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[G.R. No. 93884.June 19, 2001]

EDUARDO COJUANGCO, JR. vs. SANDIGANBAYAN

EN BANC

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 19 2001.

G.R. No. 93884 (Eduardo M. Cojuangco, Jr. vs. Sandiganbayan and The People of the Philippines.)

This case evolved from the special civil action for certiorari docketed as G.R. No. 91741, entitled People of the Philippines v. Eduardo Cojuangco, Jr., and the Sandiganbayan. The latter case was a petition for the annulment of the Resolution of the Sandiganbayan denying the issuance of a warrant for the arrest of Eduardo Cojuangco, Jr. (hereafter COJUANGCO).

COJUANGCO was earlier charged, in an information docketed as Criminal Case No. 14161 filed before the Sandiganbayan on 27 November 1989, with violation of Section 4(b) 1 This provision of law states:SEC. 4 Prohibition on Private Individuals.-.(b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 3 hereof." in relation to Section 3(h) 2 This provision of law states: "SEC. 3. Corrupt Practices of Public Officers. - In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: . (h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest." of the Anti-Graft and Corrupt Practices Act in his capacity as a private individual and being then a close associate of former President Ferdinand E. Marcos.He allegedly acted as a "nominee and/or dummy of the latter in acquiring shares of stock in the Bulletin Today Publishing Company and Liwayway Publishing Inc., both private corporations, thereby inducing and/or causing then President Ferdinand E. Marcos to directly or indirectly, participate in the management and control of and/or have pecuniary of financial interest in the said corporations."

On 28 November 1989, COJUANGCO filed an opposition to his arrest 3 Rollo, G.R. No. 91741, 109-118. on the ground, inter alia, that the certification appended to the information does not show that the requisite preliminary investigation has been conducted.He also made an ex parte offer to deposit such amount of bail as the court would consider appropriate, which would be considered automatically as bail should his objection to the warrant of arrest be overruled.That same day, the Sandiganbayan allowed him to deposit the amount of P100,000 as bail should the court overrule his objection to his arrest.

The next day, the PCGG filed with the Sandiganbayan an ex parte motion for the issuance of a warrant of arrest "on the basis of the evidence on record." 4 Rollo, G.R. No. 91741, 106-108.

On 19 January 1990, the Sandiganbayan issued a Resolution 5 Per Associate Justice Conrado M. Molina, with Associate Justices Cipriano A. del Rosario and Nathanael M. Grospe concurring.Rollo, G.R. No. 91741, 208-219. denying the PCGG's motion for the issuance of a warrant of arrest, which was then assailed before this Court through a petition for certiorari docketed as G.R. No. 91741.

In the Resolution 6 Rollo, G.R. No. 91741, 380-387. of 29 March 1990, this Court, finding no grave abuse of discretion on the part of the Sandiganbayan, dismissed the petition but gave the PCGG sixty (60) days within which to conduct further proceedings "if it [was] so minded."

The PCGG, through Atty. Domingo C. Palarca, Officer-in-Charge of the PCGG's Security and Investigation Department, thereafter conducted a reinvestigation of the case and submitted the following addition documentary evidence:

Annex 1 - Bulletin Publishing Corporation audited financial statement

Annex 2 - Summary of Bulletin stockholders with their correspondent Interest as of 22 August 1985

Annex 3 - Board Resolution of 16 May 1985

Annex 4 - Philtrust check no. 332816 dated 14 June 1985 for P2,337,279.00 issued to Cesar Zalamea by the Bulletin Publishing Corporation

Annex 5 - Philtrust check No. 332817 dated 14 June 1985 for P2,337,279.00 issued to Jose Y. Campos by the Bulletin Publishing Corporation

Annex 6 - Philtrust check No. 332818 dated 14 June 1985 for P2,337,551.00 issued to Accused Eduardo Cojuangco, Jr. by the Bulletin Publishing Corporation

Annex 7 - Philtrust check No. 333853 dated 23 August 1985 for P3,505,918.50 issued to Zalamea by the Bulletin Publishing Corporation

Annex 8 - Philtrust check No. 333854 dated 23 August 1985 for P3,505,918.50 issued to Campos by the Bulletin Publishing Corporation

Annex 9 - Philtrust check No. 333855 dated 23 August 1985 for P3,506,326.50 issued to Cojuangco by the Bulletin Publishing Corporation

Annex 10 - Philtrust check No. 490479 dated 23 August 1985 for P5,843.197.50 issued to Zalamea by the Bulletin Publishing Corporation

Annex 11 - Philtrust check No. 490478 dated 23 August 1985 for P5,843,197.50 issued to Campos by the Bulletin Publishing Corporation

Annex 12 - Philtrust check No. 490477 dated 23 August 1985 for P5,843,877.50 issued to Cojuangco by the Bulletin Publishing Corporation 7 Rollo, G.R. No. 93884, 53-70.

In their Resolution dated 21 May 1990, PCGG Prosecutors Nelson A. Salva and Reynaldo G. Ros underscored the importance of those documents as follows:

According to Atty. Palanca, based on the analysis conducted by the Research Department and the Security and Investigation Department of PCGG, Annexes 4 to 12 were subsequently endoresed [sic] by the said payees for deposit to Security Bank and Trust Company (SBTC) Account No. 0620-272685 under account name 299 which refers to letters BII of the alphabet but corresponding to the first letters of the nicknames of former President Marcos' children Bongbong, Imee and Irene, and the said Account name 299 has been found and verified to be part of the series of the 77 accounts with Security Bank and Trust Company which belonged to ex-President Marcos.

Atty. Palanca emphasized the fact that these additional documentary evidence clearly proved that Cesar Zalamea, Jose Y. Campos and accused Eduardo M. Cojuangco, Jr. acted as dummies of Ferdinand Marcos on his acquisition of Bulletin shares. 8 Id., 48-49.

The prosecutors thus recommended the amendment of the information in Criminal Case No. 14161 to conform to the evidence.As amended, the information pertinently states that COJUANGCO, conspiring and confederating with Cesar Zalamea and Jose Y. Campos, "did...act and continue to act as nominee and/ or dummy of the said former President in the [Bulletin Publishing Corporation] thereby knowingly causing former President Marcos to maintain his beneficial ownership of the controlling interest in, and to directly and indirectly participate in the management and control of the said corporation in which the latter was prohibited by the Constitution and the law from having any financial or pecuniary interest." 9 Id., 45.

On 25 May 1990, the PCGG filed before the Sandiganbayan in Criminal Case No. 14161 a "Manifestation with Ex-parte Motion to Admit Amended Information."On 8 June 1990, the Sandiganbayan issued a Resolution 10 Per Associate Justice Sabino R. de Leon, Jr., (now Associate Justice of the Supreme Court), with Associate Justices Conrado M. Molina and Augusto A. Amores concurring. Rollo, G.R. No. 93884, 34. admitting the Amended Information and directing the issuance of a warrant for the arrest of accused COJUANGCO.

Consequently, on 20 June 1990, COJUANGCO filed in G.R. No. 91741 a "Motion to Order Dismissal of Information in 'People vs. Eduardo Cojuangco' Criminal Case No. 14161 (Sandiganbayan) and to Annul Warrant of Arrest Issued in said Case." 11 Rollo, G.R. No. 91741, 419-425.Before petitioner People of the Philippines could file a comment on the said motion as required by the Resolution of 1 June 1990, 12 Rollo, G.R. No. 91741, 475-A. COJUANGCO filed a "Verified Motion for Issuance of Writ of Preliminary Injunction/Temporary Restraining Order/Status Quo Order." 13 Id., 476-490.On 28 June 1990, the Court issued a Temporary Restraining Order (TRO) enjoining the Sandiganbayan to cease and desist from conducting further proceedings in Criminal Case No. 14161. 14 Id., 497.

On 10 July 1990, upon COJUANGCO's motion and payment of docket fees, this Court considered his "Motion to Order Dismissal of Information..." as a petition for certiorari under Rule 65 of the Rules of Court, and ordered that the said motion be amended accordingly. 15 Rollo, G.R. No. 93884, 91.Thus, the said motion spawned the instant special civil action of certiorari that was accordingly docketed as G.R. No. 93884.

In his Memorandum, petitioner synthesized the issued he is offering for resolution by this Court as follows:

1. Was the Resolution of the Sandiganbayan dated June 8, 1990 in Criminal Case No. 14161 supported by probable cause as required under Article III, Section 2 of the Constitution?Did such Resolution comply with and conform to the Resolution of this Honorable Court dated March 29, 1990, in G.R. No. 91741?

2. Does petitioner's admission to bail estop him from questioning the validity of the Amended Information and the Warrant of Arrest?Did it validate all the previous acts of the respondents? 16 Id., 144-145.

We shall first address the second issue to determine whether petitioner COJUANGCO could still question, through this petition, the validity of the Amended Information and the warrant of arrest, considering that he had applied for bail and had been admitted thereto.

Petitioner's allegation that his admission to bail "does not estop him from questioning the validity of the Amended Information and the Warrant of Arrest" 17 Id., 179. is supported by a new provision, Section 26, Rule 114 of the Revised Rules on Criminal Procedure, which took effect on 1 December 2000.That provision reads:

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. - An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea.The court shall resolve the matter as early as practicable but not later than the start of the trial of the case.

The aforequoted procedural or remedial rule, being favorable to petitioner as an accused, can validly be given retroactive effect. 18 See Aris (Phil.) Inc. v. NLRC, 200 SCRA 246, 256-257 [1991].

Parenthetically, this new provision in Rule 114 is actually a reprise 19 In such cases as Luna v. Plaza (135 Phil. 329 [1968], Zacarias v. Cruz (141 Phil. 417 [1969]), Callanta v. Villanueva (77 SCRA 377 [1977]), and the Court held that the posting of bail bond constituted a waiver of any irregularity attending the arrest of a person or of any objection on the preliminary investigation conducted prior to the issuance of a warrant of arrest (See: HERRERA, TREATISE ON HISTORICAL DEVELOPMENT AND HIGHLIGHTS OF AMENDMENTS OF RULES ON CRIMINAL PROCEDURE 75 [2001]). of the 1931 ruling in People v. Red 20 55 Phil. 706, 711 [1931]. that an accused who, in filing bail bond, was "prompted by the sheer necessity of not remaining in detention," did not in any way waive "any right, such as the summary examination of the case" before his detention.

It must be recalled that COJUANGCO deposited the amount of P100,000 "to serve as bail in case his objection to the issuance of warrant of arrest were overruled." 21 Rollo, G.R. No. 93884, 10.Since said amount was deposited soon after the filing of the original information in Criminal Case No. 14161 and that, until now, petitioner has not entered his plea, the aforequoted rule is undoubtedly applicable to this case.Hence, COJUANGCO's admission to bail does not bar him from assailing the legality of the warrant for his arrest.

Now on the first issue.In resolving the same, the Court has to define once again the parameters of the power of the court in the issuance of a warrant of arrest.

The pertinent provision of the Bill of Rights of the Constitution on the issuance of warrants of arrest states:

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.(Emphasis supplied.)

Expecting diverse interpretations of the word "personally" in this constitutional provision, as early as 30 June 1987, this Court issued Circular No. 12 addressing the use of that term in Section 2 of the Bill of Rights.For clarity, the guidelines set forth in that circular state:

1. The purpose of a preliminary investigation is only to determine probable cause.As stressed in Hashim vs. Boncan, 71 Phil. 216, January 31, 1931 "x x x the investigating judge or prosecuting officer acts upon probable cause and reasonable belief, not upon proof beyond reasonable doubt.The occasion is not for the full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only as may engender well-grounded belief that an offense has been committed and that the accused is probably guilty thereof.When all this is fulfilled, the accused will not be permitted to cast about for fancied reasons to delay the proceedings; the time to ask for more is at the trial. x x x."

2. Both under the 1935 and 1973 Constitutions, the settled rulings of our jurisprudence, which rulings the drafters of the 1987 Constitution were certainly cognizant of and took into consideration, is that the judge, in the determination of the existence of probable cause for the issuance of a warrant of arrest, may rely upon the certification of the fiscal that he has conducted a preliminary investigation and that a probable cause exists.(See Hashim vs. Boncam, supra; and Placer vs. Villanueva, 126 SCRA 463, citing U.S. vs. Ocampo, 18 Phil. 1 and Amarga, vs. Abbas, 98 Phil. 739)

3. The insertion of the word 'personally' for the judge's determination of the existence of probable cause in the 1987 Constitution serves to underscore the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of a probable cause.He is proscribed from delegating this task of investigation to any other person.He must do it personally.

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

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

(b) If on the face of the information he finds no probable cause, he may disregard the fiscal's certification and require the submission of the supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a probable cause.

5. The Supreme Court admonition should be heeded that while the Constitution does confer upon the judge the power to conduct preliminary examination preparatory to issuing a warrant of arrest, sound policy reasons should curb the propensity to make use of such competence, since judges of the CFI and CCC (now RTC) " should not encumber themselves with the preliminary examination and investigation of criminal complaints" but should "concentrate on hearing and deciding criminal cases filed before their courts."(Collector of Customs vs. Villaluz and five other cases jointly decided, 71 SCRA 356 [1976]).

Strict compliance with these guidelines is hereby enjoined.

In the celebrated consolidated cases of Soliven v. Makasiar, Beltran v. Makasiar and Beltran v. Executive Secretary, 22 167 SCRA 393 [1988]. this Court elucidated further on the judge's personal determination of probable cause for the issuance of a warrant of arrest as follows:

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.(Italics supplied.)

While a judge need not personally examine the complainant and his witnesses he has to "personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence." 23 Webb v. De Leon, 317 Phil. 759, 793 [1995].Thus, underscoring that the determination of probable cause is a function of the judge and not the prosecutor, this Court in People v. Inting 24 187 SCRA 788, 792 [1990]. said that the prosecutor's certification of probable cause is "ineffectual."The judge must evaluate "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."Where only the information, amended information, and Joint Resolution were the bases for the judge's issuance of a warrant of arrest, the Court held that the judge had no "records or evidence supporting the prosecutor's finding of probable cause." 25 Roberts, Jr. v. Court of Appeals, 324 Phil. 568, 609 [1996].

It is not required that the issuing judge should categorically state in his resolution that he personally determined the existence of probable cause.It is enough that it may clearly be gleaned from the resolution directing the issuance of the warrant that he performed his duty in accordance with his constitutional mandate on the matter.To be sure, the number of hours spent by the judge in poring over the records and evaluating the evidence on the existence of probable cause is immaterial as far as compliance with his constitutional duty is concerned. 26 Webb v. De Leon, supra note 24, at 793-794.

In the case at bar, the information was filed on 25 May 1990 and the Resolution directing the issuance of a warrant of arrest was issued on 8 June 1990 or two weeks later.There certainly was enough time for the Sandiganbayan to study thoroughly the records at its disposal to determine probable cause for the issuance of such warrant.

In its Resolution of 8 June 1990 the Sandiganbayan said:

In the light of Circular No. 12 dated June 30, 1987 of the Supreme Court (guideline on the issuance of warrants or arrest) and relying on the Certification of the PCGG Chairman at the bottom of said Amended Information regarding the existence of probable cause against the accused, and considering the Resolution dated May 21, 1990 (Annex 'A' of subject Manifestation and Ex-Parte Motion to Admit Amended Information) of PCGG reinvestigating Prosecutors Nelson A. Salva and Reynaldo G. Ros, together with the Resolution thereon of the PCGG thereto attached, adopting and concurring in the findings and conclusions of the said reinvestigating prosecutors, and considering the additional evidence adduced during the said reinvestigation (pp. 303-328, Record), the issuance of a warrant of arrest appears to be the logical step to follow. 27 Rollo, G.R. No. 92884, 36. (Emphasis supplied).

This shows that in ordering the issuance of a warrant for the arrest of COJUANGCO, the Sandiganbayan was guided by the Court's Circular No. 12 dated 30 June 1987, which allows a mere reliance on the prosecutor's certification as to the existence of probable cause.Nonetheless, the Sandiganbayan went beyond the PCGG's certification.As can be gleaned from the assailed Resolution, it reviewed the Resolution of the PCGG reinvestigating prosecutors to ascertain whether the same was supported by the evidence adduced during the reinvestigation.Among such evidence were the dividend checks issued by the Bulletin Publishing Corporation in favor of COJUANGCO, Zalamea and Campos, which were found to have been subsequently endorsed for deposit to an account in the Security Bank and Trust Company earlier verified to be part of the series of accounts belonging to former President Marcos.

The Sandiganbayan's own evaluation of the prosecutors' resolution and of the evidence adduced during the reinvestigation confirmed the prosecutors' determination on the existence of probable cause that COJUANGCO acted as a dummy of Marcos in the ownership of the shares in the Bulletin Publishing Corporation, "thereby causing former President Marcos to maintain his beneficial ownership of the controlling interest in, and to directly and indirectly participate in the management and control of, the said corporation in which the latter was prohibited by the Constitution and the law from having any financial or pecuniary interest." 28 Rollo, G.R. No. 93884, 45.Thus, no grave abuse of discretion can be ascribed to the Sandiganbayan when it issued the Resolution of 8 June 1990.

As we have in our resolution of 29 March 1990 in G.R. No. 91741, the finding of probable cause is a matter addressed to the sound discretion of the judge, the Sandiganbayan in this case, a discretion this Court may not interfere with in the absence of a demonstration of a grave abuse thereof.

We cannot pass upon petitioner's position that since there was no probable cause that President Marcos violated the Anti-Graft Law, there was neither probable cause that he (COJUANGCO) committed the crime charged in the "persecutory" Amended Information and therefore Criminal Case No. 14161 should be dismissed.

In Ho v. People, 29 345 Phil. 597, 611 [1997]. this Court enunciated that in criminal prosecution, probable cause is determined by both the prosecutor and the judge for different purposes.thus:

[T]he determination of probable cause by the prosecutor is for the 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.

The prosecution's determination of probable cause to hold an accused for trial is not for this Court to review initially.Any question on such determination should be addressed to the proper forum within the executive department with the end in view of exhausting administrative remedies first.Only when the Secretary of the Department of Justice shall have reviewed the finding of probable cause to warrant the filing of an information 30 See Marcelo v. Court of Appeals, 235 SCRA 39, 50 [1994]. may this Court pass upon such question through a special civil action.This Court cannot encroach upon the executive sphere of jurisdiction and order the trial court to dismiss a case on the ground of lack of probable cause to warrant the filing of an information.

Neither is there merit in petitioner's contention that the Resolution dated 29 March 1990 in G.R. No. 91741 was "effectively reversed by respondents." 31 Rollo, G.R. No. 93884, 173.In so contending, petitioner adverts to the observation of this Court in said Resolution that petitioner had been "singled out" for prosecution, while his co-nominees Zalamea and Campos have not been charged.As stated in the Amended Information, Zalamea and Campos had been granted immunity form prosecution for providing invaluable information. 32 Id., 45.The validity of the PCGG's act of granting immunity to Zalamea and Campos, not being subject of this petition, should stand.

WHEREFORE, the instant petition for certiorari is DENIED and the Sandiganbayan is DIRECTED to resume the proceedings in Criminal Case No. 14161 and dispose of the same with deliberate dispatch.

Very truly yours,

LUZVIMINDA D. PUNO
Clerk of Court

(Sgd.) MA. LUISA D. VILLARAMA

Asst. Clerk of Court


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