ALLADO vs. DIOKNO Diosdado Jose Allado and Roberto Mendoza vs. Hon.

Roberto Diokno, Presiding Judge, Br. 62, RTC Makati, and Presidential Anti-Crime Commission May 5, 1994 Bellosillo, J. Lesson: When and how warrant is issued FACTS Diosdado Jose ALlado and Roberto Mendoza, partners of the Law Firm of Salonga, Hernandez and Allado and alumni of the UP College of Law have been accused of the kidnapping with murder by PACC and ordered arrested without bail by Judge Diokno on the basis of an alleged extra-judicial confession of a security guard. In a sworn statement made by Escolastico Umbal, Allado and Mendoza were implicated as the brains behind the kidnapping and slaying of Eugen Alexander Van Twest, a German national. Umbal claimed that he and his companions were met by Allado and Mendoza at Silahis Hotel and in exchange for P2.5 M, the former undertook to apprehend Van Twest who allegedly had an international warrant of arrest against him. After a month of surveillance, Umbal, Ex-policeman Rolando Gamatero, AFPCIG agent Roberto Santiago and SPO2 Sergio Antonino abducted Van Twest. They blocked his blue Nissan Pathfinder under the Alabang overpass and forced him into their car. They brought him to a safe house just behind the New Bilibid Prisons. SPO2 Roger Bato faked the interrogation of Van Twest, pretending it was official and then made him sign certain documents transferring ownership of several properties amounting to several million pesos and caused the withdrawal of P5 M from the victims bank account.. The following day, Gamatero shot Van Twest in the chest with a baby armalite, after which Antonino stabbed him repeatedly, cut off his private part, and later burned his cadaver into fine ashes using gasoline and rubber tires. A day after Umbal executed his extrajudicial confession, the operatives of PACC, armed with a search warrant issued by Judge Roberto Barrios of RTC Manila separately raided the two (2) dwellings of Santiago where a blue Nissan Pathfinder and assorted firearms and ammunition were found. Santiago and his aide were placed under arrest. Also arrested that day were Antonino and Bato who were found to have in their possession several firearms and ammunition and Van Twests Cartier sunglasses. After evaluating the pieces of evidence, Sr. Supt. Panfilo Lacson, Chief of the PACC Task Force habagat, referred the case to the DOJ for the institution of criminal proceedings against the people arrested and Atty. Allado and Mendoza for illegal possession of firearms and ammunition, carnapping, kidnapping for ransom with murder and usurpation of authority. Subsequent events: 1. Senior State Prosecutor Ferdiannd Abesamis issued a subpoena to petitioners informing them of the complaint filed against them by PACC TF Habagat and directed them to appear before the DOJ to submit their counter-affidavits. Attached to the subpoena were the copies of the affidavits executed by Umbal and the members of the team who raided the houses of Santiago. 2. Petitioner Mendoza moved for the production of : (a) the several documents transferring ownership of several properties amounting to several million pesos and the withdrawal of P5 M from the victims bank account; (b) the complete records of the PACCs investigation; (c) such other written statements issued in the case and all other documents intended to be used in the case 3. Petitioners sought the inhibition of the members of the panel of prosecutors ad they were members of the legal staff assigned to PACC 4. A new panel of prosecutors was created. This new panel granted the prayer of production of additional documents used or intended to be used against petitioners. 5. Task Force Habagat submitted only copies of the request for verification of the firearms seized, the result of such request and a Philippine Times Journal article on the case with a marginal note of President Fidel V. Ramos addressed to the PNP Chief directing the submission of a report and summary of actions taken thereon. 6. Despite this partial compliance with their request, petitioners nevertheless submitted their counter-affidavits denying the accusations against them. 7. Preliminary hearing + clarificatory questions 8. Case was submitted for resolution

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SPO2 Bato manifested a reconsideration of his earlier waiver of his right to file a counter-affidavit and moved for the admission of his counter-affidavit confessing to the crime. But later on, he moved to suppress it on the ground that it was extracted through intimidation and duress. Petitioners heard over the radio that the panel had issued a resolution finding a prima facie case against them and that an information had already been filed in court. The information filed was raffled off to Branch 62 presided by Judge Roberto Diokno. Petitioners submitted their opposition to the issuance of a warrant of arrest against them and filed an appeal with the Secretary of Justice seeking review and reversal of the resolution of the panel. Petitioners moved to defer the proceedings before the trial court pending resolution of the appeal before the DOJ However, Judge Diokno still issued warrant of arrest against petitoners Petitioners filed with SC a petition for certiorari and prohibition with prayed for a temporary restraining order TRO was issued and the petitioners were released from Camp Bagong DIwa on the nasis of such TRO

ISSUE Whether Judge Diokno acted with grave abuse of discretion and in excess of jurisdiction in whimsically holding that there is probable cause against petitioners without determining the admissibility of the evidence against petitioners and without even stating the basis of his findings and in relying on the Resolution of the Panel and their certification that probable cause exists (YES) Whether the prosecutors showed bias (YES) REASONING Section 2, Article III, Consti: A warrant of arrest shall issue only 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. Probable cause definitions: The existence of such facts and circumstances as would excite the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for he which he was prosecuted (Buchanan vs. Vda. De Esteban ---still cited in recent cases) For purposes of the issuance of a warrant of arrest: such 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

Standard for determining the existence of probable cause (Pilapil vs. Sandiganbayan): Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not mean "actual and positive cause" nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is it believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge. Whether an act was done causing undue injury to the government and whether the same was done with manifest partiality or evident bad faith can only be made out by proper and sufficient testimony. Necessarily, a conclusion can be arrived at when the case has already proceeded on sufficient proof. Accordingly, before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof. Supreme Court is unable to see how Judge Diokno arrived at a conclusion that there exists probable cause. It found several reason s to the contrary. o PACC relied heavily on the sworn statement of Umbal. There is serious doubt on Van Twests reported death since the corpus delicti has not been established, nor have his remains been recovered.

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It is highly improbable if not ridiculous, that Van Twest was completely burned into ashes with the use of gasoline and rubber tires. A human body cannot be pulverized into ashes by simply burning it with the use of gasoline and rubber tires in an open field. Even crematoria use entirely closed incinerators where the corpse is subjected to intense heat. Thereafter, the remains undergo a process where the bones are completely ground to dust. Even Van Twests counsel doubted Van Twests death. Van Twest is an international fugitive from justice and his death is a likely story to stop the international manhunt for his arrest. There were also inconsistencies in Umbals sworn statement and his statements in the preliminary investigation. Could the non-existence of the documents supposedly signed by Van Twest the reason why PACC was not able to comply with the order of the prosecutors to produce them during the preliminary investigation? What happened to the P2.5 M supposedly offered by petitioner in exchange for the abduction of Van Twest? While the whole investigation was supposedly triggered off by Umbals confession of 16 September 1993, the application of the PACC operatives for a search warrant to be served in the 2 dwellings of Santiago was filed and granted by RTC Manila on 15 September 1993, a day before Umbal executed his sworn statement. The PACC operatives who applied for a warrant to search the dwellings of Santiago never implicated petitioners. In fact they claimed that according to Umbal, it was Santiago who was the mastermind, and not petitioners.

PROCEDURE in determining probable cause: Soliven v. Makasiar: the judge (a) shall 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, (b) if on the basis thereof he finds no probable cause, may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable cause. People v. Inting: The important features of the constitutional mandate: (a) The determination of probable cause is a function of the judge; it is not for the provincial fiscal or prosecutor to ascertain. Only the judge and the judge alone makes this determination; (b) The preliminary inquiry made by a prosecutor does not bind the judge. It merely assists him in making 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 transcript of stenographic notes (if any), and all other supporting documents behind the prosecutor's certification which are material in assisting the judge in his determination of probable cause; and, (c) 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 be conducted in the course of one and the same proceeding, there should be no confusion about their objectives. The determination of probable cause for the warrant 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 a function of the prosecutor. Lim v. Felix: [T]he 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 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. Clearly, probable cause may not be established simply by showing that a trial judge subjectively believes that he has good grounds for his action. Good faith is not enough. If subjective good faith alone were the test, the constitutional protection would be demeaned and the people would be "secure in their persons, houses, papers and effects" only in the fallible discretion of the judge. On the contrary, the probable cause test is an objective one, for in

order that there be probable cause the facts and circumstances must be such as would warrant a belief by a reasonably discreet and prudent man that the accused is guilty of the crime which has just been committed. The prosecutors have similarly misappropriated, if not abused, their discretion. If they really believed that petitioners were probably guilty, they should have armed themselves with facts and circumstances in support of that belief; for mere belief is not enough. They should have presented sufficient and credible evidence to demonstrate the existence of probable cause. In the case at bench, the undue haste in the filing of the information and the inordinate interest of the government cannot be ignored. From the gathering of evidence until the termination of the preliminary investigation, it appears that the state prosecutors were overly eager to file the case and secure a warrant for the arrest of the accused without bail and their consequent detention. Whether it is a preliminary investigation by the prosecutor, which ascertains if the respondent should be held for trial, or a preliminary inquiry by the trial judge which determines if an arrest warrant should issue, the bottomline is that there is a standard in the determination of the existence of probable cause, i.e., there should be facts and circumstances sufficiently strong in themselves to warrant a prudent and cautious man to believe that the accused is guilty of the crime with which he is charged. Judges and prosecutors are not off on a frolic of their own, but rather engaged in a delicate legal duty defined by law and jurisprudence. In order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that the transgressor shall not escape with impunity. A preliminary investigation serves not only for the purposes of the State. More importantly, it is a part of the guarantees of freedom and fair play which are birth rights of all who live in the country. It is therefore imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going thru a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused. Perhaps, this case would not have reached this Court if petitioners were ordinary people submissive to the dictates of government. They would have been illegally arrested and detained without bail. Then we would not have the opportunity to rectify the injustice. Fortunately, the victims of injustice are lawyers who are vigilant of their rights, who fight for their liberty and freedom not otherwise available to those who cower in fear and subjection. DISPOSITIVE Petition for certiorari and prohibition is granted. TRO is made permanent. Warrant of arrest is set aside. Judge Diokno is enjoined from proceeding any further against the petitioners in the criminal case.