EN
BANC
VICENTE
LIM, SR. and MAYOR SUSANA LIM,
Petitioners,
G. R. Nos. 94054-57
February 19, 1991
-versus-
HON.
NEMESIO S. FELIX and HON. ANTONIO
ALFANE,
Respondents.
_____________________________________________
JOLLY
T. FERNANDEZ, FLORENCIO T. FERNANDEZ,
JR.,
NONILON A. BAGALIHOG, MAYOR NESTOR C. LIM
and MAYOR ANTONIO KHO,
Petitioners,
G. R. Nos. 94266-69
February 19, 1991
-versus-
HON.
NEMESIO S. FELIX and PROSECUTOR
ANTONIO
C. ALFANE,
Respondents.
D
E C I S I O N
GUTIERREZ, JR., J.:
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.cralaw:red
An investigation
of the incident then followed.
Thereafter, and for the purpose of preliminary investigation, the
designated
investigator, Harry O. Tantiado, TSg., of the PC Criminal Investigation
Service at Camp Bagong Ibalon, Legazpi City, filed an amended complaint
with the Municipal Trial Court of Masbate accusing, among others,
Vicente
Lim, Sr., Mayor Susana Lim of Masbate [petitioners in G. R. Nos.
9405457],
Jolly T. Fernandez, Florencio T. Fernandez, Jr., Nonilon A. Bagalihog,
Mayor Nestor C. Lim and Mayor Antonio Kho [petitioners in G. R. Nos.
94266-69]
of the crime of multiple murder and frustrated murder in connection
with
the airport incident. The case was docketed as Criminal Case No. 9211.cralaw:red
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].
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.cralaw:red
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 he
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.cralaw:red
On October 30,
1989, Fiscal Alfane filed with
the Regional Trial Court of Masbate, four [4] separate informations of
murder against the twelve [12] accused with a recommendation of no
bail.
On November 21, 1989, petitioners Vicente Lim, Sr. and Susana Lim filed
with Us a verified petition for change of venue. [Case No. A. M. No.
89-11-1270-MTC,
formerly, G. R. Nos. 90587-90] On December 14, 1989, We issued an
En Banc Resolution authorizing the change of venue from
the
Regional
Trial Court of Masbate to the Regional Trial Court of Makati to avoid a
miscarriage of justice, to wit:
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. 94054-57;
Emphasis supplied]
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:
To issue writs of [1] Preliminary
Mandatory
Injunction
ordering and directing the respondent judge to recall/set aside and/or
annul the legal effects of the warrants of arrest without bail issued
against
and served upon herein petitioners Jolly T. Fernandez, Florencio T.
Fernandez,
Jr. and Nonilon Bagalihog and release them from confinement at PC-CIS
Detention
Center, Camp Crame, Quezon City; and [2] Temporary Restraining Order
effective
immediately and continuing until further orders from this Court,
ordering
the respondent judge or his duly authorized representatives or agents,
to cease and desist from enforcing or implementing the warrants of
arrest
without bail issued against petitioners Mayors Nestor C. Lim and
Antonio
T. Kho.
The primary
issue in these consolidated petitions
centers on whether or not a judge may issue a warrant of arrest without
bail by simply relying on the prosecution's certification and
recommendation
that a probable cause exists.
This is not a
novel question. In the case of Placer
v. Villanueva (126 SCRA 463 [1983]), We ruled that a judge may rely
upon
the fiscal's certification of the existence of probable cause and, on
the
basis thereof, issue a warrant of arrest. However, the certification
does
not bind the judge to come out with the warrant of arrest. This
decision
interpreted the "search and seizure" provision of the 1973 Constitution
which provides:
No search warrant or warrant of arrest
shall
issue except upon probable cause to be determined by the judge, or such
other responsible officer as may be authorized by law, after
examination
under oath or affirmation of the complainant and the witnesses he may
produce.
We ruled:
The issuance of a warrant is not a mere
ministerial
function; it calls for the exercise of judicial discretion on the part
of the issuing magistrate. This is clear from the following provisions
of Section 6, Rule 112 of the Rules of Court:
Warrant of arrest, when issued.-
If the judge be satisfied from the preliminary examination conducted by
him or by the investigating officer that the offense complained of has
been committed and that there is reasonable ground to believe that the
accused has committed it, he must issue a warrant or order for his
arrest.
Under this section, the judge must
satisfy
himself
of the existence of probable cause before issuing a warrant or order of
arrest. If on the face of the information the judge finds no probable
cause,
he may disregard the fiscal's certification and require the submission
of the affidavits of witnesses to aid him in arriving at a conclusion
as
to the existence of a probable cause. This has been the rule since U.S.
v. Ocampo [18 Phil. 1] and Amarga v. Abbas [98 Phil. 739]. And this
evidently
is the reason for the issuance by respondent of the questioned orders
of
April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of
the prosecution witnesses and other evidence which, as a matter of
long-standing
practice had been attached to the information filed in his sala,
respondent
found the informations inadequate bases for the determination of
probable
cause. For as the ensuing events would show, after petitioners had
submitted
the required affidavits, respondent wasted no time in issuing the
warrants
of arrest in the case where he was satisfied that probable cause
existed.
The case of
Soliven v. Makasiar [167 SCRA 393 [19881]
was decided after the effectivity of the 1987 Constitution. We stated:
The second issue raised by petitioner
Beltran,
calls for an interpretation of the constitutional provision on the
issuance
of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the
people to
be secure in their persons, houses, papers and effects against
unreasonable
searches and seizures of whatever nature and for any purpose shall be
inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable
cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may
produce,
and particularly describing the place to be searched and the persons or
things to be seized.
The addition of the word "personally"
after the
word "determined" and the deletion of the grant of authority by the
1973
Constitution to issue warrants to "other respondent officers as may be
authorized by law", has apparently convinced petitioner Beltran that
the
Constitution now requires the judge to personally examine the
complainant
and his witnesses in his determination of probable cause for the
issuance
of arrest. This is not an accurate interpretation.
What the Constitution underscores is the
exclusive
and personal responsibility of the issuing judge to satisfy himself of
the existence of probable cause. In satisfying himself of the existence
of probable cause for the issuance of a warrant of arrest, the judge is
not required to personally examine the complainant and his witnesses.
Following
established doctrine and procedures, he shall: [1] personally evaluate
the report and the supporting documents submitted by the fiscal
regarding
the existence of probable cause and, on the basis thereof, issue a
warrant
of arrest; or [2] if on the basis thereof he finds no probable cause,
he
may disregard the fiscal's report and require the submission of
supporting
affidavits of witnesses to aid him in arriving at a conclusion as to
the
existence of probable cause.
Sound policy
dictates this procedure, otherwise judges
would be unduly laden with the preliminary examinations and
investigation
of criminal complaints instead of concentrating on hearing and deciding
cases filed before their courts.
The decision in
People v. Honorable Enrique B.
Inting, et al. [G. R. No. 88919, July 25, 1990], reiterated the above
interpretation
of "personal" determination by the Judge:
We emphasize important features of the
constitutional
mandate that "no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge." [Article
III, Section 2, Constitution].
First, the determination of probable
cause is
a function of the Judge. It is not for the Provincial Fiscal or
Prosecutor
nor for the Election Supervisor to ascertain. Only the Judge and the
Judge
alone makes this determination.
Second, the preliminary inquiry made by a
Prosecutor
does not bind the Judge. It merely assists him to make the
determination
of probable cause. The Judge does not have to follow what the
Prosecutor
presents to him. By itself, the Prosecutor's certification of probable
cause is ineffectual. It is the report, the affidavits, the transcripts
of stenographic notes [if any], and all other supporting documents
behind
the Prosecutor's certification which are material in assisting the
Judge
to make his determination.
And third, Judges and Prosecutors alike
should
distinguish the preliminary inquiry which determines probable cause for
the issuance of a warrant of arrest from the preliminary investigation
proper which ascertains whether the offender should be held for trial
or
released. Even if the two inquiries are conducted in the course of one
and the same proceeding, there should be no confusion about the
objectives.
The determination of probable cause for the warrant of arrest is made
by
the Judge. The preliminary investigation proper, whether or not there
is
reasonable ground to believe that the accused is guilty of the offense
charged and, therefore, whether or not he should be subjected to the
expense,
rigors and embarrassment of trial is the function of the
Prosecutor.
The Court made
this clear in the case of Castillo
v. Villaluz (171 SCRA 39 [19891):
Judges of Regional Trial Courts [formerly
Courts
of First Instance] no longer have authority to conduct preliminary
investigations.
That authority, at one time reposed in them under Sections 13, 14 and
16,
Rule 112 of the Rules of Court of 1964, [See Sec. 4, Rule 108, Rules of
Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments
on the Rules, 1980 ed., Vol. 4, pp. 115-116] was removed from them by
the
1985 Rules on Criminal Procedure, effective on January 1, 1985,
[promulgated
on November 11, 1984] which deleted all provisions granting that power
to said Judges. We had occasion to point this out in Salta v. Court of
Appeals, 143 SCRA 228, and to stress as well certain other basic
propositions,
namely: [1] that the conduct of a preliminary investigation is "not a
judicial
function but part of the prosecution's job, a function of the
executive";
[2] that whenever "there are enough 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, 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.cralaw:red
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.cralaw:red
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.cralaw:red
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.cralaw:red
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 Judge 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.cralaw:red
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 before hand 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.cralaw:red
It is worthy to
note that petitioners Vicente
Lim, Sr. and Susana Lim presented to the respondent Judge documents of
recantation of witnesses whose testimonies were used to establish a prima
facie case against them. Although, the general rule is that
recantations
are not given much weight in the determination of a case and in the
granting
of a new trial [Tan Ang Bun v. Court of Appeals, et al. G. R. No.
L-47747,
February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 (1972)], the
respondent
Judge before issuing his own warrants of arrest should, at the very
least,
have gone over the records of the preliminary examination conducted
earlier
in the light of the evidence now presented by the concerned witnesses
in
view of the "political undertones" prevailing in the cases. Even
the Solicitor General recognized the significance of the recantations
of
some witnesses when he recommends a reinvestigation of the cases, to
wit:
It must be pointed out, however, that
among the
documents attached to this Petition, are affidavits of recantation
subsequently
executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed
by one, Camilo Sanano, father of the complainant's witnesses, Renato
and
Romeo Sanano. It was precisely on the strength of these earlier written
statements of these witnesses that the Municipal Trial Court of Masbate
found the existence of a prima facie case against petitioners
and
accordingly recommended the filing of a criminal information.
Evidently,
the same written statements were also the very basis of the "Fiscal's
Certification"
since the attached affidavits of recantation were not yet then
available.
Since the credibility of the prosecution witnesses is now assailed and
put in issue and, since the petitioners have not yet been arraigned, it
would be to the broader interest of justice and fair play if a
reinvestigation
of this case be had to secure the petitioners against hasty prosecution
and to protect them from an open and public accusation of crime, from
the
trouble, expense and anxiety of a public trial, and also to protect the
State from useless and expensive trials [Salonga v. Paño G.R.
No.
59524, February 18,1985]. (Rollo of G. R. Nos. 94054-56, pp. 200-201).
We reiterate
that in making the required personal
determination, a Judge is not precluded from relying on the evidence
earlier
gathered by responsible officers. The extent of the reliance depends on
the circumstances of each case and is subject to the Judge's sound
discretion.
However, the Judge abuses that discretion when having no evidence
before
him, he issues a warrant of arrest. Indubitably, the respondent Judge
committed
a grave error when he relied solely on the prosecutor's certification
and
issued the questioned Order dated July 5, 1990 without having before
him
any other basis for his personal determination of the existence of a
probable
cause.
WHEREFORE, the
instant petitions are hereby granted.
The questioned Order of respondent Judge Nemesio S. Felix of Branch 56,
Regional Trial Court of Makati dated July 5, 1990 is declared null and
void and set aside. The Temporary Restraining Orders and Preliminary
Mandatory
Injunction issued in the instant petitions are made permanent.cralaw:red
SO ORDERED.
Fernan, C.J.,
Narvasa, Melencio-Herrera,
Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Griño-Aquino,
Medialdea and Regalado, JJ., concur.
Sarmiento, J., took no part. |