owned by PICOP. Yet, he made no statement before the trail court PICOP, aside from the security agency, had no license to possess those firearms. Worse, the applicant and his witnesses inexplicably failed to attach to the application a copy aforementioned "no license" certification from the Firearms and Explosives Office (FEO) of the PNP or to present it during the hearing. Such certification could have been easily obtained, considering that the FEO was located in Camp Crame where the unit of Bacolod was also based. In People v. Judge Estrada, 32 the Court held: The facts and circumstances that would show probable cause must be the best evidence that could be obtained under the circumstances. The introduction of such evidence is necessary in cases where the issue is the existence of the negative ingredient of the offense charged for instance, the absence of a license required by law, as in the present case and such evidence is within the knowledge and control of the applicant who could easily produce the same. But if the best evidence could not be secured at the time of the application, the applicant must show a justifiable reason therefor during the examination by the judge. Particularity of the Place to Be Searched

In view of the manifest objective of the against unreasonable search, the Constitution to be searched only to those described in the warrant. 33 Thus, this Court has held that "this constitutional right [i]s the embodiment of a spiritual concept: the belief that to value the privacy of home and person and to afford it constitutional protection against the long reach of government is no less than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards." 34 Additionally, the requisite of particularity is related to the probable cause requirement in that, at least under some circumstances, the lack of a more specific description will make it apparent that there has not been a sufficient showing to the magistrate that the described items are to be found in particular place. 35 In the present case, the assailed search warrant failed to described the place with particularly. It simply authorizes a search of "the aforementioned premises," but it did not specify such premises. The warrant identifies only one place, and that is the "Paper Industries Corporation of the Philippines, located at PICOP Compound, Barangay Tabon, Bislig[,] Surigao del Sur." The PICOP compound, however, is made up of "200 offices/building, 15 plants, 84 staff houses, 1 airstrip, 3 piers/wharves, 23 warehouses, 6 POL depots/quick service outlets and some 800 miscellaneous structures, all of which are spread out over some one hundred fifty-five hectares." 36 Obviously, the warrant gives the police officers unbridled and thus illegal authority to search all the structures found inside the PICOP compound. 37 In their Opposition, the police state that they complied with the constitutional requirement, because they submitted sketches of the premises to be searched when they applied for the warrant. They add that not one of the PICOP Compound housing units was searched, because they were not among those identified during the hearing. 38 These arguments are not convincing. The sketches allegedly submitted by the police were not made integral parts of the search warrant issued by Judge Asucion. Moreover, the fact that the raiding police team knew which of the buildings or structures in the PICOP Compound housed firearms and ammunitions did not justify the lack of particulars of the place to be searched. 39 Otherwise, confusion would arise regarding the subject of the warrant the place indicated in the warrant or the place identified by the police. Such conflict invites uncalled for mischief or abuse of discretion on the part of law enforces. Thus, in People v. Court of Appeals, 40 this Court ruled that the police had no authority to search the apartment behind the store, which was the place indicated in the warrant, even if they intended it to be the subject of their application. Indeed, the place to be searched cannot be changed, enlarged or amplified by the police, viz.: . . . In the instant case, there is no ambiguity at all in the warrant. The ambiguity lies outside the instrument, arising from the absence of a meeting of the minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same; and what was done was to substitute for the place that the Judge had written down in the warrant, the premises that the executing officers had in their mind. This should not have been done. It [was] neither fair nor licit to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched although not that specified in the warrant [was] exactly what they had in view when they applied for the warrant and had demarcated in the supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself, not what the applicants had in their thoughts, or had represented in the proofs they submitted to the court issuing the warrant. Indeed, following the officers' theory, in the context of the facts of this case, all four (4) apartment units at the rear of Abigail's Variety Store would have been fair game for a search. The place to be searched, as set out in the warrant, cannot be amplified or modified by the officers' own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. Such a change is proscribed by the Constitution which requires inter alia the search warrant to particularly describe the place to be searched as well as the persons or things to be seized. It would concede to police officers the power of choosing the place to be searched, even if it not be that delineated in the warrant. It would open wide the door to abuse of the search process, and grant to officers executing a search warrant that discretion which the Constitution has precisely removed from them. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police

officers conducting the search. (Emphasis supplied.) Seized Firearms and Explosives Inadmissible in Evidence As a result of the seizure of the firearms, effected pursuant to Search Warrant No. 799 (95) issued by the respondent judge, the PNP filed with the Department of Justice a complaint docketed as IS No. 95-167 against herein petitioners for illegal possession of firearms. State Prosecutor Dacera, to whom the Complaint was assigned for preliminary investigation, issued a subpoena requiring petitioners to file their counteraffidavits. Instead of complying with the subpoena, petitioners asked for the suspension of the preliminary investigation, pending the resolution of their motion to quash the search warrant. They argued, as they do now, that the illegal obtained firearms could not be the basis of the criminal Complaint. Their motion was denied. A subsequent Motion for Reconsideration met the same fate. In the present Petition for Certiorari and Prohibition, petitioners assert that "State Prosecutor Dacera cannot have any tenable basis for continuing with the proceedings in IS No. 95-167." 41 Because the search warrant was procured in violation of the Constitution and the Rules of Court, all the firearms, explosives and other materials seized were "inadmissible for any purpose in any proceeding." 42 As the Court noted in an earlier case, the exclusion of unlawfully seized evidence was "the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures." 43 Verily, they are the "fruits of the poisonous tree." Without this exclusionary rule, the constitutional right "would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means evidence means of coercing evidence . . .." 44 In the present case, the complaint for illegal possession of firearms is based on the firearms and other materials seized pursuant to Search Warrant No. 799 (95). Since these illegally obtained pieces of evidence are inadmissible, the Complainant and the proceedings before State Prosecutor Dacera have no more leg to stand on. This Court sympathizes with the police effort to stamp out criminality and to maintain peace and order in the country; however, it reminds the law enforcement authorities that they must do so only upon strict observance of the constitutional and statutory rights of our people. Indeed, "there is a right way to do the right thing at the right time for the right reason." 45 WHEREFORE, the instant petition for certiorari and prohibition is hereby GRANTED and Search Warrant No. 799 (95) accordingly declared NULL and VOID. The temporary restraining order issued by this Court on October 23, 1995 is hereby MADE PERMANENT. No pronouncement as to costs. SO ORDERED. Romero, Vitug and Gonzaga-Reyes, JJ., concur. Purisima, J., did not participate in the deliberations.

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