SUPREME COURT DECISIONS

Search for www.chanrobles.com

PLEASE CLICK HERE FOR THE LATEST ➔ SUPREME COURT DECISIONS

CONCURRING AND DISSENTING OPINION

PANGANIBAN, J.:

I concur with the well-written ponencia of Mr. Justice Leonardo A. Quisumbing insofar as it declares null and void the Sandiganbayan's warrant of arrest against Petitioner Cojuangco, but beg to disagree with the majority view that despite the nullity of the arrest order, the graft court still acquired jurisdiction over petitioner. I respectfully submit that all proceedings and orders issued by the Sandiganbayan, especially its Resolution dated February 20, 1995, barring petitioner from leaving the country without its prior approval, are likewise void for want of jurisdiction. hence, the case should be remanded to Sandiganbayan for a proper determination of whether a warrant of arrest could be issued pursuant to the Constitution and upon satisfaction of the requisites therefor as laid down in Ho v. People.¹

Nullity of the Warrant of Arrest

With an analysis of case law as backdrop, the Court en banc indeed categorically declared in Ho that a judge cannot issue a warrant of arrest with only the prosecutor's findings and recommendation as bases for determining probable cause. No less than the Constitution mandates in no uncertain terms that "no x x x 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 xxx."² This clause unequivocally means that the judge must make his own determination -- independent of that of the prosecutor -- of whether there is probable cause to issue a warrant of arrest, based on the complainant's and his witnesses' accounts, if any.

In the instant case, it is undisputed that Respondent Sandiganbayan had considered only two documents in determining whether an order of arrest should be issued against the petitioner. These documents were (a) the June 2, 1992 Resolution of the panel of investigators of the Office of the Ombudsman, recommending the filing of an information and (b) the June 16, 1995 Memorandum of the Office of the Special Prosecutor, finding that no prejudicial question existed for the suspension of the criminal case.

Pursuant to our ruling in Ho, these documents do not suffice as basis for the judge or court to make a personal and independent determination of the existence of probable cause. Supporting evidence other than the report and recommendation of the investigators and the special prosecutor should have been examined by the respondent court. In view of this lapse, the warrant issued for the arrest of Petitioner Cojuangco is null and void.

Sandiganbayan Without Jurisdiction over Petitioner

As a consequence of the nullity of the warrant of arrest, the Sandiganbayan did not acquire jurisdiction over the petitioner.

The posting of a bail bond by the petitioner despite the nullity or irregularity of the issuance of the warrant for his arrest should not be equated with "voluntary appearance" as to cloak the respondent court with jurisdiction over his person. Truly, his "appearance" in court was not "voluntary." It should be noted that immediately upon learning of the Information and the issuance of the warrant, petitioner filed an "Opposition to [the] Issuance of [a] Warrant of Arrest with Motion for Leave to File Motion for Reconsideration of [the] Ombudsman['s] Resolutions." Said Opposition was based on the inadequacy of the respondent court's basis for determining probable cause. It was essentially an express and continuing objection to the court's jurisdiction over his person.

When petitioner posted his bail bond, he expressly manifested at the same time that such was "without prejudice" to his Opposition.³ Subsequent thereto, he also filed a Memorandum in Amplification of said Opposition. When the graft court refused to recall the warrant,⁴ petitioner moved for a reconsideration. And following the filing by the Office of the Ombudsman, after reinvestigation, of a manifestation that there was no probable cause to charge petitioner, he moved for the dismissal of the case on the ground that "with the reversal of the earlier findings of the Ombudsman of probable cause, there was therefore nothing on record before the respondent Sandiganbayan which would warrant the issuance of a warrant of arrest and the assumption of jurisdiction over the instant case." Petitioner's actions more than conveyed his persistent objection to his arrest and, consequently, to the court's authority over his person.

Furthermore, when he was arraigned, it was solely for the purpose of accommodating his request to travel, in view of the Sandiganbayan order barring him from leaving the country without its prior approval. His "conditional arraignment," in the words of the Sandiganbayan itself, was "subject to the condition that if petitioner is exonerated at the preliminary investigation, the arraignmentmis set aside." Moreover, it was "being undertaken solely to accommodate the accused in his request to travel pending determination of probable cause against him at reinvestigation."⁵cräläwvirtualibräry

Clearly, therefore, in posting for bail and seeking permission to travel abroad, the petitioner merely made special appearances in order to obtain immediate urgent reliefs, without necessarily waiving the graft court's want of jurisdiction.⁶ He merely wanted to avoid incarceration, as he hardly had any choice but to secure the court's consent whenever he left the country to attend to his personal and business concerns. Otherwise, petitioner would have been effectively rendered immobile and worthless until the Sandiganbayan chose to resolve his case. And, as borne by the records, for three years said court practically sat on his case (reconsideration of the denial of his Opposition). Under the circumstances, petitioner's actions should not be construed as a waiver of his right to object to the nullity of his arrest. With all due respect, I submit that to rule otherwise as the majority did is most unfair and unjust, because an accused could be indefinitely detained as a result of the trial court's expedient of merely sitting on the objection to the issuance of the warrant.

I submit that the case should be remanded to the Sandiganbayan. The respondent court may require the prosecutor to submit evidence on file sufficient for the former to determine probable cause for the issuance of an arrest warrant; or the latter himself may voluntarily submit such evidence gathered during his investigation.

This procedure may appear cumbersome and unduly harsh on the prosecution, but the Constitution commands it. The Court, as the guardian of the basic law, is thus left with no choice but to enforce the provision.

WHEREFORE, I vote to GRANT the petition to DECLARE the Sandiganbayan to be without jurisdiction over Petitioner Cojuangco in Criminal Case No. 22018 and to REMAND the case to said court for a proper determination of whether a warrant of arrest should be issued, pursuant to the Constitution and the requisites laid down in Ho v. People.

Endnotes:

---

¹ 280 SCRA 365, October 9, 1997. The cases discussed included Soliven v. Makasiar (167 SCRA 394, November 14, 1988), People v. Inting (187 SCRA 788, July 25, 1990), Lim Sr. v. Felix (194 SCRA 292, February 19, 1991), Allado v. Diokno (232 SCRA 192, May 5, 1994) and Roberts Jr. v. Court of Appeals (254 SCRA 307, March 5, 1996). The pertinent ruling in Ho is as follows:

"First, x x x 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 of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer."

² Art. III.(Italics supplied.)

³ Manifestation dated February 22, 1995.

⁴ Sandiganbayan Resolution dated April 3, 1995.

⁵ Sandiganbayan Order dated May 25, 1995. (Emphasis supplied.)

⁶ See BAC manufacturing and Sals Corp. v. Court of Appeals, 200 SCRA 130, August 2, 1991.