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
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 faciecase
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 counteraffidavits if he is so minded.

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.
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, GrioAquino Medialdea and Regalado, JJ., concur.

G.R. No. 88694 January 11, 1993

ALBENSON ENTERPRISES CORP., JESSE YAP, AND
BENJAMIN
MENDIONA, petitioners,
vs.
THE
COURT
OF
APPEALS
AND
EUGENIO
S.
BALTAO, respondents.
Puruganan, Chato, Chato & Tan for petitioners.
Lino M. Patajo, Francisco Ma. Chanco, Ananiano Desierto and
Segundo Mangohig for private respondent.
BIDIN, J.:
This petition assails the decision of respondent Court of
Appeals
in
CA-GR CV No. 14948 entitled "Eugenio S. Baltao, plaintiffappellee vs. Albenson Enterprises Corporation, et al,
defendants-appellants", which modified the judgment of the
Regional Trial Court of Quezon City, Branch XCVIII in Civil
Case No. Q-40920 and ordered petitioner to pay private
respondent, among others, the sum of P500,000.00 as moral
damages and attorney's fees in the amount of P50,000.00.
The facts are not disputed.
In September, October, and November 1980, petitioner
Albenson Enterprises Corporation (Albenson for short)
delivered to Guaranteed Industries, Inc. (Guaranteed for
short) located at 3267 V. Mapa Street, Sta. Mesa, Manila, the
mild steel plates which the latter ordered. As part payment
thereof, Albenson was given Pacific Banking Corporation
Check No. 136361 in the amount of P2,575.00 and drawn
against the account of E.L. Woodworks (Rollo, p. 148).
When presented for payment, the check was dishonored for
the reason "Account Closed." Thereafter, petitioner Albenson,
through counsel, traced the origin of the dishonored check.
From the records of the Securities and Exchange Commission
(SEC), Albenson discovered that the president of Guaranteed,
the recipient of the unpaid mild steel plates, was one
"Eugenio S. Baltao." Upon further inquiry, Albenson was
informed by the Ministry of Trade and Industry that E.L.

Woodworks, a single proprietorship business, was registered

in the name of one "Eugenio Baltao". In addition, upon
verification with the drawee bank, Pacific Banking
Corporation, Albenson was advised that the signature
appearing on the subject check belonged to one "Eugenio
Baltao."
After obtaining the foregoing information, Albenson, through
counsel, made an extrajudicial demand upon private
respondent Eugenio S. Baltao, president of Guaranteed, to
replace and/or make good the dishonored check.
Respondent Baltao, through counsel, denied that he issued
the check, or that the signature appearing thereon is his. He
further alleged that Guaranteed was a defunct entity and
hence, could not have transacted business with Albenson.
On February 14, 1983, Albenson filed with the Office of the
Provincial Fiscal of Rizal a complaint against Eugenio S.
Baltao for violation of Batas Pambansa Bilang 22. Submitted
to support said charges was an affidavit of petitioner
Benjamin Mendiona, an employee of Albenson. In said
affidavit, the above-mentioned circumstances were stated.
It appears, however, that private respondent has a
namesake, his son Eugenio Baltao III, who manages a
business establishment, E.L. Woodworks, on the ground floor
of the Baltao Building, 3267 V. Mapa Street, Sta. Mesa,
Manila, the very same business address of Guaranteed.
On September 5, 1983, Assistant Fiscal Ricardo Sumaway
filed an information against Eugenio S. Baltao for Violation of
Batas Pambansa Bilang 22. In filing said information, Fiscal
Sumaway claimed that he had given Eugenio S. Baltao
opportunity to submit controverting evidence, but the latter
failed to do so and therefore, was deemed to have waived his
right.
Respondent Baltao, claiming ignorance of the complaint
against him, immediately filed with the Provincial Fiscal of
Rizal a motion for reinvestigation, alleging that it was not
true that he had been given an opportunity to be heard in the

preliminary investigation conducted by Fiscal Sumaway, and

that he never had any dealings with Albenson or Benjamin
Mendiona, consequently, the check for which he has been
accused of having issued without funds was not issued by
him and the signature in said check was not his.
On January 30, 1984, Provincial Fiscal Mauro M. Castro of
Rizal reversed the finding of Fiscal Sumaway and exonerated
respondent Baltao. He also instructed the Trial Fiscal to move
for dismissal of the information filed against Eugenio S.
Baltao. Fiscal Castro found that the signature in PBC Check
No. 136361 is not the signature of Eugenio S. Baltao. He also
found that there is no showing in the records of the
preliminary investigation that Eugenio S. Baltao actually
received notice of the said investigation. Fiscal Castro then
castigated Fiscal Sumaway for failing to exercise care and
prudence in the performance of his duties, thereby causing
injustice to respondent who was not properly notified of the
complaint against him and of the requirement to submit his
counter evidence.
Because of the alleged unjust filing of a criminal case against
him for allegedly issuing a check which bounced in violation
of Batas Pambansa Bilang 22 for a measly amount of
P2,575.00, respondent Baltao filed before the Regional Trial
Court of Quezon City a complaint for damages against herein
petitioners Albenson Enterprises, Jesse Yap, its owner, and
Benjamin Mendiona, its employee.
In its decision, the lower court observed that "the check is
drawn against the account of "E.L. Woodworks," not of
Guaranteed Industries of which plaintiff used to be President.
Guaranteed Industries had been inactive and had ceased to
exist as a corporation since 1975. . . . . The possibility is that
it was with Gene Baltao or Eugenio Baltao III, a son of plaintiff
who had a business on the ground floor of Baltao Building
located on V. Mapa Street, that the defendants may have
been dealing with . . . ." (Rollo, pp. 41-42).
The dispositive portion of the trial court 's decision reads:

WHEREFORE, judgment is hereby rendered in

favor of plaintiff and against defendants
ordering the latter to pay plaintiff jointly and
severally:
1. actual or compensatory damages of
P133,350.00;
2. moral damages of P1,000,000.00 (1 million
pesos);
3. exemplary damages of P200,000.00;
4. attorney's fees of P100,000.00;
5 costs.
Defendants' counterclaim against plaintiff and
claim for damages against Mercantile Insurance
Co. on the bond for the issuance of the writ of
attachment at the instance of plaintiff are
hereby dismissed for lack of merit. (Rollo, pp.
38-39).
On appeal, respondent court modified the trial court's
decision as follows:
WHEREFORE, the decision appealed from is
MODIFIED by reducing the moral damages
awarded
therein
from
P1,000,000.00
to
P500,000.00 and the attorney's fees from
P100,000.00 to P50,000.00, said decision being
hereby affirmed in all its other aspects. With
costs against appellants. (Rollo, pp. 50-51)
Dissatisfied with the above ruling, petitioners Albenson
Enterprises Corp., Jesse Yap, and Benjamin Mendiona filed the
instant Petition, alleging that the appellate court erred in:
1. Concluding that private respondent's cause of
action is not one based on malicious prosecution
but one for abuse of rights under Article 21 of
the Civil Code notwithstanding the fact that the
basis of a civil action for malicious prosecution is
Article 2219 in relation to Article 21 or Article
2176 of the Civil Code . . . .
2. Concluding that "hitting at and in effect
maligning (private respondent) with an unjust

criminal case was, without more, a plain case of

abuse of rights by misdirection" and "was
therefore, actionable by itself," and which
"became inordinately blatant and grossly
aggravated when . . . (private respondent) was
deprived of his basic right to notice and a fair
hearing
in
the
so-called
preliminary
investigation . . . . "
3. Concluding that petitioner's "actuations in
this case were coldly deliberate and calculated",
no evidence having been adduced to support
such a sweeping statement.
4. Holding the petitioner corporation, petitioner
Yap and petitioner Mendiona jointly and
severally liable without sufficient basis in law
and in fact.
5. Awarding respondents
5.1. P133,350.00 as actual or
compensatory damages, even in
the absence of sufficient evidence
to show that such was actually
suffered.
5.2.
P500,000.00
as
moral
damages considering that the
evidence in this connection merely
involved
private
respondent's
alleged celebrated status as a
businessman, there being no
showing that the act complained of
adversely
affected
private
respondent's reputation or that it
resulted to material loss.
5.3. P200,000.00 as exemplary
damages despite the fact that
petitioners were duly advised by
counsel of their legal recourse.

5.4. P50,000.00 as attorney's fees,

no evidence having been adduced
to justify such an award (Rollo, pp.
4-6).
Petitioners contend that the civil case filed in the lower court
was one for malicious prosecution. Citing the case ofMadera
vs. Lopez (102 SCRA 700 [1981]), they assert that the
absence of malice on their part absolves them from any
liability for malicious prosecution. Private respondent, on the
other hand, anchored his complaint for Damages on Articles
19, 20, and 21 ** of the Civil Code.
Article 19, known to contain what is commonly referred to as
the principle of abuse of rights, sets certain standards which
may be observed not only in the exercise of one's rights but
also in the performance of one's duties. These standards are
the following: to act with justice; to give everyone his due;
and to observe honesty and good faith. The law, therefore,
recognizes the primordial limitation on all rights: that in their
exercise, the norms of human conduct set forth in Article 19
must be observed. A right, though by itself legal because
recognized or granted by law as such, may nevertheless
become the source of some illegality. When a right is
exercised in a manner which does not conform with the
norms enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for which the
wrongdoer must be held responsible. Although the
requirements of each provision is different, these three (3)
articles are all related to each other. As the eminent Civilist
Senator Arturo Tolentino puts it: "With this article (Article 21),
combined with articles 19 and 20, the scope of our law on
civil wrongs has been very greatly broadened; it has become
much more supple and adaptable than the Anglo-American
law on torts. It is now difficult to conceive of any malevolent
exercise of a right which could not be checked by the
application of these articles" (Tolentino, 1 Civil Code of the
Philippines 72).

There is however, no hard and fast rule which can be applied

to determine whether or not the principle of abuse of rights
may be invoked. The question of whether or not the principle
of abuse of rights has been violated, resulting in damages
under Articles 20 and 21 or other applicable provision of law,
depends on the circumstances of each case. (Globe Mackay
Cable and Radio Corporation vs. Court of Appeals, 176 SCRA
778 [1989]).
The elements of an abuse of right under Article 19 are the
following: (1) There is a legal right or duty; (2) which is
exercised in bad faith; (3) for the sole intent of prejudicing or
injuring another. Article 20 speaks of the general sanction for
all other provisions of law which do not especially provide for
their own sanction (Tolentino, supra, p. 71). Thus, anyone
who, whether willfully or negligently, in the exercise of his
legal right or duty, causes damage to another, shall
indemnify his victim for injuries suffered thereby. Article 21
deals with acts contra bonus mores, and has the following
elements: 1) There is an act which is legal; 2) but which is
contrary to morals, good custom, public order, or public
policy; 3) and it is done with intent to injure.
Thus, under any of these three (3) provisions of law, an act
which causes injury to another may be made the basis for an
award of damages.
There is a common element under Articles 19 and 21, and
that is, the act must be intentional. However, Article 20 does
not distinguish: the act may be done either "willfully", or
"negligently". The trial court as well as the respondent
appellate court mistakenly lumped these three (3) articles
together, and cited the same as the bases for the award of
damages in the civil complaint filed against petitioners, thus:
With the foregoing legal provisions (Articles 19,
20, and 21) in focus, there is not much difficulty
in ascertaining the means by which appellants'
first assigned error should be resolved, given
the admitted fact that when there was an
attempt to collect the amount of P2,575.00, the

defendants were explicitly warned that plaintiff

Eugenio S. Baltao is not the Eugenio Baltao
defendants had been dealing with (supra, p. 5).
When the defendants nevertheless insisted and
persisted in filing a case a criminal case no
less against plaintiff, said defendants ran
afoul of the legal provisions (Articles 19, 20, and
21 of the Civil Code) cited by the lower court
and heretofore quoted (supra).
Defendants, not having been paid the amount of
P2,575.00, certainly had the right to complain.
But that right is limited by certain constraints.
Beyond that limit is the area of excess, of abuse
of
rights.
(Rollo,
pp.
44-45).
Assuming, arguendo, that all the three (3) articles, together
and not independently of each one, could be validly made
the bases for an award of damages based on the principle of
"abuse of right", under the circumstances, We see no cogent
reason for such an award of damages to be made in favor of
private respondent.
Certainly, petitioners could not be said to have violated the
aforestated principle of abuse of right. What prompted
petitioners to file the case for violation of Batas Pambansa
Bilang 22 against private respondent was their failure to
collect the amount of P2,575.00 due on a bounced check
which they honestly believed was issued to them by private
respondent. Petitioners had conducted inquiries regarding
the origin of the check, and yielded the following results:
from the records of the Securities and Exchange Commission,
it was discovered that the President of Guaranteed (the
recipient of the unpaid mild steel plates), was one "Eugenio
S. Baltao"; an inquiry with the Ministry of Trade and Industry
revealed that E.L. Woodworks, against whose account the
check was drawn, was registered in the name of one
"Eugenio Baltao"; verification with the drawee bank, the

Pacific Banking Corporation, revealed that the signature

appearing on the check belonged to one "Eugenio Baltao".
In a letter dated December 16, 1983, counsel for petitioners
wrote private respondent demanding that he make good the
amount of the check. Counsel for private respondent wrote
back and denied, among others, that private respondent ever
transacted business with Albenson Enterprises Corporation;
that he ever issued the check in question. Private
respondent's counsel even went further: he made a warning
to defendants to check the veracity of their claim. It is pivotal
to note at this juncture that in this same letter, if indeed
private respondent wanted to clear himself from the baseless
accusation made against his person, he should have made
mention of the fact that there are three (3) persons with the
same name, i.e.: Eugenio Baltao, Sr., Eugenio S. Baltao, Jr.
(private respondent), and Eugenio Baltao III (private
respondent's son, who as it turned out later, was the issuer of
the check). He, however, failed to do this. The last two
Baltaos were doing business in the same building Baltao
Building located at 3267 V. Mapa Street, Sta. Mesa, Manila.
The mild steel plates were ordered in the name of
Guaranteed of which respondent Eugenio S. Baltao is the
president and delivered to Guaranteed at Baltao building.
Thus, petitioners had every reason to believe that the
Eugenio Baltao who issued the bouncing check is respondent
Eugenio S. Baltao when their counsel wrote respondent to
make good the amount of the check and upon refusal, filed
the complaint for violation of BP Blg. 22.
Private respondent, however, did nothing to clarify the case
of mistaken identity at first hand. Instead, private respondent
waited in ambush and thereafter pounced on the hapless
petitioners at a time he thought was propitious by filing an
action for damages. The Court will not countenance this
devious scheme.
The criminal complaint filed against private respondent after
the latter refused to make good the amount of the bouncing
check despite demand was a sincere attempt on the part of

petitioners to find the best possible means by which they

could collect the sum of money due them. A person who has
not been paid an obligation owed to him will naturally seek
ways to compel the debtor to pay him. It was normal for
petitioners to find means to make the issuer of the check pay
the amount thereof. In the absence of a wrongful act or
omission or of fraud or bad faith, moral damages cannot be
awarded and that the adverse result of an action does
not per se make the action wrongful and subject the actor to
the payment of damages, for the law could not have meant
to impose a penalty on the right to litigate (Rubio vs. Court of
Appeals, 141 SCRA 488 [1986]).
In the case at bar, private respondent does not deny that the
mild steel plates were ordered by and delivered to
Guaranteed at Baltao building and as part payment thereof,
the bouncing check was issued by one Eugenio Baltao.
Neither had private respondent conveyed to petitioner that
there are two Eugenio Baltaos conducting business in the
same building he and his son Eugenio Baltao III.
Considering that Guaranteed, which received the goods in
payment of which the bouncing check was issued is owned
by respondent, petitioner acted in good faith and probable
cause in filing the complaint before the provincial fiscal.
To constitute malicious prosecution, there must be proof that
the prosecution was prompted by a sinister design to vex and
humiliate a person, and that it was initiated deliberately by
the defendant knowing that his charges were false and
groundless. Concededly, the mere act of submitting a case to
the authorities for prosecution does not make one liable for
malicious prosecution. (Manila Gas Corporation vs. Court of
Appeals, 100 SCRA 602 [1980]). Still, private respondent
argues that liability under Articles 19, 20, and 21 of the Civil
Code is so encompassing that it likewise includes liability for
damages for malicious prosecution under Article 2219 (8).
True, a civil action for damages for malicious prosecution is
allowed under the New Civil Code, more specifically Articles
19, 20, 26, 29, 32, 33, 35, and 2219 (8) thereof. In order that

such a case can prosper, however, the following three (3)

elements must be present, to wit: (1) The fact of the
prosecution and the further fact that the defendant was
himself the prosecutor, and that the action was finally
terminated with an acquittal; (2) That in bringing the action,
the prosecutor acted without probable cause; (3) The
prosecutor was actuated or impelled by legal malice (Lao vs.
Court of Appeals, 199 SCRA 58, [1991]).
Thus, a party injured by the filing of a court case against him,
even if he is later on absolved, may file a case for damages
grounded either on the principle of abuse of rights, or on
malicious prosecution. As earlier stated, a complaint for
damages based on malicious prosecution will prosper only if
the three (3) elements aforecited are shown to exist. In the
case at bar, the second and third elements were not shown
to exist. It is well-settled that one cannot be held liable for
maliciously instituting a prosecution where one has acted
with probable cause. "Probable cause is 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 which he was prosecuted. In other words, a suit will
lie only in cases where a legal prosecution has been carried
on without probable cause. The reason for this rule is that it
would be a very great discouragement to public justice, if
prosecutors, who had tolerable ground of suspicion, were
liable to be sued at law when their indictment miscarried"
(Que vs. Intermediate Appellate Court, 169 SCRA 137
[1989]).
The presence of probable cause signifies, as a legal
consequence, the absence of malice. In the instant case, it is
evident that petitioners were not motivated by malicious
intent or by sinister design to unduly harass private
respondent, but only by a well-founded anxiety to protect
their rights when they filed the criminal complaint against
private respondent.

To constitute malicious prosecution, there must

be proof that the prosecution was prompted by
a sinister design to vex and humiliate a person,
that it was initiated deliberately by the
defendant knowing that his charges were false
and groundless. Concededly, the mere act of
submitting a case to the authorities for
prosecution does not make one liable for
malicious prosecution. Proof and motive that the
institution of the action was prompted by a
sinister design to vex and humiliate a person
must be clearly and preponderantly established
to entitle the victims to damages (Ibid.).
In the case at bar, there is no proof of a sinister design on the
part of petitioners to vex or humiliate private respondent by
instituting the criminal case against him. While petitioners
may have been negligent to some extent in determining the
liability of private respondent for the dishonored check, the
same is not so gross or reckless as to amount to bad faith
warranting an award of damages.
The root of the controversy in this case is founded on a case
of mistaken identity. It is possible that with a more assiduous
investigation, petitioners would have eventually discovered
that private respondent Eugenio S. Baltao is not the "Eugenio
Baltao" responsible for the dishonored check. However, the
record shows that petitioners did exert considerable effort in
order to determine the liability of private respondent. Their
investigation pointed to private respondent as the "Eugenio
Baltao" who issued and signed the dishonored check as the
president of the debtor-corporation Guaranteed Enterprises.
Their error in proceeding against the wrong individual was
obviously in the nature of an innocent mistake, and cannot
be characterized as having been committed in bad faith. This
error could have been discovered if respondent had
submitted his counter-affidavit before investigating fiscal
Sumaway and was immediately rectified by Provincial Fiscal

Mauro Castro upon discovery thereof, i.e., during the

reinvestigation resulting in the dismissal of the complaint.
Furthermore, the adverse result of an action does not per
se make the act wrongful and subject the actor to the
payment of moral damages. The law could not have meant to
impose a penalty on the right to litigate, such right is so
precious that moral damages may not be charged on those
who may even exercise it erroneously. And an adverse
decision does not ipso facto justify the award of attorney's
fees to the winning party (Garcia vs. Gonzales, 183 SCRA 72
[1990]).
Thus, an award of damages and attorney's fees is
unwarranted where the action was filed in good faith. If
damage results from a person's exercising his legal rights, it
is damnum absque injuria (Ilocos Norte Electric Company vs.
Court of Appeals, 179 SCRA 5 [1989]).
Coming now to the claim of private respondent for actual or
compensatory damages, the records show that the same was
based solely on his allegations without proof to substantiate
the same. He did not present proof of the cost of the medical
treatment which he claimed to have undergone as a result of
the nervous breakdown he suffered, nor did he present proof
of the actual loss to his business caused by the unjust
litigation against him. In determining actual damages, the
court cannot rely on speculation, conjectures or guesswork as
to the amount. Without the actual proof of loss, the award of
actual damages becomes erroneous (Guilatco vs. City of
Dagupan, 171 SCRA 382 [1989]).
Actual and compensatory damages are those recoverable
because of pecuniary loss in business, trade, property,
profession, job or occupation and the same must be
proved, otherwise, if the proof is flimsy and unsubstantiated,
no damages will be given (Rubio vs. Court of Appeals, 141
SCRA 488 [1986]). For these reasons, it was gravely
erroneous for respondent court to have affirmed the award of
actual damages in favor of private respondent in the absence
of proof thereof.

Where there is no evidence of the other party having acted in

wanton, fraudulent or reckless, or oppressive manner, neither
may exemplary damages be awarded (Dee Hua Liong
Electrical Equipment Corporation vs. Reyes, 145 SCRA 488
[1986]).
As to the award of attorney's fees, it is well-settled that the
same is the exception rather than the general rule. Needless
to say, the award of attorney's fees must be disallowed
where the award of exemplary damages is eliminated (Article
2208, Civil Code; Agustin vs. Court of Appeals, 186 SCRA 375
[1990]). Moreover, in view of the fact that there was no
malicious prosecution against private respondent, attorney's
fees cannot be awarded him on that ground.
In the final analysis, there is no proof or showing that
petitioners acted maliciously or in bad faith in the filing of the
case against private respondent. Consequently, in the
absence of proof of fraud and bad faith committed by
petitioners, they cannot be held liable for damages (Escritor,
Jr. vs. Intermediate Appellate Court, 155 SCRA 577 [1987]).
No damages can be awarded in the instant case, whether
based on the principle of abuse of rights, or for malicious
prosecution. The questioned judgment in the instant case
attests to the propensity of trial judges to award damages
without basis. Lower courts are hereby cautioned anew
against awarding unconscionable sums as damages without
bases therefor.
WHEREFORE, the petition is GRANTED and the decision of the
Court of Appeals in C.A. G.R. C.V. No. 14948 dated May 13,
1989, is hereby REVERSED and SET ASIDE. Costs against
respondent Baltao.
SO ORDERED.

[G.R. No. 141137. January 20, 2004]

PEOPLE OF THE PHILIPPINES, appellee, vs. VICTOR
DIAZ VINECARIO; ARNOLD ROBLE and GERLYN
WATES, appellants.
DECISION
CARPIO-MORALES, J.:
From the Decision of July 20, 1999, as amended by Order
of September 9, 1999, of the Regional Trial Court of Davao
City, Branch 16, finding appellants Victor Vinecario, Arnold
Roble and Gerlyn Wates guilty beyond reasonable doubt of
violation of Article IV of Republic Act No. 6425 (Dangerous
Drugs Act of 1972, as amended by Republic Act No. 7659),
and imposing upon them the penalty of reclusion
perpetua, they lodged the present appeal.
The Information dated April 25, 1995, filed against
appellants reads as follows:
The undersigned accuses the above-named accused for
VIOLATION OF SECTION 4, ARTICLE II IN RELATION TO
SECTION 21, ARTICLE IV OF R.A. 6425, committed as follows:
That on or about April 10, 1995 in the City of Davao,
Philippines and within the jurisdiction of this Honorable Court,
the above-mentioned accused, conspiring, confederating and
helping one another, without being authorized by law,
willfully, unlawfully and feloniously transported, delivered
and possessed 1.7 kilos dried marijuana leaves which are
prohibited drugs.
CONTRARY TO LAW.[1]
Upon arraignment on September 11, 1995, appellants,
duly assisted by counsel, pleaded not guilty to the offense
charged.
The facts as established by the prosecution are as
follows:
On the night of April 10, 1995, at around 10:45 p.m., as
about fifteen police officers were manning a checkpoint at
Ulas, Davao City pursuant to COMELEC Resolution No. 2735,
otherwise known as the COMELEC gun ban, a Honda TMX
motorcycle with three men on board sped past them. [2] One

of the police officers blew his whistle[3] and ordered them to

return to the checkpoint.
Obliging, the three men aboard the motorcycle returned
to the checkpoint. SPO1 Haydenburge Goc-ong (SPO1 Gocong) of the 11th Regional Mobile Force 4th Company
thereupon asked them why they sped away to which
appellant Victor Vinecario (Vinecario), who was seated behind
appellant Arnold Roble (Roble) and in front of appellant
Gerlyn Wates (Wates) on the motorcycle, retorted that he is a
member of the army.[4] When asked by the law enforcers to
produce an identification card, he could not, however, offer
any. At this point, the police officers noticed that a big
military backpack was slung over the right shoulder of
Vinecario who was observed, as were his co-appellants, to be
afraid and acting suspiciously. [5] SPO1 Goc-ong thus asked
Vinecario what the contents of the backpack were. Vinecario
answered that it merely contained a mat and proceeded to
pass it to Wates, who in turn passed it to Roble who,
however, returned it to Vinecario.[6]
Suspecting that the backpack contained a bomb, SPO1
Goc-ong instructed his men to disperse, following which he
ordered Vinecario to open the bag. Vinecario did as ordered
and as SPO1 Goc-ong noticed something wrapped in paper,
he told Vinecario to take the same out. Again Vinecario
obliged, albeit reiterating that it was only a mat.
SPO1 Goc-ong then touched the stuff wrapped in paper
upon which Vinecario grabbed it, [7] resulting to the tearing off
of the paper wrapper. Soon the smell of marijuana wafted in
the air.
Vinecario thereafter told SPO1 Goc-ong let us talk about
this,[8] but the latter ignored Vinecario and instead called his
Commanding Officer and reported to him that marijuana was
found in Vinecarios possession.
On orders of the Commanding Officer, the other police
officers brought appellants along with two bundles of
marijuana, the backpack and the motorcycle to the battalion
office at Camp Catitipan in Davao City and were turned over

to one PO2 Cabalon, an investigator of Regional Mobile Force

11. Before proceeding to said battalion office, however, the
incident was blottered[9] by PO3 Edward Morado at the
Buhangin Police Station.[10]
On April 11, 1995, SPO1 Goc-ong, PO1 Vicente Carvajal
(PO1 Carvajal) and PO1 Pual Padasay brought the confiscated
suspected marijuana to the camps crime laboratory for
examination[11] which determined it to weigh 1,700
grams[12] and to be indeed positive therefor. [13]
As for appellants, their version of the incident follows:
Vinecario, then a member of the 25th Infantry Battalion
of the 6th Infantry Division of the Philippine army stationed at
Pagakpak, Pantukan,[14] approached motorcycle driver Wates
at a terminal in Andile, Mawab and requested him to bring
him to his elder brother at Parang, Maguindanao for a fee of
P500.00 which he paid.[15] The two thus proceeded to
Carmen, Panabo where they picked up Roble to alternate with
Wates as driver, and at 8:00 a.m., the three left for Parang. [16]
On reaching Parang at about 1:20 p.m., Vinecario
borrowed P3,000.00 from his brother Teofanis to shoulder the
medical expenses of his son. At about 4:30 p.m., after
partaking of snacks at Teofanis residence, appellants left for
Davao City.
Along Parang Highway, Abdul Karim Datolarta, Vinecarios
former co-employee at Emerson Plywood where he previously
worked, blocked the motorcycle.[17] Vinecario thus alighted
from the motorcycle and shook hands with Datolarta [18] who
asked where they were headed for and requested that he
ride with them. Vinecario turned Datolarta down as there was
no longer any room in the motorcycle. Datolarta then asked
if he (Vinecario) could take his bag of clothes and bring it to
his cousin, one Merly, in Roxas, Tagum. Without examining its
contents, Vinecario acquiesced, took Datolartas bag and left
with his co-appellants.[19]
On reaching Ulas in the evening of the same day,
appellants, seeing that there was a checkpoint, [20] sped past
it. When they were about 50 to 60 meters away from the

checkpoint, they heard a whistle, prompting Wates to tap

Vinecario, telling him that the whistle came from the
checkpoint. Vinecario then told Roble to go back to the
checkpoint.
While at the checkpoint, five police officers approached
appellants and instructed them to alight from the motorcycle.
One of the officers asked Vinecario who he was, and
Vinecario identified himself as a member of the Philippine
National Police.[21] The officer asked for identification and
when Vinecario could not produce any, the former got the
backpack slung on Vinecarios shoulder.
The same officer then asked Vinecario if they could open
the bag, and as Vinecario acquiesced, two officers opened
the bag upon which they shouted that it contained
marijuana. Vinecario then grabbed the backpack to confirm if
there was indeed marijuana. At that instant, the police
officers held his hands and brought him, together with the
other appellants, to the Buhangin Police Station, and later to
Camp Catitipan.
At the camp, appellants were investigated by police
officials without the assistance of counsel, following which
they were made to sign some documents which they were
not allowed to read.[22]
The trial court, by Decision of July 20, 1999, found
appellants guilty as charged. The dispositive portion of the
decision reads, quoted verbatim:
WHEREFORE, finding the evidence of the prosecution, more
than sufficient to prove the guilt of all three accused beyond
reasonable doubt of the offense charged, accused PFC Victor
Vinecario, Arnold Roble and Gerlyn Wates, pursuant to Sec. 4,
Art. II in relation to Art. IV or (sic) Rep. Act 6425 as amended
by Rep. Act 7659, Sec. 20, par. 5 thereof, are jointly sentence
(sic) to suffer the supreme penalty of death by lethal
injection, under Rep Act 8177 in the manner and procedure
therein provided, in relation to Sec. 24 of Rep. Act 7659,
amending Art. 81 of the Revised Penal Code.

Finally pursuant to Rep. Act 7659 Sec. 22 the Branch Clerk of

Court of RTC 16 Davao City, is ordered to elevate the entire
records of this case with the Clerk of Court, Supreme Court
Manila, for the automatic review of this Decision, after its
promulgation.
SO ORDERED.[23] (Underscoring supplied)
By Order of September 9, 1999, the trial court set aside
its decision of July 20, 1999 and disposed as follows,
quoted verbatim:
Accordingly, all accused (sic) motion for reconsideration on
this aspect, on the imposition of the penalty against all
accused, even if invoked only be accused Venecaio (sic)
through his counsel de officio, will apply to all accused since
there exists conspiracy of all in the commission of the offense
charged.
Judgment of this court, dated July 20, 1999, is accordingly set
aside and reconsidered, only insofar as the imposition of the
supreme penalty of death through lethal injection under
Republic Act No. 8177, is concerned.
All accused PFC Victor Venecario, Arnold Roble and Gerlyn
Wates, are instead sentence (sic) to suffer the penalty
of reclusion perpetua, pursuant to Art. IV, Sec. 21, in
relation to Art. IV of Republic Act No. 6425 as amended by
Republic Act No. 7659, Sec. 20, par. 5 thereof, in accordance
with Art. 63 of the Revised Penal Code, as decided by the
Supreme Court in the recent case of Peope (sic) vs. Ruben
Montilla G.R. No. 123872 dated January 30, 1998.
However, the findings of this court for the conviction of all
aaccused (sic) of the offense charged, is (sic) sustained. The
corresponding motion (sic) for reconsideration of all accused
through their counsel for their acquittal of (sic) the offense
charged, is denied, for lack of merit.
SO ORDERED.[24] (Emphasis and Underscoring supplied)
The
prosecution
then
filed
a
Motion
for
Reconsideration[25] dated September 14, 1995 of the abovementioned Order of the trial court, it arguing that the
commission of the offense charged against appellants was

attended by an aggravating circumstance in that it was

committed by an organized or syndicated crime group, thus
warranting the imposition of the death penalty.
In the meantime, Roble and Wates filed their Notice of
Appeal[26] on September 15, 1999. Vinecario followed suit and
filed his Notice of Appeal.[27]
The trial court, by Order dated September 22, 1999,
denied the prosecutions Motion.
In their brief, Roble and Wates assign the following errors:
1. THE
TRIAL
COURTS
OBSERVATION
THAT
APPELLANTS WATES AND ROBLE CONSPIRED WITH
VICTOR VINECARIO IN TRANSPORTING MARIJUANA
FROM PARANG, MAGUINDANAO IS NOT BORNE BY
THE EVIDNECE (sic) ON RECORD AND SHOWS THAT
THE
TRIAL
COURT
GRAVELY
ERRED
IN
MISAPPREHENDING FACTS IF NOT A COMPLETE
DISREGARD
OF
THE
EVIDENCE,
BOTH
DOCUMENTARY AND TESTIMONIAL.
2. THE TRIAL COURT GRAVELY ERRED IN FAILING TO
AFFORD
EVIDENTIARY
WEIGHT
TO
THE
RECANTATION
MADE
BY
POLICE
OFFICERS
HAYDENBURG GOC-ONG AND VICENTE CARVAJAL
THAT BOTH APPELLANTS WATES AND ROBLE WERE
NOT NERVOUS AND APPREHENSIVE AT THE TME
(sic) OF THE OPENING OF THE MILITARY PACK
CONTAINING MARIJUANA NEAR THE CHECKPOINT.
3. THE TRIAL COURT GRAVELY ERRED IN NOT GIVING
CREDENCE TO THE TESTIMONIES OF APPELLANTS
WATES AND ROBLE THAT THEY WERE MERELY
HIRED BY VICTOR VINECARIO TO BRING HIM TO
PARANG, MAGUINDANAO FOR A FEE OF P500.00
WITH FREE FOOD AND GASOLINE.
4. THE TRIAL COURT GRAVELY ERRED IN DECLARING
THE RENTAL OF P500.00 WHICH VINECARIO PAID
TO THE OWNER OF THE [MOTORCYCLE] AS
INADEQUATE BY TAKING JUDICIAL NOTICE OF THE
BUS FARE OF P268.00 FROM MACO, DAVAO

PROVINCE TO SUN WAY CROSSING, MAGUINDANAO

DOWN TO PARANG, MAGUINDANAO.[28]
Wates and Roble argue that there is no iota of evidence
to prove that they acted with unity of purpose and in the
execution of any unlawful objective with Vinecario. [29] They
assert that they had no prior knowledge of Vinecarios plan to
meet with a man who would give the backpack containing
marijuana; that prosecution witnesses SPO1 Goc-ong and
PO1 Carvajals declaration that they (appellants Wates and
Roble) were not nervous, uneasy or apprehensive when the
backpack was opened buttresses their claim that they did not
conspire with Vinecario; and that the prosecutions theory of
conspiracy was merely based on the testimony of PO1
Carvajal that they acted nervously when the backpack was
ordered opened for inspection; that there was a great
variance in the testimonies of SPO1 Goc-ong and PO1
Carvajal in the direct examination and their testimonies on
rebuttal as to the events that transpired on April 10, 1995,
thus casting serious doubts on the trial courts findings of
guilt.
On September 17, 2001, Vinecario filed an Urgent Motion
to Withdraw Appeal,[30] stating that he is practically satisfied
with the decision of the trial court; that he would not waste
anymore the effort of the honorable Supreme Court Justices
in further reviewing his case; and that as he was driven by
the sincerest desire in renewing his life, he irrevocably
moves for the withdrawal of his appeal. On even date, Roble
and Wates likewise filed an Urgent Motion to Withdraw
Appeal,[31] stating that they admit the commission of the
offense for which they were convicted; that they are satisfied
with the decision of the trial court; and that they are already
serving the penalty for their offense and realize the overt
admittance of guilt as the only vehicle in [their] gradual
renewal.
By Resolution of November 27, 2001, this Court denied
the Motions of appellants and directed Vinecario to file his
brief within forty-five days from notice of the resolution.

In a brief dated January 25, 2002, Vinecario attributes the

following errors to the trial court:
I. THE COURT A QUO GRAVELY ERRED IN HOLDING
THAT THE SEARCH UPON THE PERSON OF
ACCUSED-APPELLANT AND THE SEIZURE OF THE
ALLEGED 1,700 GRAMS OF MARIJUANA AS (sic)
VALID.
II. THE COURT A QUO GRAVELY ERRED IN ADMITTING
AS EVIDENCE AGAINST ACCUSED-APPELLANT THE
ALLEGED 1,700 GRAMS OF MARIJUANA AS IT WAS A
PRODUCT OF AN ILLEGAL SEARCH.
III. THE COURT A QUO GRAVELY ERRED IN GIVING
WEIGHT AND CREDENCE TO THE TESTIMONY OF
PROSECUTION WITNESSES AND IN GIVING THE
POLICEMEN THE PRESUMPTION OF REGULARITY IN
THE PERFORMANCE OF DUTY DESPITE THE
APPARENT IRREGULARITIES IN THE MANNER OF
ARRESTING THE ACCUSED-APPELLANT.
IV. THE COURT A QUO GRAVELY ERRED IN FINDING
THAT THE GUILT OF THE ACCUSED-APPELLANT FOR
THE CRIME CHARGED HAS BEEN PROVEN BEYOND
REASONABLE DOUBT.[32]
Vinecario argues that the prosecution failed to show that
the search conducted by the police officers was incident to a
lawful arrest; that he could not have been deemed to have
consented to the search as any such consent was given
under intimidating or coercive circumstances; and that there
existed no probable cause to justify the search and seizure of
the backpack, hence, the marijuana is inadmissible in
evidence, it being a product of illegal search.
Vinecario adds that the police officers who arrested and
investigated him failed to inform him of his rights to remain
silent and to have competent and independent counsel of his
choice, thereby violating Section 12(1), Article III of the
Constitution.[33]
The rule is constitutionally enshrined that no search and
seizure can lawfully be conducted without a valid warrant

issued by a competent judicial authority. Section 2, Article III

of the Constitution so ordains:
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.
And Section 3(2), Article III of the same Constitution
mandates that any evidence obtained in violation of the right
of the people under Section 2 shall be inadmissible for any
purpose in any proceeding.
The constitutional proscription against warrantless
searches and seizures admits of certain exceptions,
however. Search and/or seizure may be made without a
warrant and the evidence obtained therefrom may be
admissible in the following instances: (1) search incident to a
lawful arrest; (2) search of a moving motor vehicle; (3) search
in violation of customs laws; (4) seizure of evidence in plain
view; (5) when the accused himself waives his right against
unreasonable searches and seizures; and (6) stop-and-frisk
situations.[34]
Searches conducted in checkpoints are valid for as long
as they are warranted by the exigencies of public order and
are conducted in a way least intrusive to motorists.[35] For as
long as the vehicle is neither searched nor its occupants
subjected to a body search, and the inspection of the vehicle
is limited to a visual search, said routine checks cannot be
regarded as violative of an individuals right against
unreasonable search.[36]
x x x [Checkpoints are not illegal per se. Thus, under
exceptional circumstances, as where the survival of
organized government is on the balance, or where the lives

and safety of the people are in grave peril, checkpoints may

be allowed and installed by the government.
xxx
No one can be compelled, under our libertarian system, to
share with the present government its ideological beliefs and
practices, or commend its political, social and economic
policies or performance. But, at least, one must concede to it
the basic right to defend itself from its enemies and, while in
power, to pursue its program of government intended for
public welfare; and in the pursuit of those objectives, the
government has the equal right, under its police power, to
select the reasonable means and methods for best achieving
them. The checkpoint is evidently one of such means it has
selected.
Admittedly, the routine checkpoint stop does intrude, to a
certain extent, on motorists right to free passage without
interruption, but it cannot be denied that, as a rule, it
involves only a brief detention of travelers during which the
vehicles occupants are required to answer a brief question or
two. x x x
These routine checks, when conducted in a fixed area, are
even less intrusive. As held by the U.S. Supreme Court:
Routine checkpoint stops do not intrude similarly on the
motoring public. First, the potential interference with
legitimate traffic is minimal. Motorists using these highways
are not taken by surprise as they know, or may obtain
knowledge of, the location of the checkpoints and will not be
stopped elsewhere. Second checkpoint operations both
appear to and actually involve less discretionary enforcement
activity. The regularized manner in which established
checkpoints are operated is visible evidence, reassuring to
law-abiding motorists, that the stops are duly authorized and
believed to serve the public interest. The location of a fixed
checkpoint is not chosen by officers in the field, but by official
responsible for making overall decisions as to the most
effective allocation of limited enforcement resources. We
may assume that such officials will be unlikely to locate a

checkpoint where it bears arbitrarily or oppressively on

motorists as a class, and since field officers may stop only
those cars passing the checkpoint, there is less room for
abusive or harassing stops of individuals than there was in
the case of roving-patrol stops. Moreover, a claim that a
particular exercise of discretion in locating or operating a
checkpoint is unreasonable is subject to post-stop judicial
review.[37]
Judicial notice is taken of the existence of COMELEC
Resolution No. 2735 imposing a gun ban during an election
period issued pursuant to Section 52(c) of the Omnibus
Election Code (Batas Pambansa Blg. 881).[38] The national and
local elections in 1995 having been held on May 8, the
present incident, which occurred on April 10, 1995, was well
within the election period.
Although the general rule is that motorists and their
vehicles as well as pedestrians passing through checkpoints
may only be subjected to a routine inspection, vehicles may
be stopped and extensively searched when there is probable
cause which justifies a reasonable belief of the men at the
checkpoints that either the motorist is a law offender or the
contents of the vehicle are or have been instruments of some
offense.[39]
Probable cause has been defined as such facts and
circumstances which could lead a reasonable, 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. The required probable
cause that will justify a warrantless search and seizure is not
detemined by any fixed formula but is resolved according to
the facts of each case.
Warrantless search of the personal effects of an
accused has been declared by this Court as valid,
because of existence of probable cause, where the smell
of marijuana emanated from a plastic bag owned by the
accused, or where the accused was acting suspiciously,
and attempted to flee.[40] (Emphasis supplied).

That probable cause existed to justify the search

conducted by the police officers at the checkpoint is gathered
from the following testimony of SPO1 Goc-ong:
Q: You said you saw three on board a motorcycle
what did your unit do when these three persons
approached?
A: We were waiting for them. When they arrived
they stopped and speeded away.
Q: What was your reaction when you saw the motor
speeding away?
A: One of my men blew his whistle ordering to (sic)
return back (sic).
xxx
Q: When they returned back (sic) what happened?
A: When they returned back (sic) I asked them why
they speeded away?
Q: What did they answer?
A: One of them said that he is a member of the
army.
Q: If that person who said that he is a member of
the army is in court, can you point to him?
A: (Witness went down from the witness stand and
pointed to a man wearing yellow t-shirt who stood
up and when asked about his name answered
that he is Victor Venecario).
xxx
Q: What was your reaction when Venecario failed to
show any identification papers to show that he is
really a member of the army?
A: We saw his big backpack and asked him what
was inside.
Q: Who was carrying that big backpack?
A: Venecario.
xxx
Q: You said you asked him what was (sic) the
contents of that backpack, can you tell us why
did you (sic) ask him?

A:

Q:
A:
Q:
A:
Q:
A:
Q:

A:
Q:
A:
Q:

A:
Q:

A:
Q:
xx
A:
Q:
A:
Q:

A:
Q:

I asked about that because I observed them to

be acting suspiciously as if they were afraid and
different reactions (sic).
They were acting suspiciously?
Yes.
That is what you have observed from their faces?
Yes, sir.
What did Venecario do when you asked him
about the contents of that backpack?
He said that it is a mat and passed it on to his
companion.
You said he passed it on to his companion, there
were two (2) companions, to whom did he pass it
on?
He passed it on to Wates and Wates passed it on
to Roble.
What did Roble do when Wates passed it to him?
Roble returned it back (sic) to Venecario.
So what was your reaction when you saw the
three passing the bag from one person to
another?
My suspicion was it was a bomb and ordered my
men to scatter.
Tell us why are you (sic) concerned about
explosives was there any incident prior to that
checkpoint?
Election was past (sic) approaching and there
was a threat that Davao City will be bombed.
Prior to that was there any incident?
x
In Ipil, Zamboanga on April 4.
If you recall when was that?
April 4 of the same year.
You said the bag was passed to Venecario and
you told your men to scatter, what happened
next?
I ordered Venecario to open the backpack.
What did Venecario do when you ordered him to
open?

A: They opened the backpack..[41]

SPO1 Goc-ongs testimony was corroborated by PO1
Vicente Carvajal:
Q: At about 10:45 in the evening of that date April
10, 1995 do you recall of any unusual incident
while you were conducting that checkpoint?
A: Yes, sir.
Q: What was that incident all about?
A: At that time, while we were conducting a
checkpoint, we saw this motorcycle passing and
flagged them to stop and there were three (3)
persons and one was manning and they briefly
stopped but speeded away.
xxx
Q: When these three (3) persons retured (sic) back
(sic) what happened?
A: The one riding introduced himself as a member
of the army.
xxx
Q: You said these three persons were nervous and
one of them introduced himself as an army man,
what did you do?
A: I asked for an ID.
Q: Who among you asked for an ID?
A: Sgt. Goc-ong.
Q: Where were you at that time when Goc-ong
asked for his ID?
A: I was behind him because I backed him up.
Q: What was the reaction of Venecario when he was
asked to produce an ID?
A: He answered that he has no ID.
Q: What was the reaction of the group when
Venecario failed to show any ID that he was an
army man?
A: Our other companion moved closer as security.
Q: Why?
A: We were on alert because on April 4 the one who
attacked were (sic) in uniform.
Q: At that time what was Venecario wearing?

A:
xx
Q:
A:

He was in camouflage and wearing sleepers (sic).

x
After that what happened?
We were able to observe that he was carrying a
bag.
Q: What was the reaction of Venecario when he was
asked what was (sic) the contents of the bag?
A: He appeared to be hesitant and he said that it
contained clothes.
Q: Before that what did Venecario do?
A: He placed it in (sic) his shoulder.
Q: What did he do with the backpack?
A: When asked he passed it to his other
companions.
Q: What did Venecario when he passed it to his
companion?
A: Venecario passed it to his companion and that
companion passed it to his other companion.
Q: After this companion received the backpack from
his companion what did he do?
A: He returned back (sic) to Venecario.
Q: They passed it from one person to another until it
was returned to Venecario?
A: Yes, sir.
xxx
Q: You said that backpack was passed from one
person to another and when he got hold of that
backpack what happened?
A: He opened the backpack.
Q: Who told him to open the backpack?
A: Sgt. Goc-ong.[42]
In light then of appellants speeding away after noticing
the checkpoint and even after having been flagged down by
police officers, their suspicious and nervous gestures when
interrogated on the contents of the backpack which they
passed to one another, and the reply of Vinecario, when
asked why he and his co-appellants sped away from the
checkpoint, that he was a member of the Philippine Army,
apparently in an attempt to dissuade the policemen from

proceeding with their inspection, there existed probable

cause to justify a reasonable belief on the part of the law
enforcers that appellants were offenders of the law or that
the contents of the backpack were instruments of some
offense.
As to Vinecarios allegation that his constitutional rights
were violated during the custodial investigation conducted by
the police officers, the same is relevant and material only
when an extrajudicial admission or confession extracted from
an accused becomes the basis of his conviction. [43] In the
case at bar, the trial court convicted appellants on the basis
of the testimonies of the prosecution witnesses, particularly
those of SPO1 Haydenburge Goc-ong and PO1 Vicente
Carvajal.
Finally, Vinecario harps on his defense of denial which he
recounted as follows:
Q: After leaving the residence of your brother was
there any unusual incident that took place?
A: Yes, sir.
Q: What was that?
A: The moment we arrived there there was a person
who blocked us.
Q: Where?
A: Parang Highway.
Q: Coming here to Davao?
A: Yes.
Q: What happened after Crossing Parang?
A: There was a person who blocked us.
Q: A former companion of yours?
A: Yes.
Q: A former soldier?
A: No, sir.
Q: You said your former companion, am I correct?
A: Before I became a soldier, I worked in Emerson
Plywood.
Q: So that person who flagged down you were (sic)
your former companion?
A: Yes.
Q: You are familiar with him?

A: I know him very well.

Q: He was your close friend?
A: Yes.
Q: What is the name of that person who stopped
you?
A: Abdul Karim Datolarta.
Q: He was alone when he stopped you?
A: Yes, sir.
Q: What happened when your friend Abdul Karin
(sic) Datolarta stopped you?
A: When he stopped us, I immediately disembarked
from the motor vehicle and shook hands with
him.
Q: He was the one who stopped you or you were the
one who told the driver to stop?
A: My friend.
Q: You immediately recognized the face of that
friend of yours?
A: Not yet.
Q: What else happened aside from shaking hands
and greeting?
A: He asked me where I was heading.
Q: What was your answer?
A: I told him that I am going back to Davao.
Q: What else did he tell you?
A: He told me if he can also ride with us.
Q: What did you tell him?
A: I told him we were already three.
Q: What happened next?
A: Since I refused he asked me if I could bring his
bag and he mentioned the name of that cousin of
his in Tagum.
Q: He mentioned the name?
A: Yes, Merly.
Q: What is the family name?
A: He just mentioned Merly who is residing in
Tagum.
Q: Where in Tagum?
A: Roxas, Tagum.

Q: What did you do when he asked you to bring that

bag to his cousin in Tagum?
A: I asked him what was (sic) the contents?
Q: What did he answer you?
A: He answered clothes.
Q: What did you do?
A: Because were (sic) were in a hurry I slung it in
(sic) my shoulder.
Q: You did not become suspicious?
A: No more because I trusted the person and I have
an emergency to take (sic) that time.[44]
Vinecarios account - that in the evening of April 10,
1995, while he and his co-appellants were cruising along the
highway, a person whom he failed to recognize but who
turned out to be an acquaintance, Abdul Karim Datolarta,
flagged down[45] the motorcycle, and as requested by
Datolarta, he readily agreed to bring a backpack to
Datolartas cousin without checking its contents - is
incredible, contrary to human experience, and taxes
credulity. Datolarta was not even apprehended nor
presented at the trial, thus further eliciting serious doubts on
Vinecarios tale.
The defense of denial, like alibi, has invariably been
viewed by the courts with disfavor for it can just as easily be
concocted and is a common and standard defense ploy in
most prosecutions of the Dangerous Drugs Act. [46]
The categorical and consistent testimonies, and the
positive identification by prosecution witnesses SPO1 Gocong and PO1 Carvajal, against whom no ill motive to falsely
charge appellants was shown, must thus then prevail over
the unconvincing alibi and unsubstantiated denial of
appellants.
As for the challenged finding by the trial court of
conspiracy among appellants, the same fails.
Conspiracy exists when two or more persons come to an
agreement concerning the commission of a crime and decide
to commit it.[47] Where the acts of the accused collectively
and individually demonstrate the existence of a common

design towards the accomplishment of the same unlawful

purpose, conspiracy is evident, and all the perpetrators will
be liable as principals.[48] To exempt himself from criminal
liability, the conspirator must have performed an overt act to
dissociate or detach himself from the unlawful plan to
commit the crime.[49]
In People v. Concepcion,[50] this Court held:
x x x Proof of agreement need not rest on direct evidence as
the same may be inferred from the conduct of the parties
indicating a common understanding among them with
respect to the commission of the offense. It is not necessary
to show that two or more persons met together and entered
into an explicit agreement setting out the details of an
unlawful scheme or the details by which an illegal objective
is to be carried out. It may be deduced from the mode and
manner in which the offense was perpetrated or inferred from
the acts of the accused evincing a joint or common purpose
and design, concerted action and community of interest.
In the case at bar, as established by the evidence,
appellants connived in unlawfully transporting the subject
marijuana. Roble, who was driving the motorcycle at Ulas,
did not stop but instead sped away upon seeing the
checkpoint in a clear attempt to avoid inspection by the
police officers. When asked as to the contents of the
backpack by SPO1 Goc-ong, appellants passed the same to
one another, indicating that they knew its contents. These
circumstances manifest appellants concerted efforts and
cooperation towards the attainment of their criminal
objective.
Wates and Roble assail the credibility of prosecution
witnesses SPO1 Goc-ong and PO1 Carvajal, they contending
that these witnesses contradicted their testimonies-in-chief
when they subsequently testified on rebuttal that appellants
were not nervous or apprehensive at all when they were
being inspected by the policemen.
It bears noting, however, that the alleged conflicting
observations of SPO1 Goc-ong and PO1 Carvajal referred to

by Roble and Wates on their deportment pertain to different

stages of the checkpoint inspection as a scrutiny of the
records reveals. Thus, in his direct examination, SPO1 Gocong testified as follows:
Q: You said you asked him what was (sic) the
contents of that backpack, can you tell us why
did you (sic) ask him?
A: I asked about that because I observed them to
be acting suspiciously as if they were afraid and
different reactions (sic).
Q: They were acting suspiciously?
A: Yes.
Q: That is what you observed in their faces?
A: Yes, sir.[51]
PO1 Carvajal, on cross-examination, echoed Goc-ongs
observations on appellants deportment upon returning to
the checkpoint:
Q: You said when these three (3) suspects riding the
motorcycle returned and stopped you said you
noticed one of them was nervous, did I get you
right?
A: Yes, sir.
Q: Only one was nervous?
A: All of them.
Q: When you said they appeared to be nervous,
could that mean that they were trembling?
A: Yes, sir.
Q: In fact they were pale, is that correct?
A: Yes.
Q: You noticed they were pale despite the fact that it
was dark and it was 10:00 oclock in the evening?
A: There was light.
Q: The place was well-lighted?
A: Yes, sir.[52]
On rebuttal, SPO1 Goc-ong stated that appellants were
not anxious or apprehensive when he flagged them down as
they crossed the checkpoint.[53]

PO1 Carvajal, on the other hand, testified on rebuttal that

Wates was not nervous as Vinecarios backpack was being
opened.[54]
As to the other alleged discrepancies pointed out by
Wates and Roble, the following arguments of the Office of the
Solicitor General, which are quoted with approval, should
dispose of the same:
It is incorrect to suggest that just because SPO1 Goc-ong
testified that other vehicles passed through the checkpoint
before the appellants arrived, the latter could not have sped
away from the checkpoint. SPO1 Goc-ong did not give any
testimony that other vehicles were still at the checkpoint at
the time the appellants arrived. On the contrary, he testified
there was no other vehicle ahead of the appellants at the
checkpoint when the latter arrived on their motorcycle (TSN,
June 17, 1999, p.7).
It is also incorrect to suggest that appellants may not have
noticed the checkpoint just because SPO1 Goc-ong made no
mention of using reflectorized objects at the checkpoint. As
described earlier in his Brief, this witness explained that the
checkpoint was visible because it had a sign board at the
middle of the road that read, COMELEC GUN BAN (TSN,
June 17, 1999, pp. 6 and 8). There is no way for appellants
not to have noticed the checkpoint.[55]
In fine, appellants defenses fail in light of their clearly
proven act of delivering or transporting marijuana.
The
evidence
shows
that
accused-appellant
was
apprehended in the act of delivering or transporting illegal
drugs. Transport as used under the Dangerous Drugs Act is
defined to mean: to carry or convey from one place to
another. When accused-appellant used his vehicle to convey
the package containing marijuana to an unknown
destination, his act was part of the process of transporting
the said prohibited substance. Inherent in the crime of
transporting the prohibited drug is the use of a motor vehicle.
The very act of transporting a prohibited drug, like in the

instant case, is a malum prohibitum since it is punished as an

offense under a special law. The mere commission of the act
constitutes the offense and is sufficient to validly charge and
convict an individual committing the act, regardless of
criminal intent. Since the appellant was caught transporting
marijuana,
the
crime
being mala
prohibita, accusedappellants intent, motive, or knowledge, thereof need not be
shown.[56] (Underscoring supplied)
A word on the penalty. As provided in Section 4 of the
Dangerous Drugs Act, the penalty of reclusion perpetua to
death and a fine ranging from five hundred thousand pesos
to ten million pesos shall be imposed upon any person who,
unless authorized by law, shall transport any prohibited
drug. Section 20, Article IV of the same act provides that the
penalty imposed in Section 4 shall be applied if the
dangerous drug is, with respect to marijuana, 750 grams or
more. In the case at bar, the marijuana involved weighed
1,700 grams. Since the law prescribes two indivisible
penalties, a resort to Article 63 of the Revised Penal
Code[57] is necessary. There being no mitigating nor
aggravating circumstance that attended the commission of
the offense, the lesser penalty of reclusion perpetua was
properly imposed by the trial court. A fine of P500,000.00
should, however, been likewise imposed on the appellants in
solidum in accordance with the law.
WHEREFORE, the decision of the Regional Trial Court,
Davao City, Branch 16, in Criminal Case No. 35233-95 finding
appellants Victor Vinecario, Arnold Roble and Gerlyn Wates
guilty beyond reasonable doubt of illegally transporting
marijuana under Section 4, Article II of Republic Act No. 6425,
as amended, is hereby AFFIRMED with MODIFICATION. As
modified, appellants are sentenced to each suffer the penalty
of reclusion perpetua and solidarity pay a fine of
P500,000.00.
SO ORDERED.

Republic
of
SUPREME
Manila
SECOND DIVISION
G.R. No. L-60349-62 December 29, 1983
CITY FISCAL NESTORIO M. PLACER, ASST. CITY
M. BROCOY, RAFAEL V. FLORES, FELIXBERTO L.
ROSARIO F. DABALOS, all of Butuan
PHILIPPINES, petitioners,
vs.
HON. JUDGE NAPOLEON D. VILLANUEVA,
Butuan, respondent.
The Solicitor General for respondent.

the

Philippines
COURT

FISCALS AGELIO L. BRINGAS, ERNESTO

GUIRITAN, MACARIO B. BALANSAG and
City, and the PEOPLE OF THE

in

his

capacity

as

City

Judge

of

ESCOLIN, J.:
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
CAS
E
NO.

TITLE

122
0

People vs, Jimmy Tan

Slight Phy. Inj.

122
10

People
Fortun

Violation
1306

122
11

People
Majini

122
12

People
Dy

122
13

People vs. Angelito

Dy

-do-

122
14

People
Aloyan

vs.

Jesus

Estafa

122
15

People
Lauron

vs,

Bebot

122
16

People vs. Mariano

Trani

vs.

vs.

vs.

Carlito

Jarail

Amelita

of

P.D.

-do-

Violation. of B.P. 22

Mal. Mischief

Usurption
authority

of

122
17

Antonio Monghit

authority

People vs.
Subingbing

Alarm & Scandal

EIorde

Fernando Sagay
122
18

People
Trasga

vs.

122
19

People
Dayan

Renato

Estafa

122
20

People vs. Edgardo

Dayan

Estafa

122
21

People vs. Benito Sy

Ibaez

Estafa

122
22

People vs. Benito Sy

Ibaez

-do-

vs.

Perla

Grave
defamation

oral

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

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. 1220912222.
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. 1220912222. 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 long-standing 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.

G.R. No. 101978. April 7, 1993.

EDUARDO
P.
PILAPIL,
petitioner,
vs.
SANDIGANBAYAN,
FRANCIS
E.
GARCHITORENA and PEOPLE OF THE
PHILIPPINES, respondents.
Ramon A. Gonzales for petitioner.
The Solicitor General for public respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE;
MOTION
TO
QUASH;
ABSENCE
OF
PRELIMINARY
INVESTIGATION,
NOT
A
GROUND. The absence of a preliminary
investigation is not a ground to quash a
complaint or information under Section 3,
Rule 117 of the Rules of Court.
2. ID.; ID.; PRELIMINARY INVESTIGATION;
ABSENCE THEREOF DOES NOT AFFECT
JURISDICTION OF COURTS NOR IMPAIR
VALIDITY OF INFORMATION. The absence
of preliminary investigation does not affect
the court's jurisdiction over the case. Nor do
they impair the validity of the information or
otherwise render it defective, but, if there
were no preliminary investigations and the
defendants, before entering their plea, invite
the attention of the court to their absence,
the court, instead of dismissing the
Information,
should
conduct
such
investigation, order the fiscal to conduct it or
remand the case to the inferior court so that
the preliminary investigation may be
conducted . . . (Sanciangco, Jr. vs. People,
G.R. No. 72830, 149 SCRA 1 [1987] and
reiterated in Doromal vs. Sandiganbayan,
G.R. No. 85468, 177 SCRA 354 [1989]).
3. ID.; ID.; MOTION TO QUASH; LACK OF
JURISDICTION BY THE COURT AS A GROUND,
CONSTRUED. The lack of jurisdiction
contemplated in Section 3(b), Rule 117 of the
Revised Rules of Court refers to the lack of
any law conferring upon the court the power
to inquire into the facts, to apply the law and
to declare the punishment for an offense in a
regular course of judicial proceeding. When
the court has jurisdiction, as in this case, any
irregularity in the exercise of that power is
not a ground for a motion to quash.

4. ID.; JURISDICTION; ABSENCE THEREOF,

NOT SUBJECT TO WAIVER. Lack of
jurisdiction is not waivable but absence of
preliminary investigation is waivable. In fact,
it is frequently waived.
5. CONSTITUTIONAL LAW; BILL OF RIGHTS;
DUE
PROCESS;
NOT
DENIED
WHERE
PETITIONER WAS REQUIRED TO ANSWER THE
CHARGES AGAINST HIM. The facts on
record show that in an order dated October
3, 1990, Deputy Ombudsman Domingo
required petitioner to answer the charges
against him as stated in the affidavitscomplaints
and
supporting
documents
thereto. Petitioner fully complied with said
order and filed his and his witnesses'
affidavits. In other words, petitioner was
properly apprised of the act complained of
and given ample opportunity to rebut the
same. Thus, petitioner could not validly raise
violation of his right to due process because
the bases for the information filed by the
Ombudsman were all reflected in the
complaint and the evidence supporting it.
6. REMEDIAL LAW; CRIMINAL PROCEDURE;
PRELIMINARY
INVESTIGATION;
NOTHING
MORE THAN THE SUBMISSION OF THE
PARTIES'
AFFIDAVITS
AND
COUNTERAFFIDAVITS. In Cinco vs. Sandiganbayan,
(G.R. Nos. 92362-67, 202 SCRA 727 [1991])
this Court held that preliminary investigation
is nothing more than the submission of the
parties'
respective
affidavits,
counteraffidavits and evidence to buttress their
separate allegations.
7. ID.; ID.; ID.; MERELY INQUISITORIAL.
Preliminary
investigation
is
merely
inquisitorial, and it is often the only means of
discovering whether a person may be
reasonably charged with a crime, to enable
the prosecutor to prepare his complaint or
information.
8. ID.; ID.; NATURE OF CRIMINAL CHARGES
DETERMINED BY ACTUAL RECITAL OF FACTS.
The real nature of the criminal charge is
determined not from the caption or preamble
of the information nor from the specification
of the provision of law alleged to have been

violated, they being conclusions of law, but

by the actual recital of facts in the complaint
or information. . . . it is not the technical
name given by the Fiscal appearing in the
title of the information that determines the
character of the crime but the facts alleged
in the body of the Information.
9. ID.; ID.; PRELIMINARY INVESTIGATION;
DEEMED
WAIVED
BY
FAILURE
TO
SEASONABLY INVOKED RIGHT THERETO.
The right to a preliminary investigation is not
a fundamental right and may be waived
expressly or by silence. Failure of accused to
invoke his right to a preliminary investigation
constituted a waiver of such right and any
irregularity that attended it. The right may be
forfeited by inaction and can no longer be
invoked for the first time at the appellate
level.
10. ID.; ID.; ID.; MAY BE AVAILED OF EVEN
AFTER THE CASE HAS BEEN FILED. Under
the last paragraph of Section 7, Rule 112 of
1985 Rules on Criminal Procedure, the right
to ask for preliminary investigation is
recognized even after the case has already
been filed.
11. ID.; ID.; PROBABLE CAUSE, DEFINED.
Probable cause has been defined in the
leading case of Buchanan vs. Vda. de
Esteban (32 Phil. 365) as 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 which he was
prosecuted. 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.
12. ID.; SPECIAL CIVIL ACTION; CERTIORARI;
FINDING BY THE SANDIGANBAYAN OF
PROBABLE CAUSE FOR VIOLATION OF ANTIGRAFT AND PRACTICES ACT, NOT IN EXCESS
OF JURISDICTION NOR WITH GRAVE ABUSE
OF DISCRETION. Having found that
respondent court has not acted in excess of

jurisdiction nor with grave abuse of

discretion in finding the existence of
probable cause in the case at bar and
consequently, in denying the motion to
quash and motion for reconsideration of
petitioner, We dismiss as clearly unfounded
the insinuations of petitioner that Presiding
Justice Francis Garchitorena used the
influence of his office in initiating the
complaint against him. We agree with
respondent court that the act of bringing to
the attention of appropriate officials possible
transgression of the law is as much an
obligation of the highest official of the land
as it is the responsibility of any private
citizen.
DECISION
NOCON, J p:
In this petition for certiorari and mandamus,
petitioner seeks to annul the resolutions of
respondent Sandiganbayan in Criminal Case
No. 16672, entitled "People of the Philippines
vs. Eduardo P. Pilapil" dated June 27, 1991
denying his motion to quash the information
for Violation of Section 3(e) of Republic Act
No. 3019, as amended. as well as the
resolution dated September 5, 1991 denying
his motion for reconsideration. Petitioner
predicated his motion to quash on the
ground of lack of jurisdiction over his person
because the same was filed without probable
cause. In addition thereto, petitioner cites
the fact that the information for violation of
the Anti-Graft Law was filed although the
complaint upon which the preliminary
investigation
was
conducted
is
for
malversation.
The antecedent facts of the case are as
follows:
On October 16, 1987, the Philippine Charity
Sweepstakes Office (PCSO) donated one
ambulance (a Mitsubishi L-300) to the
Municipality of Tigaon, Camarines Sur.
Petitioner, who is the Congressman of the
3rd District of Camarines Sur, received the
ambulance in behalf of the municipality.
However, he did not deliver the ambulance
to said municipality.

Unaware of the donation, the Sangguniang

Bayan of the municipality passed a resolution
(Resolution No. 16, Series of 1988)
requesting PCSO for an ambulance. Said
request was reiterated in their Resolution No.
117, Series of 1988. The mayor of the
municipality, Eleanor P. Lelis, thereafter
sought the intercession of Sandiganbayan
Presiding Justice Francis Garchitorena, who is
from the said municipality, regarding said
request. Thereafter, Justice Garchitorena
contacted the PCSO and learned about the
ambulance previously donated by the latter
to Tigaon through petitioner. He accordingly
informed Mayor Lelis that the municipality's
request cannot be favorably acted upon in
view of the previous donation.
Mayor Lelis reiterated the municipality's
request for an ambulance making reference
to the certification of the municipal treasurer
that no vehicle from the PCSO or from
anyone has been received.
Upon verification of the whereabouts of the
Mitsubishi L-300 by the PCSO from the
petitioner, the latter indicated his willingness
to return the ambulance. In a letter dated
December 22, 1988, he requested that said
vehicle
be
donated
instead
to
the
Municipality of Tinambac, same province.
Finally, on December 26. 1988, he personally
returned the ambulance, then already
painted to cover the logo of the PCSO and
the other markings thereon.
With the return of the Mitsubishi L-300 to the
PCSO, the Municipality of Tigaon, through
Mayor Lelis, finally received a brand new
Besta Kia Ambulance unit complete with all
accessories.
On January 2, 1989, Justice Garchitorena
wrote the then Chief Justice Marcelo B.
Fernan relating to him the whole story of the
ambulance.
On January 25, 1989, Justice Garchitorena
also sent Deputy Ombudsman Jose C.
Colayco a letter-complaint against petitioner
regarding said ambulance. Said lettercomplaint was referred by Ombudsman
Conrado M. Vasquez to the Deputy
Ombudsman for Luzon, Manuel C. Domingo,

for appropriate action. Thereupon, Deputy

Ombudsman
Domingo
required
Justice
Garchitorena to submit all relevant records
and documents, as well as his affidavit and
those of his witnesses. Failing in this regard,
Justice Garchitorena was requested anew to
comply. In his stead, Anthony D. Jamora, the
Regional manager of the Special Projects
Department of the PCSO and Mayor Lelis of
Tigaon, Camarines Sur, submitted their
respective affidavits.
On October 3, 1990, Deputy Ombudsman
Domingo issued an order requiring petitioner
to submit his counter-affidavit, affidavits of
his witnesses and other controverting
evidence. This order was captioned as Case
No. OMB-1-89-0168 for "Malversation of
Public Property under Article 217 of the
Revised Penal Code."
On October 22, 1990, petitioner submitted
his counter-affidavit denying the imputation
of said offense claiming that the vehicle was
not equipped with any medical attachments
or facilities so he was constrained to request
PAGCOR for assistance to finance its
conversion into a medical ambulance which
is evidenced by his letter dated November
15, 1987 to Mrs. Alice Reyes. He claimed that
it was only on April 28, 1988 that PAGCOR
acted on his request, but in lieu of financial
assistance, said office donated accessories,
which can be installed at an estimated cost
of P5,000.00. Thus, he allegedly made
personal representations with PAGCOR for
the latter to shoulder the expenses of the
installation. While awaiting for the financial
assistance, petitioner claimed, in explanation
why the logo of PCSO and the other markings
on the vehicle were removed, that he
acceded to the suggestion of his staff to
include the name of PAGCOR on the sides of
the ambulance in view of the substantial
contribution of the latter.
On
December
5,
1990,
Ombudsman
Investigator Isaac D. Tolentino issued a
resolution finding no probable cause for
malversation and recommended that the
case be dismissed, which recommendation

was approved by Deputy Ombudsman

Domingo.
On January 5, 1991, Assistant Ombudsman
Abelardo Aportadera, Jr. recommended the
disapproval of the aforesaid resolution and
instead, suggested the filing of criminal
information for violation of Article 217 of the
Revised Penal Code. This was followed by
another resolution to the same effect by
Special Prosecution Officer Wilfredo Orencia
dated February 14, 1991.
On April 1, 1991, Ombudsman Conrado
Vasquez issued a resolution sustaining the
finding of Ombudsman Investigator Tolentino
that there is no malversation but found in the
same resolution, a prima facie case for
violation of Section 3(e) of Republic Act No.
3019, the dispositive part of which states:
"WHEREFORE, it is hereby directed that the
information to be filed against the
respondent should be for a violation of
Section 3(e) of R.A. 3019." 1
On April 3, 1991, an information for violation
of Section 3(e) of Republic Act No. 3019,
docketed as Criminal Case No. 16672,
against petitioner was filed, to wit:
"The undersigned Special Prosecution Officer
III accuses EDUARDO P. PILAPIL of the crime
for 'Violation of Section 3(e) of Republic Act
No. 3019, as amended, otherwise known as
the Anti-Graft and Corrupt Practices Act,
committed as follows:
'That on or about October 16, 1987 and
subsequent thereto, in the Municipality of
Tigaon, Province of Camarines Sur and within
the jurisdiction of this Honorable Court, the
accused is a public officer, he being the
Congressman of the Third Congressional
District of Camarines Sur, while in the
discharge of his official functions and taking
advantage of his public position, acted with
manifest partiality and evident bad faith, did
then and there willfully cause undue injury to
the Municipality of Tigaon, Camarines Sur,
when he failed to deliver the ambulance,
Mitsubishi Van L-300, received by him on
behalf of the said municipality in a Deed of
Donation executed by the Philippine Charity
Sweepstakes Office in its favor, to the

prejudice and damage of the said municipal

government.
CONTRARY TO LAW." 2
On April 12, 1991, a warrant of arrest was
issued against petitioner. On April 18, 1991,
he was allowed to deposit the sum of
P15,000.00 in court to be considered as bail
bond and the warrant of arrest was recalled.
On May 2, 1991, petitioner filed a motion to
quash on the ground that respondent
Sandiganbayan has no jurisdiction over his
person because the information was filed
without probable cause since there is
absolutely no proof adduced in the
preliminary investigation of any of the
elements of the crime defined in Section 3(e)
of Republic Act No. 3019. On June 27, 1991,
respondent court denied the said motion to
quash holding that the factual and legal
issues
and/or
questions
raised
are
evidentiary in nature and are matters of
defense, the validity of which can be best
passed upon after a full-blown trial on the
merits. On September 5, 1991, respondent
court
denied
petitioner's
motion
for
reconsideration of the said resolution and set
the arraignment of petitioner on October 21,
1991 at 8:30 a.m.
On October 12, 1991, petitioner filed the
present petition and by reason of such filing,
respondent
court
ordered
that
the
arraignment be held in abeyance.
Petitioner enumerates the following as his
reasons for filing the petition:
"I. THAT RESPONDENT COURT IS ACTING
WITHOUT OR IN EXCESS OF JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION IN
DENYING THE MOTION TO QUASH.
II. THAT RESPONDENT COURT IS NEGLECTING
A LEGAL DUTY IN NOT QUASHING THE
INFORMATION OR DISMISSING THE CASE.
III. THAT PETITIONER HAS NO PLAIN, SPEEDY
AND ADEQUATE REMEDY IN THE ORDINARY
COURSE OF LAW EXCEPT THE PRESENT
PETITION." 3
Stated otherwise, the issue in this case is
whether
or
not
the
Sandiganbayan
committed grave abuse of discretion in
denying petitioner's motion to quash and
motion for reconsideration.

Petitioner harps on the lack of preliminary

investigation on the specific charge of
violation of Sec. 3(e), Republic Act No. 3019,
as amended, filed before the Sandiganbayan.
He alleges that the preliminary investigation
was
conducted
for
the
charge
of
malversation.
At the outset, this Court bears mention of the
rudimentary rule that the absence of a
preliminary investigation is not a ground to
quash a complaint or information under
Section 3, Rule 117 of the Rules of Court. The
proper procedure in case of lack of
preliminary investigation is to hold in
abeyance the proceedings upon such
information and the case remanded to the
Office of the Provincial Fiscal or the
Ombudsman, for that matter, for him or the
Special Prosecutor to conduct a preliminary
investigation. 4 Thus, We enunciated in
Sanciangco, Jr. vs. People, 5 and reiterated in
Doromal vs. Sandiganbayan, 6 that:
"The absence of preliminary investigation
does not affect the court's jurisdiction over
the case. Nor do they impair the validity of
the information or otherwise render it
defective, but, if there were no preliminary
investigations and the defendants, before
entering their plea, invite the attention of the
court to their absence, the court, instead of
dismissing the Information, should conduct
such investigation, order the fiscal to
conduct it or remand the case to the inferior
court so that the preliminary investigation
may be conducted . . ."
Petitioner takes exception to the doctrine and
urges this Court to take a second look
arguing that lack of preliminary investigation
affects the court's jurisdiction because it is
violative of due process. He reasons out that
jurisprudence abounds with the rule that
denial of due process is grave jurisdictional
defeat rendering the judgment void.
We are not persuaded. The lack of
jurisdiction contemplated in Section 3(b),
Rule 117 of the Revised Rules of Court refers
to the lack of any law conferring upon the
court the power to inquire into the facts, to
apply the law and to declare the punishment

for an offense in a regular course of judicial

proceeding. When the court has jurisdiction,
as in this case, any irregularity in the
exercise of that power is not a ground for a
motion to quash. Reason is not wanting for
this view. Lack of jurisdiction is not waivable
but absence of preliminary investigation is
waivable. In fact, it is frequently waived.
We now come to the question of whether
there was no preliminary investigation
conducted in this case necessitating the
suspension of the proceedings in the case
until after the outcome of such preliminary
investigation.
The facts on record show that in an order
dated October 3, 1990, Deputy Ombudsman
Domingo required petitioner to answer the
charges against him as stated in the
affidavits-complaints
and
supporting
documents thereto. Petitioner fully complied
with said order and filed his and his
witnesses' affidavits. In other words,
petitioner was properly apprised of the act
complained of and given ample opportunity
to rebut the same. Thus, petitioner could not
validly raise violation of his right to due
process because the bases for the
information filed by the Ombudsman were all
reflected in the complaint and the evidence
supporting it. In Cinco vs. Sandiganbayan, 7
this Court held that preliminary investigation
is nothing more than the submission of the
parties'
respective
affidavits,
counteraffidavits and evidence to buttress their
separate allegations.
Petitioner attaches significance to the fact
that the preliminary investigation conducted
by the Ombudsman against him was under
the title of "malversation." According to him,
this is not sufficient to justify the filing of the
charge of violation of Anti-Graft and Corrupt
Practices Law.
Petitioner loses sight of the fact that
preliminary
investigation
is
merely
inquisitorial, and it is often the only means of
discovering whether a person may be
reasonably charged with a crime, to enable
the prosecutor to prepare his complaint or
information. The preliminary designation of

the offense in the directive to file a counteraffidavit and affidavits of one's witnesses is
not conclusive. Such designation is only a
conclusion of law of Deputy Ombudsman
Domingo. The Ombudsman is not bound by
the said qualification of the crime. Rather, he
is guided by the evidence presented in the
course of a preliminary investigation and on
the basis of which, he may formulate and
designate the offense and direct the filing of
the corresponding information. In fact, even,
the designation of the offense by the
prosecutor in the information itself has been
held inconclusive, to wit:
". . . the real nature of the criminal charge is
determined not from the caption or preamble
of the information nor from the specification
of the provision of law alleged to have been
violated, they being conclusions of law, but
by the actual recital of facts in the complaint
or information . . . it is not the technical
name given by the Fiscal appearing in the
title of the information that determines the
character of the crime but the facts alleged
in the body of the Information." 8
Petitioner cites the case of Luciano vs.
Mariano, 9 in support of its view that a new
preliminary investigation is needed. In said
case, however, the original charge for
falsification was dismissed for being without
any factual or legal basis and the category of
the offense was raised as the alleged
violation of the Anti-Graft Law was a graver
charge. In the case at bar, there is no
dismissal to speak of because under the
rules of procedure of the office of the
Ombudsman, a complaint may be dismissed
only upon the written authority or approval
of the Ombudsman. Besides, even the
petitioner admits that the violation of the
Anti-Graft law did not raise the category of
the offense of malversation.
The case of Doromal vs. Sandiganbayan, 10
also cited by petitioner as another authority,
is likewise inapplicable as in said case, the
information was annulled as the then
incumbent Tanodbayan was without authority
to conduct preliminary investigations and to
direct the filing of criminal cases with the

Sandiganbayan, except upon orders of the

Ombudsman. With the annulment of the
information, this Court held that a new
preliminary investigation of the charge was
in order not only because the first was a
nullity but also because the accused
demands it as his right. In the case at bar,
there is no old or new information. Only one
information was filed as a result of the
preliminary investigation conducted by the
office of the Ombudsman.
Even on the assumption that no preliminary
investigation
was
conducted
for
the
information filed, petitioner waived his right
thereto for failure to ask the Sandiganbayan
or the Ombudsman for a new preliminary
investigation.
On
this
score
again,
petitioner's case is different from the Luciano
and Doromal cases where the attention of
the lower court was called to the lack of a
new preliminary investigation. Petitioner
bewailed the absence of a new preliminary
investigation only before this Court. It is
noteworthy that his only basis for quashing
the information is the alleged lack of
jurisdiction of the court over his person
because there is no probable cause for the
filing of the information.
It is well-settled that the right to a
preliminary
investigation
is
not
a
fundamental right and may be waived
expressly or by silence. 11 Failure of accused
to invoke his right to a preliminary
investigation constituted a waiver of such
right and any irregularity that attended it. 12
The right may be forfeited by inaction and
can no longer be invoked for the first time at
the appellate level. 13
Petitioner's argument that he could not have
asked for a new preliminary investigation in
the Office of the Ombudsman since he came
to know about the charge only after the
information was filed in the Sandiganbayan,
is not tenable. Under the last paragraph of
Section 7, Rule 112 of 1985 Rules on Criminal
Procedure, the right to ask for preliminary
investigation is recognized even after the
case has already been filed, to wit:

"If the case has been filed in court without a

preliminary Investigation having been first
conducted, the accused may within five (5)
days from the time he learns of the filing of
the information, ask for a preliminary
investigation with the same right to adduce
evidence to his favor in the manner
prescribed in this Rule."
Clearly, the alleged lack of a valid
preliminary investigation came only as an
afterthought to gain a reversal of the denial
of the motion to quash. Sad to say, this last
ditch effort came a bit late. His failure to
invoke this right below constituted a waiver
of such right.
As aforesaid, what was submitted for
consideration below was the motion to quash
of petitioner on the ground of want of
jurisdiction by the trial court over his person
because of the filing of an information
without probable cause. There being no
probable cause, according to petitioner, then
there could be no basis to issue a warrant of
arrest and hence, the respondent court had
no jurisdiction over his person.
Contesting the findings of respondent court
that probable cause exists in this case,
petitioner insists that there is no competent
proof that all the elements of Section 3(e) of
the Anti-Graft law are present, namely: that
an act was done (1) causing undue injury to
the government, (2) with manifest partiality
or evident bad faith, and (3) by a public
officer in the discharge of his official duties.
Petitioner
argues
that
the
injury
contemplated under the law is real or actual
damage and since there is absolutely no
proof of real or actual damages suffered by
the municipality, the finding of undue injury
by the Ombudsman has no factual basis.
Concomitantly, he says that since there is no
undue injury, then, there can be no bad faith,
as bad faith is inseparable from undue injury
for undue injury must be through bad faith.
He claims that failure to inform the mayor of
the donation, that he returned the vehicle
after one year; that he kept the vehicle in
storage; and that he caused the repainting to
erase the words PCSO are not evidence of

bad faith since they cannot manifest a

deliberate intent to do wrong or cause
damage.
Finally, petitioner claims that the element of
"public office in the discharge of official
duties" is also absent as his acceptance of
the vehicle in question from PCSO and its
non-delivery to the municipality of Tigaon
was not done in the discharge of his duty as
a congressman tasked with enacting laws. If
at all, he admits, the act was done in his
private capacity as political leader in his
district.
We agree with respondent court that the
presence or absence of the elements of the
crime are evidentiary in nature and are
matters of defense, the truth of which can
best be passed upon after a full-blown trial
on the merits.
Probable cause has been defined in the
leading case of Buchanan vs. Vda. de
Esteban 14 as 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 which he was prosecuted.
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" 15 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 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.
At the moment, in passing on a motion to set
aside an information on the ground that the
accused has been charged without probable
cause, the court should not be guided by the
rule that accused must be shown to be guilty
beyond a reasonable doubt, but rather
whether there is sufficient evidence which
inclines the mind to believe, without
necessarily leaving room for doubt, that
accused is guilty thereof.
Having thus found that respondent court has
not acted in excess of jurisdiction nor with
grave abuse of discretion in finding the
existence of probable cause in the case at
bar and consequently, in denying the motion
to quash and motion for reconsideration of
petitioner, We dismiss as clearly unfounded
the insinuations of petitioner that Presiding
Justice Francis Garchitorena used the
influence of his office in initiating the
complaint against him. We agree with
respondent court that the act of bringing to
the attention of appropriate officials possible
transgression of the law is as much an
obligation of the highest official of the land
as it is the responsibility of any private
citizen.
WHEREFORE, the instant petition for
certiorari
and
mandamus
is
hereby
DISMISSED for lack of merit.
SO ORDERED.

G.R. No. L-27511

November 29, 1968
IN THE MATTER OF THE APPLICATION
FOR A WRIT OF HABEAS CORPUS,
SIMON
LUNA, petitioner-appellant,
vs.
HON. LORENZO M. PLAZA, as Judge of
the Municipal Court of Tandag, Surigao
del Sur; HON. SANTOS B. BEBERINO as
Provincial Fiscal of Surigao del Sur; and
THE PROVINCIAL WARDEN of Surigao del
Sur,respondents- appellees.
Sisenando Villaluz and Juan T. David for
petitioner-appellant.
Office of the Assistant Solicitor General
Pacifico P. de Castro and Solicitor Augusto M.
Amores for other respondents-appellees.
Provincial Fiscal Santos B. Beberno in his
own behalf as respondent-appellee.
ZALDIVAR, J.:
Appeal from the decision of the Court of First
Instance of Surigao del Sur, dated April 20,
1967, dismissing the petition for a writ
of habeas corpus, filed by herein petitionerappellant Simon Luna hereinafter referred
to simply as petitioner who was charged
with murder in Criminal Case No. 655-New of
the same court.
The criminal action was commenced by TSgt. Candido Patosa, PC investigator of
Tandag, Surigao del Sur, by filing with
respondent Municipal Judge Lorenzo M. Plaza,
of the Municipal Court of Tandag, criminal
case No. 1138 charging the accused, herein
petitioner, with the crime of murder.
Supporting the complaint were sworn
statements of the witnesses for the
prosecution, in the form of questions and
answers taken by T-Sgt. Patosa, and
subscribed and sworn to before the
respondent Judge at the time of the filing of
the complaint. The respondent Judge
examined the prosecution witnesses by
reading to them "all over again the questions
and answers" in their statements in writing,
and the witnesses-affiants declared before
said Judge that the questions were
propounded by T-Sgt. Candido Patosa, and
that the answers were made by them. The

affiants further declared before respondent

Judge that their answers were true, and were
freely and voluntarily made; that they fully
understood the questions and answers, and
that they were willing to sign their respective
affidavits.
The
affiants
signed
their
respective affidavits in the presence of the
respondent Judge, who also signed after the
usual procedure of administering the oath.
Considering the answers of the affiants to
the questions contained in their sworn
statements, together with the post-mortem
and autopsy report on the dead body of the
victim Jaime Diaz Ng, the certificate of death,
the sketch showing the position of the victim
and the accused, and Exhibits 6, 7, 8, 12,
and
13 of
herein
respondents, the
respondent Judge opined that there was
reasonable ground to believe that the crime
of murder had been committed and the
accused was probably guilty thereof.
Respondent Judge issued the order and
warrant of arrest, specifying therein that no
bail should be accepted for the provisional
release of the accused. On February 20,
1967, upon motion of petitioner that he be
admitted to bail upon the ground that the
evidence of guilt was not strong, respondent
Judge issued an order granting bail, fixing it
at P30,000.00; which order, however,
respondent Judge later revoked, and
petitioner was denied bail.
The case was subsequently remanded to the
Court of First Instance of Surigao del Sur,
after petitioner filed a waiver of his right to
preliminary investigation. On March 9, 1967
respondent
Provincial
Fiscal
filed
an
information charging herein petitioner with
the crime of murder. The petitioner was
detained in the provincial jail of Surigao del
Sur under the custody of respondent
Provincial Warden.
On April 5, 1967, petitioner filed a petition for
a writ of habeas corpus with the Court of First
Instance of Surigao del Sur, therein docketed
as Special Proceedings No. 105-New,
claiming that he was being deprived of
liberty without the due process of law, on the

ground that the imprisonment and detention

was the result of a warrant of arrest issued
by respondent Judge in violation of Republic
Act No. 3828, and praying for the annulment
of the order for his arrest and his discharge
from confinement.
Herein respondents filed their answer,
alleging that Republic Act No. 3828 had been
substantially complied with; that a motion to
quash, and not a petition for habeas
corpus was the proper remedy; and that
petitioner's application for bail constituted a
waiver of the right to question the validity of
the arrest.
After trial, the Court of First Instance of
Surigao del Sur rendered its decision, dated
April 20, 1967, holding that respondent
Municipal Judge had substantially complied
with
Republic
Act
No.
3828,
and
consequently denied the application for the
writ of habeas corpus, and dismissed the
case. Hence this appeal.
Petitioner, in his assignment of errors, claims
that the trial court erred, as follows:
1. In giving absolute credence to the
oral testimony of the respondent Judge
to the effect that he adopted and
made his own the questions and
answers taken by T-Sgt. Patosa, PC
Investigator, one of the prosecution
witnesses, because the records show
the contrary;
2. In denying the writ of habeas
corpus and in dismissing the petition.
1. In support of his first assignment of error,
petitioner contends that Republic Act No.
3828 imposes on a municipal judge, before
he can issue a warrant of arrest, two specific
duties, to wit: (1) personally examine the
complainant and witnesses with "searching
questions and answers", which means that
the judge must cross-examine them in case
their affidavits are presented; and (2) said
examination must be reduced to writing and
form part of the records of the case. The
record of the instant case, according to
petitioner, does not show said examination
was performed by respondent Judge.
Petitioner urges that the absence of any

document in the record that shows that

respondent Judge had performed the
examination is positive proof that respondent
Judge
did
not
perform
his
duty,
notwithstanding his testimony before the
Court of First Instance of Surigao del Sur,
during the hearing of this case, to the effect
that he adopted the questions propounded to
each of the prosecution witnesses by T-Sgt.
Patosa. Petitioner maintains that this
testimony, being self-serving intended to
cover up the failure to comply with the law,
should not have been believed by the Court
of First Instance, and said court thereby
committed errors when, believing said
testimony, it found that there had been
substantial compliance with the requirement
that the municipal judge should personally
examine the witnesses. Petitioner further
maintains that assuming that the adoption of
the questions made by T-Sgt. Patosa
constituted substantial compliance with the
requirement that the judge should examine
the witnesses by asking searching questions,
still the second requirement, that of reducing
to writing the said procedure of adoption, has
not been complied with; and so, Republic Act
No. 3828 was still violated, and the issuance
of the warrant of arrest was in violation of
said Act and the Constitution and constituted
denial of due process.
Petitioner contends that the trial court erred
in giving absolute credence to the testimony
of respondent Municipal Judge. Regarding
credibility of witnesses, this Court has
consistently held that, as a general rule, the
lower court's findings as to the credibility of
witnesses will not be interfered with by
appellate courts. Thus, in the case of People
vs. Sinaon1 this Court said:
Time and again, we have held that as
a rule where the issue is one of
credibility of witnesses, appellate
courts will not generally disturb the
findings of the trial court, considering
that it is in a better position to decide
the question, having seen and heard
the
witnesses
themselves
and
observed
their
deportment
and

manner of testifying during the trial,

unless there is a showing that it has
overlooked certain facts of substance
and value, that if considered, might
affect the result of the case.
Petitioner
has
appealed
"from
the
decision/order" of the trial court "to the
Honorable Supreme Court of the Philippines,
on the ground that the same is contrary to
law and the Philippine Constitution" and
prayed that "all the records of the
proceeding and the evidence, oral and
documentary, be transmitted or forwarded to
the Honorable Supreme Court ...". 2 Since
petitioner appealed directly to this Court he
must, therefore, raise only questions of law
and he has thereby waived the right to raise
any question of fact,3 and the findings of
facts of the trial court, under the rules and
precedents, must be deemed final and
binding upon this Court.4
The findings of facts of the trial court are
found in the following portion of the decision
appealed from, to wit:
There is no dispute that there is a valid
complaint charging the accused Simon
Luna, the herein petitioner with the
crime of Murder filed with the
respondent
Judge
authorized
to
conduct the examination of the
witnesses for the prosecution for the
purpose of determining the existence
of probable cause before the issuance
of the corresponding warrant of arrest;
that the complaint is supported by the
statements of the witnesses under
oath in writing in the form of questions
and answers and other documents
attached to the complaint; that before
the issuance of the corresponding
warrant of arrest, the respondent
judge
personally
examined
the
witnesses for the prosecution on their
statements taken by T-Sgt. Candido
Patosa by reading the questions and
answers all over again to the affiants
who confirmed to the respondent
Judge that the statements contained in
their sworn statements are true; that

being satisfied that the questions and

answers contained in the sworn
statements taken by T-Sgt Patosa
partake of the nature of his searching
questions and answers as required by
law, the respondent Judge adopted
them as his own personal examination
of the witnesses for the purpose of
determining the existence of probable
cause, the order and the warrant of
arrest were issued to take the accused
into custody for the commission of the
offense charged (Exhibits "H", "H-1",
"I", and "I-1"-petitioner); and that the
petitioner waived his right to the
preliminary investigation (Exhibit "12"respondent) and applied to be
admitted to bail.
Petitioner, however, claims that the failure of
respondent Judge to put in writing that he
adopted the questions asked by T-Sgt. Patosa
and his failure to ask "searching questions"
violated Republic Act No. 3828.
Republic Act No. 3828, approved June 22,
1963, inserted in section 87 (e) of the
Judiciary Act of 1948 the following
paragraph:
No warrant of arrest shall be issued by
any justice of the peace in any
criminal case filed with him unless he
first
examines
the
witness
or
witnesses
personally,
and
the
examination shall be under oath and
reduced to writing in the form of
searching questions and answers.
Before a municipal judge may issue a
warrant of arrest, the following conditions
must first be fulfilled: (1) he must examine
the
witnesses
personally;
(2)
the
examination must be under oath; (3) the
examination must be reduced to writing in
the form of searching questions and answers.
Were these conditions fulfilled in the instant
case?
The first condition was fulfilled. The trial
court found as a fact that "the respondent
judge personally examined the witnesses for
the prosecution ...;" that respondent judge
adopted as his own personal examination the

questions asked by T-Sgt. Patosa as

appearing in the written statements, which
he read over again to the witnesses together
with the answers given therein, asking the
witnesses whether said answers were theirs,
and whether the same answers were true, to
which the witness answered in the
affirmative. Republic Act No. 3828 does not
prohibit the municipal Judge from adopting
the questions asked by a previous
investigator.
It appears that the sworn statements5 of the
witnesses state at the beginning that the
sworn statement was "taken by T-Sgt.
Candido L. Patosa", and does not state that it
was taken by the respondent municipal Judge
himself. This circumstance is explained by
the fact that said written statements already
taken by T-Sgt. Patosa were delivered to
respondent Municipal Judge who adopted the
questions therein in his examination,
because he considered them searching
questions. Respondent Judge presumably did
not consider it necessary to change the
introductory remarks in each of the written
statements. But that he made the
examination personally cannot be doubted; it
is so stated in the order dated February 18,
1967, which recites:
After examining the witness personally
and under oath there is reasonable
ground to believe that an offense for
murder has been committed and that
the accused, Simon Luna, is probably
guilty thereof. (Exh. H)
The ruling in Doce vs. Branch II of the Court
of First Instance of Quezon, et al.,6 wherein
this Court held that the warrant of arrest
issued therein was irregularly issued is not
applicable to the case at bar for the simple
reason that the facts are different. This Court
in that case said:
There is merit in the assertion that the
warrant of arrest was irregularly
issued. Section 87 of the Judiciary Act
as amended by Republic Act 3828
requires that the Municipal Judge
issuing the same, personally examine
under oath the witnesses, and

by searching questions and answers

which are to be reduced to writing.
Here, instead of searching questions
and answers, we have only the
affidavits of respondent and her one
witness. Moreover, said affidavits were
sworn to before Judge Cabungcal, not
before Judge Juntereal who issued the
warrant of arrest.
In the instant case, as stated above, the
respondent Municipal Judge personally
examined under oath the witnesses by
asking questions, that were adopted from a
previous investigation, and considered by
him as sufficiently searching and which
questions and the answers thereto were in
writing and sworn to before him prior to his
issuance of the order of arrest.
The second condition required by Republic
Act No. 3828 for the issuance of a warrant of
arrest was also fulfilled. The trial court found
that the complaint was "supported by
statements of the witnesses under oath." The
record also shows the following documents
to have been subscribed and sworn to before
respondent Judge, namely: Exhibit B, sworn
statement of herein petitioner Simon Luna y
Albay; Exhibit C, sworn statement of Eusebio
Corpuz; Exhibit D, sworn statement of Bruno
M. Zafra; Exhibit E, sworn statement of
Martiliano J. Bautista; Exhibit F, sworn
statement of Janedina Diaz y Bandoy.
The third condition required by Republic Act
No. 3828 was likewise fulfilled. The
examination of the witnesses was written
down, in the form of searching questions and
answers. The term "searching questions and
answers"
means
only,
taking
into
consideration the purpose of the preliminary
examination which is to determine "whether
there is a reasonable ground to believe that
an offense has been committed and the
accused is probably guilty thereof so that a
warrant of arrest may be issued and the
accused held for trial",7 such questions as
have tendency to show the commission of a
crime and the perpetrator thereof. What
would be searching questions would depend
on what is sought to be inquired into, such

as: the nature of the offense, the date, time,

and place of its commission, the possible
motives for its commission; the subject, his
age, education, status, financial and social
circumstances, his attitude toward the
investigation, social attitudes, opportunities
to commit the offense; the victim, his age,
status, family responsibilities, financial and
social circumstances, characteristics, etc.
The points that are the subject of inquiry
may differ from case to case. The questions,
therefore, must to a great degree depend
upon the Judge making the investigation. At
any rate, the court a quo found that
respondent judge was "satisfied that the
questions and answers contained in the
sworn statements taken by T-Sgt. Patosa
partake of the nature of his searching
questions and answers as required by law,"
so the respondent Judge adopted them.
Petitioner's further contention that the
issuance of the warrant of arrest was a
violation of the constitution and of
procedural due process is likewise untenable.
The Constitution, in Section 1(3), Article III,
provides that no warrant 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.
The
constitutional requirement of examination of
witnesses under oath was, as shown above,
fulfilled. The existence of probable cause
depended to a large degree upon the finding
or opinion of the judge conducting the
examination. Respondent judge found that
there was probable cause, as stated in his
order of arrest, that "after examining the
witnesses personally and under oath there is
a reasonable ground to believe that an
offense of murder has been committed and
that the accused, Simon Luna, is probably
guilty thereof."
Petitioner's last contention that the warrant
of arrest issued was a violation of procedural
due process because of the alleged defective
preliminary examination has no leg to stand
on, in view of what we have hereinbefore
stated. Moreover, this Court has held that

preliminary examination is not an essential

part of due process of law.8Preliminary
examination may be conducted by the
municipal judge, prior to the issuance of the
warrant of arrest, either in the presence, or
in the absence, of the accused. The record
shows that herein petitioner waived the
preliminary investigation before respondent
Municipal Judge, and instead, he filed a
petition for bail. The petition for bail was at
first granted by respondent Judge, but later
the order granting bail was revoked. This
conduct of petitioner indicates that he had
waived his objection to whatever defect, if
any,
in
the
preliminary
examination
conducted by respondent Judge prior to the
issuance of the warrant of arrest. Indeed,
petitioner has no substantial much less
legal ground to complain that he was
denied the due process of law.
We find that the trial Judge committed no
error when he held that, based upon the
facts shown during the hearing of this case,
respondent Municipal Judge had substantially
complied with the requirements of the law
specifically Republic Act 3828 before
issuing the warrant of arrest in this case.
2. In the light of what has been said above, it
appears clear that petitioner's second
assignment of error, that the trial court erred
in denying the writ of habeas corpus, is
untenable. Moreover, Section 4 of Rule 102;
of the Rules of Court provides in part, as
follows:
SEC. 4. When writ not allowed or
discharge authorized. If it appears
that the person alleged to be
restrained of his liberty is in the
custody of an officer under process
issued by a court or judge ... and that
the court or judge had jurisdiction to
issue the process ... or make the order
the writ, shall not be allowed....
All the conditions, in the afore-quoted
Section 4, set forth to deny the writ, are
present in the instant case. It is shown that
petitioner is detained and is in the custody of
the respondent Provincial Warden by virtue
of the order of arrest dated February 18,

1967, and the order dated February 21,

1967, of respondent Judge, to confine
petitioner in the provincial jail. It is not
disputed by petitioner that respondent Judge
had jurisdiction to issue the warrant of arrest
and the order of commitment under the
provisions of Section 47, Republic Act No.
409, as amended by Republic Act No. 1201,
although petitioner did question the validity
of the warrant of arrest for allegedly having
been issued in violation of Republic Act No.
3828 which claim We have found to be
untenable. Consequently, the trial Judge did
not commit an error in denying the writ
of habeas corpus prayed for.
At any rate, we believe that, if at all, the
remedy available to the petitioner herein,
under the circumstances stated in this
opinion, is not a petition for a writ of habeas
corpus but a petition to quash the warrant of
arrest or a petition for a reinvestigation of
the case by the respondent Municipal Judge
or by the Provincial Fiscal.
We wish to stress, however, that what has
been stated in this opinion is certainly not
intended to sanction the return to the former
practice of municipal judges of simply relying
upon affidavits or sworn statements that are
made to accompany the complaints that are
filed before them, in determining whether
there is a probable cause for the issuance of
a warrant of arrest. That practice is precisely
what is sought to be voided by the
amendment of Section 87 (c) of Republic Act
296 (Judiciary Act of 1948) which requires
that before a municipal judge issues a
warrant of arrest he should first satisfy
himself that there is a probable cause by
examining the witnesses personally, and that
the examination must be under oath and
reduced to writing in the form of searching
questions and answers. It is obvious that the
purpose of this amendment is to prevent the
issuance of a warrant of arrest against a
person based simply upon affidavits of
witnesses who made, and swore to, their
statements before a person or persons other
than the judge before whom the criminal
complaint is filed. We wish to emphasize

strict compliance by municipal or city judges

of the provision of Section 87 (c) of the
Judiciary Act of 1948, as amended by
Republic Act 3828, in order to avoid
malicious
and/or
unfounded
criminal
prosecution of persons.9
In the case now before Us, while it is true
that the respondent Municipal Judge did not
himself personally cause to be reduced to
writing in the form of questions and answers
the examination of witnesses presented
before him by the person who filed the
criminal complaint, We are satisfied that, as
shown by the evidence, respondent Judge
had personally examined the witnesses
under oath and that the questions asked by
the Judge and the answers of the witnesses
were reflected in writings which were
actually subscribed and sworn to before him.
Moreover, We are of the considered view that
no substantial right of the petitioner had
been violated because, as hereinbefore
adverted to, petitioner waived his right to
preliminary investigation after he was
arrested, and he took the step of applying for
bail before respondent Municipal Judge.
These acts of the petitioner subsequent to
his arrest, constitute an implied admission on
his part that here was a probable cause for
the issuance of the warrant of arrest against
him. Those acts of the petitioner constitute a
waiver of whatever irregularity, if any there
was, that attended his arrest.10
WHEREFORE, the decision of the trial court
dated April 20, 1967, appealed from, is
affirmed. Costs against petitioner-appellant.
It is so ordered.

G.R. No. 78606 September 26, 1988

GELACIO V. SAMULDE, in his official
capacity as Municipal Judge, petitioner,
vs.
RAMON M. SALVANI, Jr., in his official
capacity as Provincial fiscal of Antique,
substituted
by
LEOPOLDO
O.
VILLAVERT, respondent.
GRIO-AQUINO, J.:
This case involves a disagreement between
an investigating judge and the provincial
fiscal on whether it is mandatory for the
former to issue a warrant for the arrest of the
accused in view of his finding, after
conducting a preliminary investigation, that
there exists prima facie evidence that the
accused committed the crime charged.
Municipal
Judge
Gelacio
Samulde
of
Patnogon, Antique, conducted a preliminary
investigation of Pelayo Arangale upon a
complaint for robbery filed on October 29,
1985 by Maria Magbanua, alleging that
Arangale harvested palay from a portion of
her land directly adjoining Arangale's land
(Crim. Case No. 2046-B, entitled "People of
the Philippines vs. Pelayo Arangale").
After making a preliminary investigation
based on the affidavits of the complainant
and her witnesses and counter-affidavits of
the respondent and his witnesses, as
provided in Section 3, Rule 112 of the 1985
Rules on Criminal Procedure, Judge Samulde
transmitted the records of the case to
Provincial Fiscal Ramon Salvani with his
finding that "there is prima facie evidence of
robbery as charge in the complaint" (Annex A
of Answer).
The fiscal returned the records to Judge
Samulde on the ground that the transmittal
of the records to his office was "premature"
because Judge Samulde failed to include the
warrant of arrest against the accused as
provided in Section 5, Rule 112 of the 1985
Rules on Criminal Procedure.
Judge Samulde sent back the records to
Fiscal Salvani. He pointed out that under
Section 6, Rule 112, he may issue a warrant
of arrest if he is satisfied "that a probable
cause exists and that there is a necessity of

placing the respondent under immediate

custody in order not to frustrate the ends of
justice, " implying thereby that, although he
found that a probable cause existed, he did
not believe that Arangale should be
immediately placed under custody so as not
to frustrate the ends of justice. Hence, he
refused to issue a warrant of arrest.
On October 9, 1986, a special civil action of
mandamus was filed in the Regional Trial
Court of Antique by Provincial Fiscal Salvani
against Judge Samulde to compel the latter
to issue a warrant for the arrest of Arangale.
During the pendency of the case in the lower
court, Fiscal Salvani was replaced by Fiscal
Leopoldo Villavert as provincial fiscal of
Antique. Believing that the procedural
question involved is important, Fiscal
Villavert manifested to the Court that there is
need to continue the case begun by his
predecessor.
On February 12, 1987, the Regional Trial
Judge Pedro Icamina dismissed the petition
for mandamus on the ground that "the
petitioner had not shown that he has a clear,
legal right to the performance of the act to
be required of respondent and that the latter
had an imperative duty to perform (it),"
citing this Court's decision in Felix Morada
vs. Hon. Hermogenes Caluag, 5 SCRA 1128.
Nevertheless, he ordered Judge Samulde to
issue a warrant for the arrest of Arangale in
Crim. Case No. 2046-B in view of his (Judge
Samulde's) resolution dated May 22, 1986,
and to transmit the warrant, if the arrest is
by virtue of a warrant, to the Provincial Fiscal
for appropriate action in accordance with the
provisions of Section 5, Rule 112 of the 1985
Rules on Criminal Procedure. He further
advised the Municipal Judge "that henceforth
he adheres to the same rule in similar cases
where
he
conducts
a
preliminary
investigation with a finding of a prima
facie or probable cause." (pp. 23-32,
Records.)
Unconvinced, Judge Samulde appealed to
this Court. The issue posed by this case
necessitates an examination of the history
and development of the rule on preliminary

investigation. Section 13 of General Orders

No. 58 dated April 23, 1900 of the U.S.
Military Governor in the Philippines was the
original source of the rule on preliminary
investigation. It provided
SEC. 13. When a complaint or
information
alleging
the
commission of a crime is laid
before a magistrate, he must
examine, on oath, the informant
or prosecutor and the witnesses
produced,
and
take
their
depositions in writing, causing
them to be subscribed by the
parties making them. If the
magistrate be satisfied from the
investigation that the crime
complained
of
has
been
committed, and that there is
reasonable ground to believe
that the party charged has
committed it, he must issue an
order for his arrest. If the
offense be bailable, and the
defendant offers a sufficient
security, he shall be admitted to
bail; otherwise he shall be
committed to prison. (General
Orders & Circulars, issued by
the Office of U.S. Military
Governor in the Philippine
Islands, 1900, p. 3, Emphasis
supplied.)
It was amended by Act 194 of the Public
Laws enacted by the Philippine Commission
with Amendments indicated, Vol. I, p. 527,
which authorized every justice of the peace
to conduct such investigation and order the
arrest of the accused if he believed the
complaint to be well founded.
SEC. 1. Every justice of the
peace in the Philippine Islands is
hereby invested with authority
to
make
preliminary
investigation of any crime
alleged to have been committed
within
his
municipality,
jurisdiction
to
hear
and
determine which is by law now

vested in the judges of Courts of

First Instance. It shall be the
duty of every justice of the
peace, when written complaint
under oath has been made to
him that a crime has been
committed
within
his
municipality and there is reason
to believe that any person has
committed the same, which
complaint the justice believes to
be well founded, or when he has
knowledge of facts tending to
show the commission of a crime
within his municipality by any
person, to issue an order for the
arrest of the accused and have
him brought before the justice
of
the
peace
for
such
preliminary
examination.
(Emphasis supplied.)
The rule was substantially unchanged under
Rule 108 of the Rules of Court except that
municipal judges and city fiscals were also
authorized to conduct the preliminary
investigation of offenses committed within
their municipality or city cognizable by the
Court of First Instance.
Under Rule 112 of the 1964 Rules of Court,
the provincial fiscal was added to the
enumeration of persons authorized to
conduct a preliminary investigation.
In the 1985 Rules on Criminal Procedure,
Section 2, Rule 112, the list grew even longer
to include: (a) provincial or city fiscals and
their assistants; (b) Judges of the Municipal
Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional state prosecutors;
and (d) other officers authorized by law. *
Both the 1940 and 1964 Rules of Court
provided for two (2) stages of the preliminary
investigation, to wit: (1) the "previous inquiry
or examination" of the complainant and his
witnesses to determine whether a warrant of
arrest should issue against the defendant,
and (2) the preliminary investigation proper
of the defendant himself to determine if he
should be held for trial. Thus, the preliminary
investigation was defined as:

...
a
previous
inquiry
or
examination made before the
arrest of the defendant by the
judge . . . for the purpose of
determining whether there is a
reasonable ground to believe
that an offense has been
committed and the defendant is
probably guilty thereof, so as to
issue a warrant of arrest and to
hold him for trial. (Sec. 1, Rule
108, 1940 Rules of Court.
Emphasis supplied.)
In Section 1, Rule 112 of the 1964 Rules of
Court, the distinction between a preliminary
examination and preliminary investigation
was more clearly defined by using the term
"preliminary examination" in Section I of the
Rule to differentiate the first stage of the
preliminary investigation (where only the
testimonies of the complainant and his
witnesses were taken), from the second
stage where, after the arrest of the
defendant, he was informed of the complaint
against him and given a chance to testify
and present his evidence (Sec. 10, Rule 112,
1964 Rules of Court). The purpose of the
preliminary
examination
was
still
to
determine "whether there is a reasonable
ground to believe that an offense has been
committed and the accused is probably
guilty thereof, so that a warrant of arrest
may be issued and the accused held for
trial. " (Sec. 1, Rule 112, 1964 Revised Rules
of Court.)
In both the 1940 and 1964 Rules of Court, it
was mandatory upon the investigating judge
to issue a warrant for the arrest of the
accused, if he was satisfied that the offense
charged was committed and that the
accused probably committed it. Accordingly,
Section 7, Rule 108 of the 1940 Rules of
Court provided:
SEC. 7. Warrant of arrest, when
issued. If the judge be
satisfied from the preliminary
investigation conducted by him
that the offense complained of
has been committed and that

there is reasonable ground to

believe that the defendant has
committed it, he must issue a
warrant or order for his arrest.
(Emphasis ours.)
Section 6, Rule 112 of the 1964 Rules of
Court similary provided:
SEC. 6. 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. (Emphasis supplied.)
Because the arrest of the accused was
mandatory, the records to be transmitted by
the investigating judge to the clerk of the
Court of First Instance upon the conclusion of
the preliminary investigation, included the
warrant of arrest (Sec. 13, Rule 108,1940
Rules of Court; Sec. 12, Rule 112,1964
Revised Rules of Court).
However,
the
rule
on
preliminary
investigation underwent some modifications
in the 1985 Rules on Criminal Procedure,
which is the applicable rule in this case.
Under Section 1 of the present rule, the
definition of the purpose of a preliminary
investigation, does not contemplate the
issuance of a warrant of arrest by the
investigating judge or officer:
SECTION
1. Definition.

Preliminary investigation is an
inquiry or proceeding for the
purpose of determining whether
there is sufficient ground to
engender a well founded 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.

The
mandatory
provision
that
the
investigating judge "must issue a warrant of
arrest" if he finds probable cause that the
respondent committed the crime charged,
found in all previous rules of criminal
procedure, from General Orders No. 58 down
to Rule 112 of the 1964 Revised Rules of
Court, is absent in Section 1 of the 1985
Rules on Criminal Procedure.
Another significant change is that under the
1985 Rules on Criminal Procedure there is
only one (1) way of conducting a preliminary
investigation, and that is by affidavits and
counter-affidavits submitted by the parties to
the investigating judge under Section 3, Rule
112. On the basis of the affidavits, the
investigating judge shall "determine whether
or not there is sufficient ground to hold the
respondent for trial' (subpar. f ). Gone is the
requirement in the 1940 and 1964 Rules of
Court that "he must issue a warrant or order"
for the arrest of the defendant.
To determine whether a warrant of arrest
should issue against the accused, the
investigating judge must examine the
complainant and his witnesses "in writing
and under oath ... in the form of searching
questions and answers." When he is
"satisfied that a probable cause exists, and
that there is a necessity of placing the
respondent under immediate custody in
order not to frustrate the ends of justice," he
may issue the warrant as provided in Section
6, par. b, of the 1985 Rules on Criminal
Procedure.
SEC. 6 When warrant of arrest
may issue.
(a) By the Regional Court.....
(b) By the Municipal Trial Court.
-If the municipal trial judge
conducting
the
preliminary
investigation is satisfied after an
examination in writing and
under oath of the complainant
and his witnesses in the form of
searching
questions
and
answers, that a probable cause
exists and that there is a
necessity
of
placing
the

respondent under immediate

custody in order not to frustrate
the ends of justice, he shall
issue a warrant of arrest.
As correctly argued by the petitioner Judge
Samulde, three (3) conditions must concur
for the issuance of the warrant of arrest. 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 a probable
cause exists; and
(c) that there is a need to place
the
respondent
under
immediatecustody in order not
to frustrate the ends of justice.
It is an entirely new rule, and it is plain to see
that 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.
In this particular case, since the robbery
charge was the offshoot of a boundary
dispute between two property owners, the
investigating judge did not believe there was
any danger of the accused absconding
before the filing of the information against
him by the fiscal, hence, he found no need to
place him under immediate custody.
The provincial fiscal anchored his action for
mandamus on Section 5, Rule 112 of the
1985 Rules on Canal Procedure which
provides that upon the termination of the
preliminary investigation, the investigating
judge should transmit to the provincial fiscal
(instead of the clerk of Court of the CFI as
provided in the 1940 and 1964 Rules of
Court) the warrant of arrest and other
records of the preliminary investigation. From
that he deduced that the investigating judge
must issue a warrant for the arrest of the

accused upon the conclusion of the

preliminary investigation. That inference is
not correct. The provision of Section 5, Rule
112 simply means that the warrant of
arrest, if one was issued, shall be transmitted
to the fiscal with the records of the
preliminary investigation. If the investigating
judge, in the exercise of his sound discretion,
decides not to issue a warrant of arrest, then
none need be transmitted to the fiscal, and
he may not be compelled by mandamus to
issue it (Vda. de Crisologo vs. Court of
Appeals, 137 SCRA 231; Pio vs. Marcos, 56
SCRA 725; PAL Employees Assn. vs. PAL, Inc.,
III SCRA 215). The fiscal's speedy and
adequate remedy, if he believes that the
accused should be immediately placed under
custody so as not to frustrate the ends of
justice, is not to file a mandamus action
(which may take two years or more to finally
resolve, as happened in this case), but as
sensibly indicated by the petitioner, to
immediately file the information so that the
Regional Trial Court may issue a warrant for
the arrest of the accused (Sec. 6, par. a, Rule
112,1985 Rules on Criminal Procedure).
WHEREFORE, the appealed decision in Civil
Case No. 2145 is set aside. No costs.
SO ORDERED.

G.R. No. 113630 May 5, 1994

DIOSDADO JOSE ALLADO and ROBERTO
L.
MENDOZA, petitioners,
vs.
HON. ROBERTO C. DIOKNO, Presiding
Judge, Br. 62, Regional Trial Court,
Makati,
Metro
Manila,
and
PRESIDENTIAL
ANTI-CRIME
COMMISSION, respondents.
BELLOSILLO, J.:
On balance at the fulcrum once again are the
intrinsic right of the State to prosecute
perceived transgressors of the law, which
can be regulated, and the innate value of
human liberty, which can hardly be weighed.
Some twelve years ago we were confronted
with a similar problem when former Senator
Jovito R. Salonga invoked before this Court
his "right to life and liberty guaranteed by
the due process clause, alleging that
no prima facie case has been established to
warrant the filing of an information for
subversion against him." 1 We resolved the
issue then and sustained him. He is now back
before us, this time as counsel pleading the
cause of petitioners herein who, he claims,
are in a situation far worse than his
predicament twelve (12) years ago. He
postulates that no probable cause likewise
exists in this case, and what is worse is that
no bail is recommended.
This petition gives us an opportunity to
revisit the concept and implication of
probable cause, the existence of which is
necessary for the prosecutor to have an
accused held for trial and for a trial judge to
issue a warrant for his arrest. It is mandatory
therefore that there be probable cause
before an information is filed and a warrant
of arrest issued. Unfortunately, however, at
times a criminal case is filed, a warrant of
arrest issued and a person consequently
incarcerated on unsubstantiated allegations
that only feign probable cause.
Petitioners Diosdado Jose Allado and Roberto
L. Mendoza, alumni of the College of Law,
University of the Philippines, are partners of
the Law Firm of Salonga, Hernandez and

Allado. In the practice of their profession, and

on the basis of an alleged extrajudicial
confession of a security guard, they have
been accused of the heinous crime of
kidnapping with murder by the Presidential
Anti-Crime Commission (PACC) and ordered
arrested without bail by respondent judge.
The focal source of the information against
petitioners is the sworn statement dated 16
September
1993
of
Security
Guard
Escolastico Umbal, a discharge of the
Philippine Constabulary, implicating them as
the brains behind the alleged kidnapping and
slaying of one Eugen Alexander Van Twest, a
German national. 2 In that extrajudicial
confession, Umbal claimed that he and his
companions were met by petitioners at
Silahis Hotel and in exchange for P2.5M the
former undertook to apprehend Van Twest
who allegedly had an international warrant of
arrest against him. Thus, on 16 June 1992,
after placing him under surveillance for
nearly a month, 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. Umbal was tasked to watch over
their quarry. After four (4) days, Gamatero,
Santiago and Antonino returned to the "safe
house" together with petitioners and SPO2
Roger Bato, known to Umbal also as "Batok."
SPO2 Bato faked the interrogation of Van
Twest, pretending it was official, and then
made him sign certain documents. 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. Umbal could not recall the exact date
when the incident happened, but he was
certain it was about a year ago.
A day after Umbal executed his extrajudicial
confession, the operatives of the PACC,
armed with a search warrant issued by Judge

Roberto A. Barrios of the Regional Trial Court

of Manila, Br. 11, 3 separately raided the two
(2) dwellings of Santiago, one located at No.
7 Sangley Street, and the other, along
Amalingan Street, both in Green Heights
Subdivision,
Paraaque.
The
raiders
recovered a blue Nissan Pathfinder and
assorted firearms and ammunition and
placed Santiago and his trusted aide, Efren
Madolid, under arrest. Also arrested later that
day were Antonio and Bato who were found
to have in their possession several firearms
and ammunition and Van Twest's Cartier
sunglasses.
After evaluating the pieces of evidence
gathered by PACC operatives, Sr., Supt.
Panfilo Lacson, Chief of PACC Task Force
Habagat,
referred
the
case
to
the
Department of Justice for the institution of
criminal proceedings against AFPCIG Agent
Roberto Santiago, SPO1 Sergio Antonino,
SPO2 Roger Bato, Ex-policeman Rolando
Gamatero, Efren Madolid, and petitioners
herein, Atty. Diosdado Jose Allado and Atty.
Roberto L. Mendoza, for illegal possession of
firearms
and
ammunition,
carnapping,
kidnapping for ransom with murder, and
usurpation of authority. 4 In his letter to the
State Prosecutor dated 17 September 1993,
Sr. Supt. Lacson charged that
Atty. Roberto L. Mendoza and
Atty.
Allado
of
Salonga,
Hernandez and Allado Law
Offices . . . planned and
conspired with other suspects to
abduct and kill the German
national Alexander Van Twest in
order to eliminate him after
forcing the victim to sign
several documents transferring
ownership of several properties
amounting to several million
pesos
and
caused
the
withdrawal of P5M deposit from
the victim's bank account.
Thereafter, Senior State Prosecutor Ferdinand
prosecutor Ferdinand R. Abesamis issued a
subpoena to petitioners informing them that
a
complaint

was filed against them by PACC TF-Habagat,

directing
them
to
appear
on
30 September 1993 at the Multi-Purpose Hall
of the Department of Justice and to submit
their counter-affidavits. Attached to the
subpoena were copies of the affidavits
executed by Umbal and members of the
team who raided the two (2) dwellings of
Santiago. 5
Not satisfied merely with the affidavits
attached to the subpoena, petitioner
Mendoza moved for the production of other
documents for examination and copying to
enable him to fully prepare for his defense
and to submit an intelligible counteraffidavit. 6 Specifically, petitioner Mendoza
was interested in (a) the "several documents
transferring ownership of several properties
amounting to several million pesos and the
withdrawal of P5M deposits from the victim's
bank account," as stated in the complaint;
(b) the complete records of the PACC's
investigation, including investigations on
other suspects and their disposition, PACC's
Order of Battle for 1992 and early 1993; and,
(c) such other written statements issued in
the above-entitled case, and all other
documents intended to be used in this
case. 7 Petitioners
likewise
sought
the
inhibition of the members of the panel of
prosecutors, which was created to conduct
the preliminary investigation, on the ground
that they were members of the legal staff
assigned to PACC and thus could not act with
impartiality.
In its Order of 11 October 1993, 8 the new
panel of prosecutors composed of Senior
State Prosecutor Bernelito R. Fernandez as
Chairman, with Rogelio F. Vista and Purita M.
Deynata as Members, confirmed that the
motion for inhibition of the members of the
old panel as well as the appeal to the
Secretary of Justice was resolved on 8
October 1993 resulting in the creation of a
new panel. Thereafter, the new panel
granted the prayer of petitioner Mendoza for
the production of additional documents used
or intended to be used against him.
Meanwhile,
Task
Force
Habagat,
in

compliance with the order, submitted only

copies of the request for verification of the
firearms seized from the accused, the result
of the request for verification, and
a Philippine Times Journal article on the case
with a marginal note of President Fidel V.
Ramos addressed to the Chief of the
Philippine National Police directing the
submission of a report and summary of
actions taken thereon.
Not having been provided with the requested
documents,
petitioners
nevertheless
submitted their respective counter-affidavits
denying the accusations against them. 9
After
a
preliminary
hearing
where
clarificatory questions were additionally
propounded,
the
case
was
deemed
submitted for resolution. But before the new
panel could resolve the case, SPO2 Bato filed
a manifestation stating that he was
reconsidering the earlier waiver of his right
to file counter- affidavit, 10 and "in the
greater interest of truth, justice and fair play"
moved for the admissions of his counteraffidavit 11 confessing participation in the
abduction and slaying of Van Twest and
implicating petitioners Allado and Mendoza.
Sometime in January 1994, however, before
petitioners could refute Bato's counteraffidavit, he moved to suppress it on the
ground that it was extracted through
intimidation and duress.
On 3 February 1994, with the new penal
failing to act on the twin motions of SPO2
Bato, 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.
Upon verification with the Department of
Justice, however, petitioners were informed
that the resolution was not yet ready for
release, but later that afternoon they were
able to secure a copy of the information for
kidnapping with murder against them 12 and
the 15-page undated resolution under the
letterhead of PACC, signed by the panel of
prosecutors, with the Head of the PACC Task
Force
recommending
approval
13
thereof. That same day, the information

was filed before the Regional Trial Court of

Makati and raffled off to Branch 62 presided
by respondent Judge Roberto C. Diokno.
On 4 February 1994, respondent judge, in
response to petitioners' request, gave them
until 8 February 1994 to submit their
opposition to the issuance of a warrant of
arrest against all the accused. 14 On 7
February 1994, petitioners complied with the
order of respondent judge. 15 The following
day,
8 February 1994, petitioner Allado filed an
appeal with the Secretary of Justice seeking
review and reversal of the undated resolution
of
the
panel
16
of prosecutors, which appeal was adopted
by
petitioner
Mendoza. 17 On
11 February 1994, petitioner Allado moved to
defer the proceedings before the trial court
pending resolution of his appeal before the
Secretary of Justice. 18 However, on even
date, respondent judge issued the assailed
warrant
of
arrest
against
19
petitioners. Hence, on 15 February 1994,
petitioners filed with us the instant petition
for certiorari and prohibition with prayer for a
temporary restraining order.
On 16 February 1994, we required
respondents to comment on the petition and
set the case for hearing on 28 February
1994. After the hearing, we issued a
temporary restraining order enjoining PACC
from enforcing the warrant of arrest and
respondent judge from conducting further
proceedings on the case and, instead, to
elevate the records to us. Meanwhile, on 27
February
1994,
petitioners
voluntarily
surrendered at the Headquarters of the
Capital Command (CAPCOM), Philippine
National Police (PNP), Camp Bagong Diwa,
Bicutan, Metro Manila, and on 29 February
1994, they were released on the basis of our
temporary restraining order.
Petitioners, in their 335-page petition,
inclusive of annexes, principally contend that
respondent judge 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," 20 and in "relying
on the Resolution of the Panel and their
certification that probable cause exists when
the certification is flawed." 21 Petitioners
maintain that the records of the preliminary
investigation which respondent judge solely
relied upon failed to establish probable cause
against them to justify the issuance of the
warrant of arrest. Petitioners likewise assail
the prosecutors' "clear sign of bias and
impartiality (sic)." 22
On the other hand, the Office of the Solicitor
General argues that the determination of
probable cause is a function of the judge who
is merely required to personally appreciate
certain facts to convince him that the
accused probably committed the crime
charged.
Section 2, Art. III, of the 1987 Constitution,
lays down the requirements for the issuance
of a warrant of arrest, i.e., 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.
As early as 1915, in Buchanan v. Viuda de
Esteban, 23 this Court speaking through
Associate Justice Sherman Moreland defined
probable cause as "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 which he was prosecuted." This
definition is still relevant today as we
continue to cite it in recent cases. 24 Hence,
probable cause for an arrest or for the
issuance of a warrant of arrest has been
defined as such facts and circumstances
which would lead a reasonable discreet and
prudent man to believe that an offense has
been committed by the person sought to be
arrested. 25 And as a protection against false
prosecution and arrest, it is the knowledge of
facts, actual or apparent, strong enough to
justify a reasonable man in the belief that he

was lawful grounds for arresting the

accused. 26
Pilapil v. Sandiganbayan 27 sets a standard
for determining the existence of probable
cause. While it appears in that case that we
have granted the prosecutor and the trial
judge seemingly unlimited latitude in
determining the existence of absence of
probable cause by affirming the longstanding procedure that they can base their
findings merely on their personal opinion and
reasonable belief, yet, this permissiveness
should not be interpreted as giving them
arbitrary powers and letting them loose in
the determination of the existence of
probable cause, a delicate legal question
which can result in the harassment and
deprivation of liberty of the person sought to
be charged or arrested. There we said
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.28
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. In the
Order of respondent judge dated 11 February
1994, it is expressly stated that "[t]his court
after careful evaluation of the evidence on
record, believes and rules that probable
cause exists; and therefore, a warrant of
arrest should be issued." However, we are
unable to see how respondent judge arrived
at such ruling. We have painstakingly
examined the records and we cannot find
any support for his conclusion. On the
contrary, we discern a number of reasons
why we consider the evidence submitted to
be insufficient for a finding of probable cause
against petitioners.
The Presidential Anti-Crime Commission
relies heavily on the sworn statement of
Security Guard Umbal who supposedly
confessed his participation in the alleged
kidnapping and murder of Van Twest. For
one, there is serious doubt on Van Twest's
reported death since the corpus delicti has
not been established, nor have his remains
been recovered. Umbal claims that Van Twest
was completely burned into ashes with the
use of gasoline and rubber tires from around
ten o'clock in the evening to six o'clock the
next morning. 29 This is highly improbable, if
not ridiculous. 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. 30 Thereafter, the
remains undergo a process where the bones
are completely ground to dust.

In the case of Van Twest, there is not even

any insinuation that earnest efforts were
exerted to recover traces of his remains from
the scene of the alleged cremation. 31 Could
it be that the government investigators did
to the place of cremation but could not find
any? Or could it be that they did not go at all
because they knew that there would not be
any as no burning ever took place? To allege
then that the body of Van Twest was
completely burned to ashes in an open field
with the use merely of tires and gasoline is a
tale too tall to gulp.
Strangely, if not awkwardly, after Van Twest's
reported
abduction
on
16 June 1992 which culminated in his
decimation by cremation, his counsel
continued to represent him before judicial
and quasi-judicial proceedings. Thus on 31
July 1992, his counsel filed in his behalf a
petition for review before this Court,
docketed as G.R. Nos. 106253, and on 18
March 1993, a memorandum before the
Securities and Exchange Commission in SEC
Case
No.
3896.
On
26 November 1993, during the preliminary
investigation conducted by the panel of
prosecutors, counsel again manifested that
"even then and even as of this time, I stated
in my counter-affidavit that until the matter
of death is to be established in the proper
proceedings, I shall continue to pursue my
duties and responsibilities as counsel for Mr.
Van Twest." 32 Hence, even Asst. Solicitor
General Estoesta believes that counsel of
Van
Twest
doubted
the
latter's
33
death. Obviously, counsel himself does not
believe that his client is in fact already dead
otherwise his obligation to his client would
have ceased except to comply with his duty
"to inform the court promptly of such
death . . . and to give the name and
residence of his executor, administrator,
guardian
or
other
legal
representative," 34 which he did not.
Under the circumstances, we cannot discount
petitioners' theory that the supposed death
of Van Twest who is reportedly an
international fugitive from justice, a fact

substantiated by petitioners and never

refuted by PACC, is a likely story to stop the
international manhunt for his arrest. In this
regard, we are reminded of the leading case
ofU.S. v. Samarin 35 decided ninety-two years
ago where this Court ruled that when the
supposed victim is wholly unknown, his body
not found, and there is but one witness who
testifies to the killing, the corpus delicti is not
sufficiently proved.
Then, the extrajudicial statement of Umbal
suffers from material inconsistencies. In his
sworn statement, he said that he together
with his cohorts was met by petitioners in
Silahis Hotel where they hatched the plan to
abduct Van Twest. 36 However, during the
preliminary investigation, he stated that he
was not part of the actual meeting as he only
waited outside in the car for his companions
who supposedly discussed the plan inside
Silahis Hotel. 37
Umbal also said that petitioners arrived with
Bato and conducted a mock interrogation of
Van Twest who thereafter signed various
documents upon being compelled to do
so. 38 During the clarificatory questioning,
however, Umbal changed his story and said
that he was asked to go outside of the "safe
house" at the time Van Twest was
interrogated and thus did not see if Van
Twest indeed signed certain documents. Why
Umbal had to be sent out of the "safe
house,"
no explanation was offered. Did these
documents really exist? Or could the
non-existence of these documents be the
reason why PACC was not able to comply
with the order of the prosecutors to produce
them during the preliminary investigation?
And then, what happened to the P2.5M that
was supposedly offered by petitioners in
exchange for the abduction of Van Twest?
These and more remain unanswered.
Most perplexing however is that while the
whole
investigation
was
supposedly
triggered off by Umbal's confession of 16
September 1993, the application of the PACC
operatives for a search warrant to be served
in
the

two (2) dwellings of Santiago was filed and

granted by the Regional Trial Court of Manila
on 15 September 1993, a day before Umbal
executed his sworn statement. In support of
the application, the PACC agents claimed
that Umbal had been in their custody since
10 September 1993. Significantly, although
he was said to be already under their
custody, Umbal claims he was never
interrogated until 16 September 1993 and
only at the security barracks of Valle Verde V,
Pasig, where he was a security guard. 39
The alleged counter-affidavit of SPO2 Bato,
which the panel of prosecutors also
considered in filing the charges against
petitioners, can hardly be credited as its
probative value has tremendously waned.
The records show that the alleged counteraffidavit, which is self-incriminating, was filed
after the panel had considered the case
submitted
for
resolution.
And before
petitioners could refute this counter-affidavit,
Bato moved to suppress the same on the
ground that it was extracted through duress
and intimidation.
For sure, the credibility of Umbal is badly
battered. Certainly, his bare allegations,
even if the State invokes its inherent right to
prosecute, are insufficient to justify sending
two lawyers to jail, or anybody for that
matter.
More
importantly,
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,
and not petitioners, who masterminded the
whole affair. 40 While there may be bits of
evidence
against
petitioners'
co-accused, i.e., referring to those seized
from the dwellings of Santiago, these do not
in the least prove petitioners' complicity in
the crime charged. Based on the evidence
thus far submitted there is nothing indeed,
much less is there probable cause, to
incriminate petitioners. For them to stand
trial and be deprived in the meantime of
their liberty, however brief, the law
appropriately exacts much more to sustain a
warrant for their arrest facts and

circumstances strong enough in themselves

to support the belief that they are guilty of a
crime that in fact happened. Quite obviously,
this has not been met.
Verily, respondent judge committed grave
abuse of discretion in issuing the warrant for
the arrest of petitioners it appearing that he
did not personally examine the evidence nor
did he call for the complainant and his
witnesses in the face of their incredible
accounts. Instead, he merely relied on the
certification of the prosecutors that probable
cause existed. For, otherwise, he would have
found out that the evidence thus far
presented was utterly insufficient to warrant
the arrest of petitioners. In this regard, we
restate the procedure we outlined in various
cases we have already decided.
In Soliven v. Makasiar, 41 we said that 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.
In People v. Inting, 42 we emphasized 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.
In Lim v. Felix, 43 where we reiterated Soliven
v. Makasiar and People v. Inting, we said
[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. 44 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. 45 This, as we said, is the
standard. Hence, if upon the filing of the
information in court the trial judge, after
reviewing
the
information
and
the
documents attached thereto, finds that no
probable cause exists must either call for the
complainant and the witnesses themselves
or simply dismiss the case. There is no
reason to hold the accused for trial and
further expose him to an open and public
accusation of the crime when no probable
cause exists.
But then, it appears in the instant case that
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. For the prosecuting officer "is the
representative not of an ordinary party to a

controversy, but of a sovereignty whose

obligation to govern impartially is as
compelling as its obligation to govern all; and
whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but
that justice shall be done. As such, he is in a
peculiar and very definite sense the servant
of the law, the twofold aim of which is that
guilt shall not escape or innocence suffer. He
may prosecute with earnestness and vigor
indeed, he should do so. But, while he may
strike hard blows, he is not at liberty to strike
foul ones. It is as much his duty to refrain
from improper methods calculated to
produce a wrongful conviction as it is to use
every legitimate means to bring about a just
one" 46
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.
Umbal's
sworn
statement is laden with inconsistencies and
improbabilities. Bato's counter-affidavit was
considered without giving petitioners the
opportunity to refute the same. The PACC
which gathered the evidence appears to
have had a hand in the determination of
probable cause in the preliminary inquiry as
the undated resolution of the panel not only
bears the letterhead of PACC but was also
recommended for approval by the head of
the PACC Task Force. Then petitioners were
given the runaround in securing a copy of the
resolution and the information against them.
Indeed, the task of ridding society of
criminals and misfits and sending them to jail
in the hope that they will in the future reform
and be productive members of the
community rests both on the judiciousness of
judges and the prudence of prosecutors. And,
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 this instance, Salonga v. Pao 47 finds
application
The purpose of a preliminary
investigation is to secure the
innocent
against
hasty,
malicious
and
oppressive
prosecution, 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 trial (Trocio v. Manta,
118 SCRA 241, citing Hashim v.
Boncan, 71 Phil. 216). The right
to a preliminary investigation is
a statutory grant, and to
withhold
it
would
be
to
transgress constitutional due
process (People v. Oandasa, 25
SCRA 277). However, 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 birthrights 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 (emphasis
supplied).
The facts of this case are fatefully distressing
as they showcase the seeming immensity of
government power which when unchecked
becomes tyrannical and oppressive. Hence
the Constitution, particularly the Bill of
Rights, defines the limits beyond which lie
unsanctioned state actions. But on occasion,
for one reason or another, the State
transcends this parameter. In consequence,
individual liberty unnecessarily suffers. The
case before us, if uncurbed, can be
illustrative of a dismal trend. Needless injury
of the sort inflicted by government agents is
not reflective of responsible government.
Judges and law enforcers are not, by reason
of their high and prestigious office, relieved
of the common obligation to avoid
deliberately inflicting unnecessary injury.
The sovereign power has the inherent right
to protect itself and its people from vicious
acts
which
endanger
the
proper
administration of justice; hence, the State
has every right to prosecute and punish
violators of the law. This is essential for its
self- preservation, nay, its very existence.
But this does not confer a license for
pointless assaults on its citizens. The right of
the State to prosecute is not a carte
blanche for government agents to defy and
disregard the rights of its citizens under the
Constitution. Confinement, regardless of
duration, is too high a price to pay for
reckless and impulsive prosecution. Hence,
even if we apply in this case the "multifactor
balancing test" which requires the officer to
weigh the manner and intensity of the
interference on the right of the people, the
gravity of the crime committed and the
circumstances attending the incident, still we
cannot see probable cause to order the
detention of petitioners. 48

The purpose of the Bill of Rights is to protect

the
people
against
arbitrary
and
discriminatory use of political power. This
bundle of rights guarantees the preservation
of our natural rights which include personal
liberty and security against invasion by the
government or any of its branches or
instrumentalities. Certainly, in the hierarchy
of rights, the Bill of Rights takes precedence
over the right of the State to prosecute, and
when weighed against each other, the scales
of justice tilt towards the former. Thus, relief
may be availed of to stop the purported
enforcement of criminal law where it is
necessary to provide for an orderly
administration of justice, to prevent the use
of the strong arm of the law in an oppressive
and vindictive manner, and to afford
adequate
protection
to
constitutional
49
rights.
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.
Let this then be a constant reminder to
judges, prosecutors and other government
agents tasked with the enforcement of the
law that in the performance of their duties
they must act with circumspection, lest their
thoughtless ways, methods and practices
cause a disservice to their office and maim
their countrymen they are sworn to serve
and protect. We thus caution government
agents, particularly the law enforcers, to be
more prudent in the prosecution of cases and
not to be oblivious of human rights protected
by the fundamental law. While we greatly
applaud their determined efforts to weed
society of felons, let not their impetuous
eagerness violate constitutional precepts
which circumscribe the structure of a
civilized community.

WHEREFORE, the petition for certiorari and

prohibition is GRANTED. The temporary
restraining order we issued on 28 February
1994 in favor of petitioners, Atty. Diosdado
Jose Allado and Atty. Roberto L. Mendoza, is
made permanent. The warrant of arrest
issued against them is SET ASIDE and
respondent Judge Roberto C. Diokno is
ENJOINED from proceeding any further
against herein petitioners in Crim. Case No.
94-1757 of the Regional Trial Court of Makati.
SO ORDERED

G.R. No. 82544 June 28, 1988

IN THE MATTER OF THE PETITION FOR
HABEAS CORPUS OF: ANDREW HARVEY,
JOHN SHERMAN and ADRIAAN VAN DEL
ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM
DEFENSOR SANTIAGO, COMMISSION ON
IMMIGRATION
AND
DEPORTATION,
respondent.
MELENCIO-HERRERA, J.:
A petition for Habeas Corpus.
Petitioners
Andrew
Harvey
and
John
Sherman, 52 and 72 years, respectively, are
both
American
nationals
residing
at
Pagsanjan, Laguna, while Adriaan Van
Elshout, 58 years old, is a Dutch citizen also
residing at Pagsanjan, Laguna.
The case stems from the apprehension of
petitioners on 27 February 1988 from their
respective residences by agents of the
Commission on Immigration and Deportation
(CID) by virtue of Mission Orders issued by
respondent Commissioner Miriam Defensor
Santiago of the CID. Petitioners are presently
detained at the CID Detention Center.
Petitioners were among the twenty-two (22)
suspected alien pedophiles who were
apprehended after three months of close
surveillance by CID agents in Pagsanjan,
Laguna. Two (2) days after apprehension, or
on 29 February 1988, seventeen (17) of the
twenty-two (22) arrested aliens opted for
self-deportation and have left the country.
One was released for lack of evidence;
another was charged not for being a
pedophile but for working without a valid
working visa. Thus, of the original twenty two
(22), only the three petitioners have chosen
to face deportation.
Seized during petitioners apprehension were
rolls of photo negatives and photos of the
suspected child prostitutes shown in
salacious poses as well as boys and girls
engaged in the sex act. There were also
posters and other literature advertising the
child prostitutes.
The "Operation Report," on Andrew Harvey
and Richard Sherman dated 29 February
1988 stated:
xxx xxx xxx
ANDREW MARK HARVEY was found together
with two young boys.
RICHARD SHERMAN was found with two
naked boys inside his room.

In respect of Van Den Elshout the "After

Mission Report," dated 27 February 1988
read in part:
Noted:
There were two (2) children ages 14 & 16
which subject readily accepted having been
in his care and live-in for quite sometime.
On 4 March 1988, deportation proceedings
were instituted against petitioners for being
undesirable aliens under Section 69 of the
Revised Administrative Code (Deportation
Case No. 88-13). The "Charge Sheet" read
inter alia:
Wherefore,
this
Office
charges
the
respondents for deportation, as undesirable
aliens, in that: they, being pedophiles, are
inimical to public morals, public health and
public safety as provided in Section 69 of the
Revised Administrative Code.
On 7 March 1988, Warrants of Arrest were
issued by respondent against petitioners for
violation of Sections 37, 45 and 46 of the
Immigration Act and Section 69 of the
Revised Administrative Code On the same
date, the Board of Special Inquiry III
commenced trial against petitioners.
On 14 March 1988, petitioners filed an
Urgent Petition for Release Under Bond
alleging that their health was being seriously
affected by their continuous detention. Upon
recommendation
of
the
Board
of
Commissioners for their provisional release,
respondent ordered the CID doctor to
examine petitioners, who certified that
petitioners were healthy.
On 22 March 1988, petitioners filed a Petition
for Bail which, however, respondent denied
considering the certification by the CID
physician that petitioners were healthy. To
avoid
congestion,
respondent
ordered
petitioners' transfer to the CID detention cell
at Fort Bonifacio, but the transfer was
deferred pending trial due to the difficulty of
transporting them to and from the CID where
trial was on-going.
On 4 April 1988 petitioner Andrew Harvey
filed a Manifestation/Motion stating that he
had "finally agreed to a self-deportation" and
praying that he be "provisionally released for
at least 15 days and placed under the
custody of Atty. Asinas before he voluntarily
departs the country." On 7 April 1988, the
Board of Special Inquiry III allowed
provisional release of five (5) days only
under certain conditions. However, it appears
that on the same date that the aforesaid

Manifestation/ Motion was filed, Harvey and

his co-petitioners had already filed the
present petition.
On 4 April 1988, as heretofore stated,
petitioners availed of this Petition for a Writ
of Habeas Corpus. A Return of the Writ was
filed by the Solicitor General and the Court
heard the case on oral argument on 20 April
1988. A Traverse to the Writ was presented
by petitioners to which a Reply was filed by
the Solicitor General.
Petitioners question the validity of their
detention on the following grounds:
1) There is no provision in the Philippine
Immigration Act of 1940 nor under Section
69 of the Revised Administrative Code, which
legally clothes the Commissioner with any
authority to arrest and detain petitioners
pending determination of the existence of a
probable cause leading to an administrative
investigation.
2) Respondent violated Section 2, Article III
of
the
1987
Constitution
prohibiting
unreasonable searches and seizures since
the CID agents were not clothed with valid
Warrants of arrest, search and seizure as
required by the said provision.
3) Mere confidential information made to the
CID agents and their suspicion of the
activities of petitioners that they are
pedophiles, coupled with their association
with other suspected pedophiles, are not
valid legal grounds for their arrest and
detention unless they are caught in the act.
They further allege that being a pedophile is
not punishable by any Philippine Law nor is it
a crime to be a pedophile.
We reject petitioners' contentions and uphold
respondent's official acts ably defended by
the Solicitor General.
There can be no question that the right
against unreasonable searches and seizures
guaranteed by Article III, Section 2 of the
1987 Constitution, is available to all persons,
including aliens, whether accused of crime or
not (Moncado vs. People's Court, 80 Phil. 1
[1948].
One
of
the
constitutional
requirements of a valid search warrant or
warrant of arrest is that it must be based
upon probable cause. Probable cause has
been defined as referring to "such facts and
circumstances antecedent to the issuance of
the warrant that in themselves are sufficient
to induce a cautious man to rely on them and
act in pursuance thereof." (People vs. Syjuco
64 Phil. 667 [1937]; Alverez vs. CFI, 64 Phil.

33 [1937]).
The 1985 Rules on Criminal Procedure also
provide that an arrest wit a warrant may be
effected by a peace officer or even a private
person (1) when such person has committed,
actually committing, or is attempting to
commit an offense in his presence; and (2)
when an offense has, in fact, been
committed and he has personal knowledge
of facts indicating that the person to be
arrested has committed it (Rule 113, Section
5).
In this case, the arrest of petitioners was
based on probable cause determined after
close surveillance for three (3) months
during which period their activities were
monitored. The existence of probable cause
justified the arrest and the seizure of the
photo negatives, photographs and posters
without warrant (See Papa vs. Mago, L27360, February 28, 1968,22 SCRA 857;
People vs. Court of First Instance of Rizal, L41686, November 17, 1980, 101 SCRA 86,
cited in CRUZ, Constitutional Law, 1987 ed.,
p. 143). Those articles were seized as an
incident to a lawful arrest and, are therefore,
admissible in evidence (Section 12, Rule
126,1985 Rules on criminal Procedure).
But even assuming arguendo that the arrest
of petitioners was not valid at its inception,
the records show that formal deportation
charges have been filed against them, as
undesirable aliens, on 4 March 1988.
Warrants of arrest were issued against them
on 7 March 1988 "for violation of Section 37,
45 and 46 of the Immigration Act and Section
69 of the Administrative Code." A hearing is
presently being conducted by a Board of
Special Inquiry. The restraint against their
persons, therefore, has become legal. The
Writ has served its purpose. The process of
the law is being followed (Cruz vs. Montoya,
L-39823, February 25, 1975, 62 SCRA 543).
"were a person's detention was later made
by virtue of a judicial order in relation to
criminal cases subsequently filed against the
detainee, his petition for hebeas corpus
becomes moot and academic" (Beltran vs.
Garcia, L-49014, April 30, 1979, 89 SCRA
717). "It is a fumdamental rule that a writ of
habeas corpus will not be granted when the
confinement is or has become legal,
although such confinement was illegal at the
beginning" (Matsura vs. Director of Prisons,
77 Phil. 1050 [1947]).
That petitioners were not "caught in the act"

does not make their arrest illegal. Petitioners

were found with young boys in their
respective rooms, the ones with John
Sherman
being
naked.
Under
those
circumstances
the
CID
agents
had
reasonable
grounds
to
believe
that
petitioners had committed "pedophilia"
defined
as
"psychosexual
perversion
involving children" (Kraft-Ebbing Psychopatia
Sexualis p. 555; Paraphilia (or unusual sexual
activity) in which children are the preferred
sexual
object"
(Webster's
Third
New
International Dictionary, 1971 ed., p. 1665)
[Solicitor General's Return of the Writ, on p.
101. While not a crime under the Revised
Penal Code, it is behavior offensive to public
morals and violative of the declared policy of
the State to promote and protect the
physical, moral, spiritual, and social wellbeing of our youth (Article II, Section 13,
1987 Constitution).
At any rate, the filing by petitioners of a
petition to be released on bail should be
considered as a waiver of any irregularity
attending their arrest and estops them from
questioning
its
validity
(Callanta
v.
Villanueva, L-24646 & L-24674, June 20,
1977, 77 SCRA 377; Bagcal vs. Villaraza, L61770, January 31, 1983, 120 SCRA 525).
The deportation charges instituted by
respondent Commissioner are in accordance
with Section 37(a) of the Philippine
Immigration Act of 1940, in relation to
Section 69 of the Revised Administrative
Code. Section 37(a) provides in part:
(a) The following aliens shall be arrested
upon the warrant of the Commissioner of
Immigration and Deportation or any other
officer designated by him for the purpose
and deported upon the warrant of the
Commissioner
of
Immigration
and
Deportation after a determination by the
Board of Commissioners of the existence of
the ground for deportation as charged
against the alien;
xxx xxx xxx
The foregoing provision should be construed
in its entirety in view of the summary and
indivisible
nature
of
a
deportation
proceeding, otherwise, the very purpose of
deportation proceeding would be defeated.
Section
37(a)
is
not
constitutionally
proscribed (Morano vs. Vivo, L-22196, June
30, 1967, 20 SCRA 562). The specific
constraints in both the 1935 1 and 1987 2
Constitutions,
which
are
substantially

Identical,
contemplate
prosecutions
essentially criminal in nature. Deportation
proceedings, on the other hand, are
administrative in character. An order of
deportation is never construed as a
punishment. It is preventive, not a penal
process. It need not be conducted strictly in
accordance with ordinary Court proceedings.
It is of course well-settled that deportation
proceedings do not constitute a criminal
action. The order of deportation is not a
punishment, (Maliler vs. Eby, 264 U.S., 32), it
being merely the return to his country of an
alien who has broken the conditions upon
which he could continue to reside within our
borders (U.S. vs. De los Santos, 33 Phil.,
397). The deportation proceedings are
administrative in character, (Kessler vs.
Stracker 307 U.S., 22) summary in nature,
and need not be conducted strictly in
accordance
with
the
ordinary
court
proceedings (Murdock vs. Clark, 53 F. [2d],
155). It is essential, however, that the
warrant of arrest shall give the alien
sufficient information about the charges
against him, relating the facts relied upon.
(U.S. vs. Uhl 211 F., 628.) It is also essential
that he be given a fair hearing with the
assistance of counsel, if he so desires, before
unprejudiced investigators (Strench vs.
Pedaris, 55 F. [2d], 597; Ex parte Jew You On,
16 F. [2d], 153). However, all the strict rules
of evidence governing judicial controversies
do not need to be observed; only such as are
fumdamental and essential like the right of
cross-examination. (U.S. vs. Hughes, 104 F.
[2d], 14; Murdock vs. Clark, 53 F. [2d], 155.)
Hearsay evidence may even be admitted,
provided the alien is given the opportunity to
explain or rebut it (Morrell vs. Baker, 270 F.,
577; Sercerchi vs. Ward, 27 F. Supp., 437).
(Lao Tang Bun vs. Fabre 81 Phil. 682 [1948]).
The ruling in Vivo vs. Montesa (G. R. No.
24576, July 29, 1968, 24 SCRA 155) that "the
issuance of warrants of arrest by the
Commissioner of Immigration, solely for
purposes of investigation and before a final
order of deportation is issued, conflicts with
paragraph 3, Section I of Article III of the
Constitution"
(referring
to
the
1935
Constitution) 3 is not invocable herein.
Respondent Commissioner's Warrant of
Arrest issued on 7 March 1988 did not order
petitioners to appear and show cause why
they should not be deported. They were
issued specifically "for violation of Sections

37, 45 and 46 of the Immigration Act and

Section 69 of the Revised Administrative
Code." Before that, deportation proceedings
had been commenced against them as
undesirable aliens on 4 March 1988 and the
arrest was a step preliminary to their
possible deportation.
Section 37 of the Immigration Law, which
empowers the Commissioner of Immigration
to issue warrants for the arrest of
overstaying aliens is constitutional. The
arrest is a stop preliminary to the deportation
of the aliens who had violated the condition
of their stay in this country. (Morano vs. Vivo,
L-22196, June 30, 1967, 20 SCRA 562).
To rule otherwise would be to render the
authority given the Commissioner nugatory
to the detriment of the State.
The pertinent provision of Commonwealth
Act No. 613, as amended, which gives
authority
to
the
Commissioner
of
Immigration to order the arrest of an alien
temporary
visitor
preparatory
to
his
deportation for failure to put up new bonds
required for the stay, is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable the
Commissioner to prepare the ground for his
deportation
under
Section
37[al
of
Commonwealth
Act
613.
A
contrary
interpretation would render such power
nugatory to the detriment of the State. (Ng
Hua To vs. Galang, G. R. No. 10145, February
29, 1964, 10 SCRA 411).
"The requirement of probable cause, to be
determined by a Judge, does not extend to
deportation proceedings." (Morano vs. Vivo,
supra, citing Tiu Chun Hai vs. Commissioner,
infra). There need be no "truncated" recourse
to both judicial and administrative warrants
in a single deportation proceedings.
The foregoing does not deviate from the
ruling in Qua Chee Gan vs. Deportation
Board (G. R. No. 10280, September 30, 1963,
9 SCRA 27 [1963]) reiterated in Vivo vs.
Montesa, supra, that "under the express
terms of our Constitution (the 1935
Constitution), it is therefore even doubtful
whether the arrest of an individual may be
ordered by any authority other than a judge
if the purpose is merely to determine the
existence of a probable cause, leading to an
administrative
investigation."
For,
as
heretofore stated, probable cause had
already been shown to exist before the
warrants of arrest were issued.

What is essential is that there should be a

specific charge against the alien intended to
be arrested and deported, that a fair hearing
be conducted (Section 37[c]) with the
assistance of counsel, if desired, and that the
charge be substantiated by competent
evidence. Thus, Section 69 of the Revised
Administrative Code explicitly provides:
Sec. 69. Deportation of subject of foreign
power. A subject of a foreign power residing
in the Philippines shall not be deported,
expelled, or excluded from said Islands or
repatriated to his own country by the
President of the Philippines except upon prior
investigation, conducted by said Executive or
his authorized agent, of the ground upon
which such action is contemplated. In such a
case the person concerned shall be informed
of the charge or charges against him and he
shall be allowed not less than 3 days for the
preparation of his defense. He shall also have
the right to be heard by himself or counsel,
to produce witnesses in his own behalf, and
to cross-examine the opposing witnesses.
The denial by respondent Commissioner of
petitioners' release on bail, also challenged
by them, was in order because in deportation
proceedings, the right to bail is not a matter
of right but a matter of discretion on the part
of the Commissioner of Immigration and
Deportation. Thus, Section 37(e) of the
Philippine Immigration Act of 1940 provides
that "any alien under arrest in a deportation
proceeding may be released under bond or
under such other conditions as may be
imposed
by
the
Commissioner
of
Immigration." The use of the word "may" in
said provision indicates that the grant of bail
is merely permissive and not mandatory on
the part of the Commissioner. The exercise of
the power is wholly discretionary (Ong Hee
Sang vs. Commissioner of Immigration, L9700, February 28,1962, 4 SCRA 442).
"Neither the Constitution nor Section 69 of
the Revised Administrative Code guarantees
the right of aliens facing deportation to
provisional liberty on bail." (Tiu Chun Hai et
al vs. Deportation Board, 104 Phil. 949
[1958]). As deportation proceedings do not
partake of the nature of a criminal action, the
constitutional guarantee to bail may not be
invoked by aliens in said proceedings (Ong
Hee Sang vs. Commissioner of Immigration,
supra).
Every sovereign power has the inherent
power to exclude aliens from its territory

upon such grounds as it may deem proper

for its self-preservation or public interest (Lao
Tan Bun vs. Fabre 81 Phil. 682 [1948]). The
power to deport aliens is an act of State, an
act done by or under the authority of the
sovereign power (In re McCulloch Dick, 38
Phil. 41 [1918]). It is a police measure
against undesirable aliens whose continued
presence in the country is found to be
injurious to the public good and the domestic
tranquility of the people (Forbes vs. Chuoco
Tiaco et al., 16 Phil. 534 [1910]). Particularly
so in this case where the State has expressly
committed itself to defend the tight of
children to assistance and special protection
from all forms of neglect, abuse, cruelty,
exploitation, and other conditions prejudicial
to their development (Article XV, Section
3[2]).
Respondent
Commissioner
of
Immigration and Deportation, in instituting
deportation proceedings against petitioners,
acted in the interests of the State.
WHEREFORE, the Petition is dismissed and
the Writ of Habeas Corpus is hereby denied.
SO ORDERED.

G.R. No. 78596 July 13, 1989

IN THE MATTER OF THE PETITION FOR
HABEAS CORPUS OF: LUCIEN TRAN VAN
NGHIA, petitioner,
vs.
HON.
RAMON
J.
LIWAG,
Acting
Commissioner of the Commission on
Immigration and Deportation (CID) and
JOHN DOES, agents of the CID,
respondents.
Emmanuel O. Sales for petitioner.
FERNAN, C.J.:
This is a petition for the issuance of a writ of
habeas corpus filed by Lucien Tran Van Nghia
alleging that he was arrested without warrant
and deprived of his liberty by respondent
Commissioner
of
Immigration
and
Deportation and his agents.
Petitioner Lucien Tran Van Nghia is a French
national with temporary address in Sta. Ana,
Manila. Originally admitted to the Philippines
on November 1, 1981 as a temporary visitor,
his status was changed to that of an
immigrant on November 16, 1984 based on
his representation that he is financially
capable and will invest in the Philippines. To
date, however, petitioner has not made any
investment and has engaged only in French
tutoring and practice of acupressure.
On
May
28,
1987,
respondent
CID
Commissioner Ramon J. Liwag received a
sworn complaint from a certain Dionisio G.
Cabrera, Jr., allegedly petitioner's landlord,
accusing petitioner of being an undesirable
alien for "committing acts inimical to public
safety and progress." 1
Acting thereon, respondent Commissioner
Liwag issued on June 1, 1987 a mission order
to a team of seven (7) CID agents for them
"to locate and bring subject to Intelligence
Division for proper disposition" and "submit
report." 2
On June 2, 1987, the aforementioned CID
agents went to petitioner's residence in Sta.
Ana to invite the latter to the CID
headquarters for verification of his status but
petitioner and his then lady companion
reportedly locked themselves inside their
bedroom and refused to talk to the agents.
The immigration agents then sought the
assistance of members of the Western Police

District. Once again petitioner adamantly

refused to be taken in and in the ensuing
struggle, both petitioner and the lawmen
were injured. Finally, petitioner was subdued
and
immediately
taken
to
the
CID
Intelligence Office.
A warrant of arrest was issued by respondent
Commissioner on June 2, 1987 but there is
nothing in the records to convince this Court
that said warrant was served on petitioner
prior to his apprehension. Said warrant was
based
on
the
following
acts
and
circumstances:
That he applied for and was granted
permanent status on his representation that
he is financially capable of investing in the
Philippines but he made no investments but
engaged in tutoring in French and practice of
acupressure; that he wilfully refused to
recognize the authority of immigration
agents who were sent to invite him to CID for
verification of his status and physically
resisted being taken in by the agents
resulting in physical injuries to himself and
the agents; that he has thereby made
himself an undesirable alien subject to
deportation. 3
By reason of the injuries he allegedly
sustained when he was "brutally seized" by
the CID agents, petitioner, upon request of
the French consul, was transferred from his
detention cell at the immigration office to the
Philippine General Hospital for urgent
medical treatment.
On June 10, 1987, petitioner's counsel filed
the instant petition for habeas corpus to
avert the "threatened removal" of petitioner
from PGH and to question the validity of his
detention by respondent Commissioner. A
return of the writ was filed by the Solicitor
General and the Court heard the case on oral
argument on June 17,1987. Thereafter, the
parties were required to submit their
respective memoranda.
The core issue is the legality of the arrest
and
detention
of
petitioner
by
the
Immigration Commissioner preparatory to
deportation proceedings. Petitioner insists
that respondent official has no power,
authority or jurisdiction to cause his arrest
because under the 1987 Constitution, it is
provided that "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 ... ." 4
The aforesaid argument raised by petitioner
has been resolved in the case of Harvey vs.
Defensor-Santiago, G.R. No. 82544, June 28,
1988, where the Court, through Madame
Justice Melencio-Herrera, said:
The requirement of probable cause to be
determined by a Judge, does not extend to
deportation proceedings.' (Morano vs. Vivo,
supra, citing Tiu Chun Hai vs. Commissioner,
infra). There need be no 'truncated' recourse
to both judicial and administrative warrants
in a single deportation proceeding.
The foregoing does not deviate from the
ruling in Qua Chee Gan vs. Deportation
Board (G.R. No. 10280, September 30,1963,
9 SCRA 27 [1963] reiterated in Vivo vs.
Montesa, supra, that 'under the express
terms of our Constitution (the 1935
Constitution)), it is therefore even doubtful
whether the arrest of an individual may be
ordered by authority other than a judge if the
purpose is merely to determine the existence
of a probable cause, leading to an
administrative investigation.
What is essential is that there should be a
specific charge against the alien intended to
be arrested and deported, that a fair hearing
be conducted (Section 37 [c] with the
assistance of counsel, if desired, and that the
charge be substantiated by competent
evidence. ... .
The particular circumstances obtaining in the
case at bar have seriously placed on doubt
the legality and propriety of petitioner's
apprehension by respondent Commissioner.
For unlike in the Harvey case where the
warrantless capture of two suspected alien
pedophiles was based on probable cause
ascertained only after close surveillance for a
three-month period during which their
activities were monitored, herein petitioner
was "invited" by a combined team of CID
agents and police officers at his apartment
unit on the strength of a mission order issued
by the Commissioner on Immigration based
on a sworn complaint of a single individual.
The essential requisite of probable cause was
conspicuously absent.
But even assuming that the arrest of
petitioner was not legal at the beginning,
certain events have supervened to render his
petition moot and academic or to otherwise
cure whatever defect there was at the
inception of his arrest.

Firstly, petitioner is no longer under

confinement. On June 20, 1987, petitioner
was released upon the posting and approval
of a personal bailbond on June 19,1987 in the
amount of P20,000.00 during the pendency
of the administrative proceedings by the CID
or until further orders of the Court. 5 The
general rule in a number of cases is that the
release, whether permanent or temporary, of
a detained person renders the petition for
habeas corpus moot and academic, unless
there are restraints attached to his release
which precludes freedom of action, in which
case the Court can still inquire into the
nature of his involuntary restraint under the
Villavicencio vs. Lukban rule. 6
In Moncupa vs. Enrile, supra, the Court
granted the writ of habeas corpus inspite of
the fact that petitioner Moncupa had been
temporarily released from detention on
orders of the defense minister. In the
Moncupa case, it was shown that attached to
his discharge was the prohibition to travel, to
change his abode and to grant interviews to
members of the mass media without official
permission. He was also ordered to report
regularly to the military authorities. The
Court subsequently nullified said conditions
and ruled:
Such restrictions limit the freedom of
movement of the petitioner. It is not physical
restraint alone which is inquired into by the
writ of habeas corpus. .. . 7
Where a person continues to be unlawfully
denied one or more of his constitutional
freedoms, where there is present a denial of
due process, where the restraints are not
merely involuntary but appear to be
unnecessary, and where a deprivation of
freedom originally valid has, in the light of
subsequent developments, become arbitrary,
the person concerned or those applying in
his behalf may still avail themselves of the
privilege of the writ. 8
Petitioner Lucien Tran Van Nghia is not
similarly restrained. The only condition in his
bailbond is that ordinarily found in any other
analogous undertaking, which is "to appear
and answer the complaint x x x; will at all
times hold himself ... amenable to the orders
and processes of the Court; and after
conviction, he will surrender himself ... in
execution of such judgment ... ." 9
Secondly,
records
show
that
formal
deportation proceedings have been initiated
against petitioner before the Board of Special

Inquiry of the CID. 10 The restraint (if any)

against petitioner's person has therefore
become legal. The writ of habeas corpus has
served its purpose. 11
WHEREFORE, the petition is DISMISSED.

So ordered.

[G.R. No. 139255. November 24, 2003]

RAYMOND MICHAEL JACKSON, petitioner, vs. HON. FLORITO S. MACALINO, RUFUS B.
RODRIGUEZ, BUREAU OF IMMIGRATION, JOHN DOE and JANE DOE, respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for certiorari under Rule 65 of the Rules of Court, as amended, for the reversal
of the Decisionof the Regional Trial Court (RTC) of Pasay City, Branch 267, in Special Proceedings
No. 10948 dismissing the petition for habeas corpus filed by the petitioner.
The Antecedents
SPO3 Rodolfo M. Villaceran of the Philippine National Police (PNP) filed an application with the
RTC of Angeles City, Pampanga, for the issuance of a search warrant against petitioner Raymond
M. Jackson, an American citizen, a.k.a. Allen Miller, and Jaime C. Bueta for the search of the
articles listed therein at No. 17-21 Apple Street, Hensonville Homes, Balibago, Angeles City, and
the seizure thereof for violation of Article 176 of the Revised Penal Code. Judge Bernardita G.
Erum granted the application and issued Search Warrant No. 97-29 on November 29, 1997.The
search was conducted on the said date; articles were seized and the petitioner and Bueta were
apprehended and detained. Among the articles found in the possession of the petitioner was
U.S. Passport No. Z4613110 issued on June 2, 1983 by the U.S. Embassy in Manila to and in the
name of Raymond Michael Jackson, born on October 17, 1951 in South Dakota; and U.S. Passport
No. 085238399 issued on August 15, 1996 by the New Orleans Passport Agency, Louisiana to and
under the name of Steven Bernard Bator, born on August 20, 1949 in Detroit, Michigan.
Another application for a search warrant was filed by SPO3 Pedro B. Barsana, Jr. with the RTC of
Makati City for violation of Article 176 of the Revised Penal Code for the search of the premises at
No. 5518 Second Floor, Macodyn Building, South Superhighway (corner Pasay Road), Makati City
under the contract of Raymond Jackson a.k.a. Allen Miller and Bernard Bator and for the seizure
of the articles described therein. Acting on the application on November 28, 1997, Judge Pedro
N. Laggui of Branch 60 of the RTC issued Search Warrant No. 97-029.
On December 2, 1997, an Information docketed as Criminal Case No. 97-2078 was filed with the
Municipal Trial Court of Angeles City against the petitioner and Bueta for violation of Article 176
of the Revised Penal Code.
When apprised of the seizure of the aforementioned passports from the petitioner, U.S. Vice
Consul Raymond Greene of the United States Embassy in the Philippines advised the Department
of Justice on December 10, 1997 that the said passports had been cancelled. Summary
deportation proceedings were initiated at the Commission of Immigration and Deportation (CID)
against the petitioner docketed as SDO No. BOC 97-46. On December 11, 1997, the Board of
Commissioners (BOC) issued an Order ordering the summary deportation of the petitioner to his
country of origin and directing the Chief of Civil Security Unit to implement the order within three
days from notice thereof, subject to compliance with the 1997 Deportation Rules of Procedures Office Memorandum No. ELM-97-013. In the meantime, the name of the petitioner was included
in the blacklist of the CID.
Aside from the aforementioned criminal cases, other criminal cases were filed against Jackson
with the RTC as follows:
Criminal Case No.
The Accused
In What Court Cases
are Pending
1. 98-1155
Raymond Michael Jackson
Makati RTC
alias Allen Miller
Branch 133
2. 98-903
Raymond Jackson
Makati RTC
Branch 135
3. 97-202
Raymond M. Jackson
QC RTC
a.k.a. Allen Miller and Jaime Bueta Branch 83

4. 98-1152

Raymond Jackson

Makati RTC -Branch 135

On December 7, 1997, the Quezon City RTC ordered the release of the petitioner in Criminal Case
No. 97-202 after posting a P6,000 bail.
On September 18, 1998, the Makati RTC issued an order in Criminal Case No. 98-1155 directing
the CID to hold the departure of the petitioner from the Philippines in view of the pending
criminal cases against him. On September 28, 1998, the Makati RTC ordered the release of the
petitioner in Criminal Case No. 98-1152 after he posted bail in the amount of P40,000.
On October 1, 1998, the petitioner filed a motion for reconsideration with the CID for the
reconsideration of the BOC Order dated December 11, 1997 directing his deportation. He alleged
inter alia that: (a) he was married to Lily Morales by whom he had two children: Cristina Jackson
and Judaline Jackson; (b) his status was converted into that of a permanent resident on
September 30, 1987 under Section 13-A of the Immigration Act, as amended with Official
Passport No. 3121487; (c) his deportation from the Philippines would deprive him of the
opportunity to defend himself in the criminal cases pending against him. He appended to his
motion a copy of his marriage contract with Lily Morales and their childrens birth certificates.
On October 14, 1998, the CID issued an order denying the petitioners motion for reconsideration
for lack of merit.
The petitioner could not be deported because he filed a petition to lift the summary order of
deportation with the CID which as of December 15, 1998 had not yet been resolved, pending the
issuance of clearances from the NBI and PNP, travel documents and an airplane ticket.
On May 18, 1999, Tedd Archabal, Vice Consul of the Anti-Fraud Unit in the U.S. Embassy in
Manila, issued a certification that U.S. Passport No. Z4613110 issued to and under the name of
Raymond Michael Jackson and No. 085238399 issued to Steven Bernard Bator had been
cancelled because the persons appearing in the photographs affixed in the said passports did not
match those appearing in the photographs affixed in the original applications for the issuance of
the same. The CID issued Mission Order No. RBR-99-164 on May 21, 1999 for the petitioners
arrest for being an undesirable alien under Section 37(a), paragraph 9 of the Philippine
Immigration Act of 1940, as amended, based on the hold departure order in Criminal Case No.
98-1155 and the certification of Vice Consul Tedd Archabal. The petitioner was arrested by P/C
Inspector James B. Mejia of the Foreign Intelligence and Liaison Office, PNP Intelligence Group,
Camp Crame, Quezon City, who turned him over to the CID on the said date.
The petitioner filed a petition for habeas corpus with the Court on June 28, 1999 against the
Commissioner of the CID and John Doe and Jane Doe; and on the same date, the Court issued a
resolution (a) directing the issuance of a writ of habeas corpus and the respondents to make a
return of the writ on or before July 2, 1999 at 8:30 a.m.; (b) ordering the Pasig RTC Judge to
whom the case would be raffled to conduct a hearing of the petition, to render judgment and to
serve a copy of its decision within two days from its promulgation.
In their return filed with the RTC on July 8, 1999, the respondents alleged inter alia that the
petitioner was arrested and detained at the CID on the basis of the summary deportation order
issued by the BOC on December 11, 1997 and of the hold departure order of the Makati RTC in
Criminal Case No. 98-1155; the petitioners petition for habeas corpus was premature as there
was a pending petition to lift the summary deportation order before the BOC filed by him. On July
15, 1999, the RTC rendered a decision dismissing the petition of Jackson and denied his plea for a
writ of habeas corpus.
The petitioner assails the decision of the RTC and prays for the reversal thereof, contending that:
A.
RODRIGUEZ CANNOT ISSUE WARRANTS OF ARREST SINCE ONLY JUDGES CAN ISSUE THE
SAME.
B.
ASSUMING, WITHOUT CONCEDING, THAT RODRIGUEZ CAN ISSUE WARRANTS OF ARREST,
SUCH CAN ONLY BE ISSUED TO ENFORCE A FINAL ORDER OF DEPORTATION; HOWEVER, IN THE
INSTANT CASE, THERE IS NO FINAL ORDER OF DEPORTATION.
C.
PETITIONERS RIGHT TO DUE PROCESS HAS BEEN VIOLATED.
The petitioner avers that under Article III, Section 2 of the Philippine Constitution, only judges are
vested with authority to issue warrants for the arrest of persons, including aliens. Even if it is
assumed that the Commissioner of the CID is authorized to issue a warrant of arrest, this is
limited only to those cases where a final order of deportation had already been issued by the
BOC, and only for the purpose of implementing the said order. According to the petitioner, the
order of deportation issued by the BOC on December 11, 1999 is illegal; hence, null and void.

The petitioner was not apprised of any specific charges filed against him with the CID and was
not heard on the said charges as required by law before the order was issued. The petitioner
asserts that there was no probable cause for his arrest by the CID and that the respondents even
violated the Memorandum Circular of the Secretary of Justice dated June 7, 1999. The petitioner
cited the ruling of the Court in Lao Gi v. CA to fortify his petition.
In their comment on the petition, the respondents averred that the CID is authorized under
Section 37(a) of the Philippine Immigration Act of 1940, as amended, to issue warrants for the
arrest of aliens on the CIDs finding of the existence of a ground for deportation. The petitioner
cannot feign lack of due process because he filed a motion for the reconsideration of the
December 11, 1997 Order of the BOC ordering his summary deportation which the BOC denied
on October 14, 1998. When Mission Order RBR-99-164 was issued on May 21, 1999 to effect the
arrest of the petitioner, it was on the basis of a final and executory order of deportation. The
RTC, for its part, held that (a) the petition was premature because the petitioners petition with
the CID to lift the summary order of deportation had not yet been resolved by the BOC of the
CID; (b) the petition for habeas corpus was inappropriate because the petitioner was validly
detained under a mission order issued by the Commissioner based on the order of deportation
issued by the BOC on December 11, 1997; (c) the petitioner is estopped from assailing his arrest
and detention by the CID.
The petition is dismissed.
Section 1, Rule 102 of the Rules of Court, as amended, provides that except as otherwise
expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal
confinement or detention by which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto. The ultimate purpose of the
writ of habeas corpus is to relieve a person from unlawful restraint. It is essentially a writ of
inquiry and is granted to test the right under which he is detained. Section 4, Rule 102 of the said
Rules provides when the writ of habeas corpus is not allowed or discharged authorized:
Sec. 4. When writ not allowed or discharged authorized. If it appears that the person alleged to
be restrained of his liberty is in the custody of an officer under process issued by a court or judge
or by virtue of a judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment; or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged
by reason of any informality or defect in the process, judgment, or order. Nor shall anything in
this rule be held to authorize the discharge of a person charged with or convicted of an offense in
the Philippines, or of a person suffering imprisonment under lawful judgment.
The term court includes quasi-judicial bodies like the Deportation Board of the Bureau of
Immigration.
Even if the arrest of a person is illegal, supervening events may bar his release or discharge from
custody. What is to be inquired into is the legality of his detention as of, at the earliest, the filing
of the application for a writ of habeas corpus, for even if the detention is at its inception illegal, it
may, by reason of same supervening events such as the instances mentioned in Section 4, Rule
102, be no longer illegal at the time of the filing of the application. Any such supervening events
are the issuance of a judicial process preventing the discharge of the detained person.
As a general rule, the burden of proving illegal restraint by the respondents rests on the
petitioner who attaches such restraints. Whether the return sets forth process where on its face
shows good ground for the detention of the petitioner, it is incumbent on him to allege and prove
new matter that tends to invalidate the apparent effects of such process.
Section 13 of Rule 102 of the Rules of Court, as amended, provides that if it appears that the
detained person is in custody under a warrant of commitment in pursuance of law, the return
shall be considered prima facie evidence of the cause of restraint:
Sec. 13. When the return evidence, and when only a plea. If it appears that the prisoner is in
custody under a warrant of commitment in pursuance of law, the return shall be considered
prima facie evidence of the cause of restraint; but if he is restrained of his liberty by any alleged
private authority, the return shall be considered only as a plea of the facts therein set forth, and
the party claiming the custody must prove such facts.
In this case, based on the return of the writ by the respondents, the petitioner was arrested and
detained at the CID detention center at Bicutan, Paraaque City, under Mission Order No. RBR-

99-164 dated May 21, 1999 based on the Order of the BOC dated December 11, 1997 which had
become final and executory. The BOC found, after due proceedings, that:
Records show that on 10 December 1997, Vice Consul Raymond Greene of the U.S. Embassy in
Manila advised the Department of Justice that the U.S. passports which were confiscated from
the above named respondent when he was arrested by PNP operatives in Angeles City on 30
November 1997 and purportedly issued to Raymond Michael Jackson and Steven Bernard Bator
have been determined to have been tampered. As a consequence, said passports were
cancelled by the U.S. Embassy.
In Schonemann vs. Commissioner Santiago, et al., (G.R. No. 86461, 30 May 1989), the Supreme
Court ruled that if a foreign embassy cancels the passport of an alien, or does not reissue a valid
passport to him, the alien loses the privilege to remain in the country.
WHEREFORE, in view of the foregoing, the Board of Commissioners hereby orders the summary
deportation of NORMAN LLOYD @ RAYMOND MICHAEL JACKSON @ STEVEN BERNARD BATOR to
his country of origin subject to compliance with the 1997 Deportation Rules of Procedures-Office
Memorandum Order No. ELM-97-013.
The Chief of the Civil Security Unit is hereby ordered to implement this Order within three (03)
days from receipt hereof.
Include respondents name on the Blacklist.
Give respondent a copy hereof.
The information relayed by U.S. Vice Consul Raymond Greene to the DOJ on December 10, 1997
was reiterated by U.S. Vice Consul Tedd Archabal in his certification forwarded to the DOJ on May
18, 1999, thus:
CERTIFICATION
I, Tedd Archabal, Vice Consul of the United States hereby certify that United States Passport
Number Z4613110 issued June 2, 1983 at the U.S. Embassy, Manila in the name of RAYMOND
MICHAEL JACKSON, born October 17, 1951 at South Dakota is a genuine United States
Government document that has been altered and photo substituted.
I also certify that United States Passport Number 085238399 issued August 15, 1996 at the New
Orleans Passport Agency, Louisiana, in the name of STEVEN BERNARD BATOR, born August 20,
1949 at Detroit, Michigan, is a genuine United States Government document that has been
altered and photo substituted, as well.
I further certify that a comparison of photographs affixed to U.S. Passports Number Z4613110
and 085238399 which were seized by Philippine National Police officers on or about November
29, 1997 from a man claiming to be Raymond Michael Jackson and photographs affixed to the
original applications for passports number Z4613110 and 085238399 in the names of Raymond
Michael Jackson and Steven Bernard Bator on file with the U.S. Department of State, Washington,
DC, revealed that these are not/not the same people.
The petitioners arrest and detention are in accord with Section 45(d) in relation to Section 37(a)
(9) of the Philippine Immigration Act of 1940 which respectively reads:
SEC. 45. (d)
being an alien, enters the Philippines without inspection and admission by
the immigration officials, or obtains entry into the Philippines by willful, false, or misleading
representation or willful concealment of a material fact;

SEC. 37. (a)

The following aliens shall be arrested upon the warrant of the Commissioner
of Immigration or of any other officer designated by him for the purpose and deported upon the
warrant of the Commissioner of Immigration after a determination by the Board of
Commissioners of the existence of the ground for deportation as charged against the alien:

(9)
Any alien who commits any of the acts described in Sections Forty-five and Forty-six of this
Act, independent of criminal action which may be brought against him:
In Tung Chin Hui v. Rodriguez, this Court held that such documents from a foreign embassy
attesting to the cancellation of the passports held by their national on the ground that the said
passports were tampered with; hence, cancelled were sufficient grounds for the arrest and
deportation of aliens from the Philippines:
The above-quoted official letters demonstrate the speciousness of the petitioners contention
that his passport could not have been cancelled in 1995, inasmuch as he was allowed to enter

the country as late as 1998. The letters show that the Philippine government was informed
about the cancellation only in 1998.
Furthermore, the foregoing letters of the official representative of the Taiwanese government
belie the petitioners submission that there was no evidence to prove the findings of the CA and
the Board of Commissioners. Verily, these documents constitute sufficient justification for his
deportation. As the Court held in the landmark case Forbes v. Chuoco Tiaco, [t]he mere fact
that a citizen or subject is out of the territory of his country does not relieve him from that
allegiance which he owes to his government, and his government may, under certain conditions,
properly and legally request his return.
The petitioner cannot feign ignorance of the charges against him in the CID and insist on being
deprived by the BOC of his right to due process as prescribed for in Section 37(c) of the
Philippine Immigration Act of 1940, thus:
(c)
No alien shall be deported without being informed of the specific grounds for deportation
nor without being given a hearing under rules of procedure to be prescribed by the
Commissioner of Immigration.
This is so because on October 1, 1998, the petitioner filed a motion with the CID for the
reconsideration of the December 11, 1997 Order of the BOC. The petitioner did not allege
therein that he was not informed of the charges against him. In fact, the petitioner did not even
rebut the claim of the U.S. Vice Consul that the passport he was carrying was tampered and had
been already cancelled. Neither did he allege that he requested for the reinstatement of his
passport with the United States Embassy. Despite the finality of the deportation order of the
BOC, it still entertained the petitioners motion for reconsideration but denied the same on its
findings that there were inconsistencies in his sworn statement and the documents he presented
in support of his motion, thus:
After going over the motion, we find no valid reason to disturb the order of 12 (sic) December
1997. Likewise, the same had long become final and executory.
Furthermore, the grounds alleged in the motion have no merit and are irrelevant. The alleged
marriage of respondent to a Filipina, a certain Lily Morales, with whom respondent allegedly
begot two (2) children named Cristina and Judaline both surnamed Jackson, and the supposed
conversion of respondents status to permanent resident on 30 September 1987 under Section
13(a) of the Immigration Act (CA No. 613, as amended), does not change the fact that the two
(2) US passports purportedly issued to Raymond Michael Jackson and Steven Bernard Bator
which were used by respondent, were tampered and subsequently cancelled by the U.S.
Embassy. Respondent already lost the privilege to remain in the country (Schonemann v. Comm.
Santiago, G.R. No. 86461, 30 May 1989).
It is also significant to note the evident inconsistencies in the sworn statement of respondent
conducted by Special Prosecutor Henry B. Tubban on 5 December 1997 with the documents
attached in the motion. Hereunder are the said inconsistencies:
1.
Annex A of the Motion is an alleged Marriage Contract between the respondent and one
Lily H. Morales showing Manila City Hall as the place of marriage and which was held on 6
September 1984.
In the Sworn Statement, the respondent claimed to have entered the country for the first time
only in 1988 (p. 1 of sworn statement), that he married a certain Lily Morales sometime in 1989
in Angeles City (p. 2 of sworn statement).
2.
The motion stated that out of the union of the respondent with Ms. Morales, two (2)
children named Cristina and Judaline both surnamed Jackson, were born. In the sworn statement
of the respondent, he stated that they have five (5) children.
In addition, in the marriage contract (Annex A of motion), it was stated that Ms. Morales is 17
years of age, a minor. However, below the personal circumstances of the respondent and Mrs.
Morales is a statement in bold letters that BOTH PARTIES ARE OF LEGAL AGES.
The foregoing creates a serious doubt on the allegations in the motion and on the authenticity of
the documents attached thereto. With more reason that the motion should be denied.
Moreover, the petitioner, in his motion for reconsideration with the CID, offered to post a bail
bond for his provisional release to enable him to secure the necessary documents to establish
the appropriate grounds for his permanent stay in the Philippines. By offering to post a bail
bond, the petitioner thereby admitted that he was under the custody of the CID and voluntarily

accepted the jurisdiction of the CID.

The present as clearly as the petitioners petition to lift the order of deportation was as yet
unresolved by the BOC when he filed the petition for habeas corpus.
IN LIGHT OF ALL THE FOREGOING, the petition is DISMISSED. The Decision of the RTC in
Special Proceedings No. 10948 is AFFIRMED. Costs against the petitioner.
SO ORDERED.

G.R. No. L-45950

June 20, 1938
LEONA PASION VIUDA DE GARCIA,
petitioner,
vs.
DIEGO LOCSIN, Judge of First Instance
of Tarlac, FELIX IMPERIAL, Provincial
Fiscal of Tarlac, and the ANTI-USURY
BOARD, respondents.
Benigo S. Aquino and Marcial P. Lichauco for
petitionerAdolfo
N.
Feliciano
for
the
respondent Anti-Usury Board.Office of the
Solicitor-General
Tuason
for
other
respondents.
LAUREL, J.:
This is a petition for mandamus presented to
secure the annulment of a search warrant
and two orders of the respondent judge, and
the restoration of certain documents alleged
to have been illegally seized by an agent of
the Anti-Usuary Board.
It appears that on November 10, 1934,
Mariano G. Almeda, an agent of the AntiUsuary Board, obtained from the justice of
the peace of Tarlac, Tarlac, a search warrant
(Exhibit B) commanding any officer of the
law to search the person, house or store of
the petitioner at Victoria, Tarlac, for "certain
books, lists, chits, receipts, documents and
other papers relating to her activities as
usurer." The search warrant was issued upon
an affidavit given by the said Almeda "that
he has and there (is) just and probable cause
to believe and he does believe that Leona
Pasion de Garcia keeps and conceals in her
house and store at Victoria, Tarlac, certain
books, lists, chits, receipts, documents, and
other papers relating to her activities as
usurer, all of which is contrary to the statute
in such cases made and provided." On the
same date, the said Mariano G. Almeda,
accompanied by a captain of the Philippine
Constabulary, went to the office of the
petitioner in Victoria, Tarlac and, after
showing the search warrant to the
petitioner's bookkeeper, Alfredo Salas, and,
without the presence of the petitioner who
was ill and confined at the time, proceeded
with the execution thereof. Two packages of
records and a locked filing cabinet containing
several Papers and documents were seized
by Almeda and a receipt therefor issued by
him to Salas. The papers and documents
seized were kept for a considerable length of
time by the Anti-Usury Board and thereafter
were turned over by it to the respondent
fiscal who subsequently filed, in the Court of

First Instance of Tarlac, six separate criminal

cases against the herein petitioner for
violation of the Anti-Usury Law. On several
occasions, after seizure, the petitioner,
through counsel, demanded from the
respondent Anti-Usury Board the return of
the documents seized. On January 7. and, by
motion, on June 4, 1937, the legality of the
search warrant was challenged by counsel
for the petitioner in the six criminal cases
and the devolution of the documents
demanded. By resolution of October 5, 1937,
the respondent Judge of First Instance denied
the petitioner's motion of June 4 for the
reason that though the search warrant was
illegal, there was a waiver on the part of the
petitioner. "En el caso presente," declared
the respondent judge, "teniendo en cuenta
que la acusada Por si o por medio de su
representante, no presento protests alguna
contra el registro de autos, at verificarse el
mismo, o despues de un tiempo rezonable,
el juzgado declare que la citada con su
silencio
y
conducta,
ha
renunciado
implicitanmente a su derecho a no ser
sometido a un registro irrazonable, por lo
que no le es pemitido quejarse despues,
puesto que
cualquier defecto
queha
adolecido lo expedicion de la orden de
registro y su ejecucion, ha quidado
implilcitamente subsanado." A motion for
reconsideration was presented but was
denied by order of January 3, 1938. Petitioner
registered her exception. The resolution of
October 5, 1937 and the order of January 3,
1938 are sought, together with the search
warrant, Exhibit B, to be nullified in these
proceedings.
Paragraph 3, section 1 of the bill of right of
our Constitution provides as follows:
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 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.
Freedom from unreasonable searches and
seizures is declared a popular right and for a
search warrant to be valid, (1) it must be
issued upon probable cause; (2) the probable
cause must be determined by the judge
himself and not by the applicant or any other

person; (3) in the determination of probable

cause, the judge must examine, under oath
or affirmation, the complainant and such
witnesses as the latter may produce; and (4)
the warrant issued must particularly describe
the place to be searched and persons or
things to be seized. These requirements are
complemented by the Code of Criminal
Procedure (G. O. No. 58), particularly with
reference to the duration of the validity of
the search warrant and the obligation of the
officer seizing the property to deliver the
same to the corresponding court (secs. 102104). On more than one occasion, since the
approval of the Constitution, we had
emphasized the necessity of adherence to
the constitutional requirements on this
subject (Alvarez vs. Court of First Instance of
Tayabas and Anti-Usury Board [1937], 35 Off.
Gaz., 1183; People vs. Sy Juco [1937], G.R.
No. 41957; Rodriguez vs. Villamiel [1937],
G.R. No. 44328; and Molo vs. Yatco [1936],
35 Off. Gaz., 1935) and we do not deem it
necessary to reiterate what has been said or
observed in these cases.
In the instant case the existence of probable
cause was determined not by the judge
himself but by the applicant. All that the
judge did was to accept as true the affidavit
made by agent Almeda. He did not decide for
himself. It does not appear that he examined
the applicant and his witnesses, if any. Even
accepting the description of the properties to
be seized to be sufficient and on the
assumption that the receipt issued is
sufficiently detailed within the meaning of
the law, the properties seized were not
delivered to the court which issued the
warrant, as required by law. (See, secs. 95
and 104, G. O. No. 58.) instead, they were
turned over to the respondent provincial
fiscal and used by him in building up cases
against the petitioner. Considering that at
the time the warrant was issued there was
no case pending against the petitioner, the
averment that the warrant was issued
primarily for exploration purposes is not
without basis. The lower court is, therefore,
correct in reaching the conclusion that the
search warrant (Exhibit B) was illegally
issued by the justice of the peace of Tarlac,
Tarlac.
The important question presented is whether
upon the facts and under the circumstances
of the present case, there has been a waiver
by the petitioner of her constitutional

immunity against unreasonable searches and

seizures. While the Solicitor-General admits
that, in the light of decisions of this court,
the search warrant was illegally issued, he
maintains "(1) that the petitioner had waived
her constitutional right by her acquiescence
after the search and seizure, and (2) that the
application for the return of the documents
illegally seized
was
made
after an
unreasonable length of time after the date of
seizure."
Doubtless,
the
constitutional
immunity against unreasonable searches and
seizures is a personal right which may be
waived. (People vs. Kagui Malasugui, 34 Off.
Gaz., pp. 2163, 2164; 56 C.J., pp. 1178,
1179; Cf. Rodriguez vs. Villamiel, supra.) The
waiver may be either express or implied (67
C.J., p. 304). No express waiver has been
made in the case before us. It is urged,
however, that there has been a waiver by
implication. It is well-settled that to
constitute a waiver of a constitutional right, it
must appear, first, that the right exists;
secondly, that the persons involved had
knowledge, either actual or constructive, of
the existence of such right; and, lastly, that
said person had an actual intention to
relinquish the right. (67 C. J., 299.) It is true
that the petitioner did not object to the
legality of the search when it was made. She
could not have objected because she was
sick and was not present when the warrant
was served upon Alfredo Salas. Certainly, the
constitutional immunity from unreasonable
searches and seizures, being a personal one,
cannot be waived by anyone except the
person whose rights are invaded or one who
is expressly authorized to do so in his or her
behalf. (56 C. J., p. 1183.) Of course, the
petitioner came to know later of the seizure
of some of her papers and documents. But
this was precisely the reason why she sent
her attorneys to the office of the Anti-Usuary
Board to demand the return of the
documents seized. In any event, the failure
on the part of the petitioner and her
bookkeeper to resist or object to the
execution of the warrant does not constitute
an implied waiver of constitutional right. It is,
as Judge Cooley observes, but a submission
to the authority of the law. (Const. Lim., 8th
ed., Vol., I, p. 630.) As the constitutional
guaranty is not dependent upon any
affirmative act of the citizen, the courts do
not place the citizen in the position of either
contesting an officer's authority by force, or

waiving his constitutional rights; but instead

they hold that a peaceful submission to a
search or seizure is not a consent or an
invitation
thereto,
but
is
merely
a
demonstration of regard for the supremacy
of the law. (56 C.J., pp. 1180, 1181.)
As a general proposition, it may be admitted
that waiver may be the result of a failure to
object within a reasonable time to a search
and seizure illegally made. It must be
observed, however, that the petitioner, on
several occasions, and prior to the filing of
criminal actions against her, had demanded
verbally, through counsel, the return by the
Anti-Usuary Board of the properties seized.
This is admitted by Adolfo N. Feliciano, acting
chief of the board, who said that the demand
was refused simply because no habiamos
terminado con nuestra investigacion. (T.s.n.,
pp. 24-25.) On July 7, 1936, counsel for the
petitioner wrote a letter to the Anti-Usuary
Board demanding again the return of the
documents withheld. And in connection with
the criminal cases pending against the
petitioner, similar demands were made on
January 7, 1937 and on June 4, 1937. In the
light of these circumstances, we find that the
petitioner did not waive her constitutional
right. The delay in making demand for the
return of the documents seized is not such as
to result in waiver by implication.
In view of the foregoing, the writ prayed for
is granted. The search warrant, Exhibit B, is
hereby declared void and of no effect; the
orders of October 5, 1937 and January 3,
1938 of the respondent judge are set aside;
and the respondents Anti-Usuary Board and
the provincial fiscal of Tarlac or those acting
in their behalf, are hereby ordered to return
and restore to the petitioner all the
properties, documents, papers and effects
illegally seized from her, within forty-eight
(48) hours from the time this decision
becomes final. Without costs. So ordered.

G.R. Nos. 78347-49 November 9, 1987

ADOLFO OLAES and LINDA M. CRUZ,
petitioners,
vs.
PEOPLE OF THE PHILIPPINES and HON.
JUDGE ALICIA L. SANTOS (In her
capacity as Presiding Judge of the
Regional Trial Court of Olongapo City,
Branch 73), respondents.
CRUZ, J:
In this petition for certiorari and prohibition
with preliminary injunction, the petitioners
challenge the admission by the respondent
judge of evidence seized by virtue of an
allegedly invalid March warrant and of an
extrajudicial confession taken from them
without according them the right to
assistance of counsel. 1 They seek to
restrain further proceedings in the criminal
case against them for violation of the
Dangerous Drugs Act (which we have
suspended) 2 and ask that they be acquitted
with the setting aside of the questioned
orders.
The Solicitor General, in his Comment,
suggests that the petition should be
dismissed as it is not alleged therein that the
respondent judge has committed grave
abuse of discretion or acted without or in
excess of jurisdiction. He adds that if any
reversible error has been committed, it may
be corrected not in this petition but in an
ordinary appeal, which may not even be
necessary if the petitioners are exonerated. 3
The petitioners, in their Reply, do not meet
these arguments head-on, thus impliedly
admitting the formal defect in their petition,
but subject that technicalities should yield to
substantial questions in the interest of justice
and to avoid unnecessarily or protracted
litigation. Their contention is that since there
are important constitutional issues involved,
these questions should disposition of their
case 4 be decided in this petition instead of
having them debated and resolved first in
the lower court in accordance with the usual
procedure, to the prejudice of the speedy
We are not usually persuaded by this kind of
argument, since procedural rules are
intended precisely to insure an orderly
administration of justice. Rights are best
established in accordance with the procedure
laid down by the adjective law, which is as
binding on the parties as the substantive law
since they are supposed to complement each

other. The Solicitor General is obviously

correct in faulting the petition and in
contending that, besides being defective, it is
not the proper remedy at this time. There is
no disputing this stand.
Worthy of note in this connection is The
separate opinion of the present Chief Justice
in Joseph v. Vilialuz, 5 where he declared that:
. . . the Court adheres to the settled rule that
it will not overrule in a special civil action the
trial court's interlocutory order denying a
motion to dismiss for failure or insufficiency
of the prosecution's evidence since it cannot
review in such special civil action the
prosecution's evidence and decide here and
now in advance that it has or has not
established beyond reasonable doubt the
guilt of the petitioners-accused. The orderly
procedure prescribed by the Rules of Court is
for the accused to present their evidence
after which the trial court will on the basis of
the evidence presented before it by both the
prosecution and the defense render its
judgment of conviction or acquittal. If the
verdict be one of acquittal, the case ends
there. If it be a verdict of conviction, then
appeal is the proper remedy - and such
appeal in order to have a review of the trial
court's findings of fact hes within the
exclusive appellate jurisdiction of the Court
of Appeals.
We reiterate the rule here.
Even so, the Court has decided, without
detracting from the validity of the abovecited observations., to deviate from the
established procedure on this matter and to
categorically resolve the issues presented iii
the case before us. The challenged orders
are, indeed, interlocutory. Nevertheless, a
restatement of the principles governing such
issues wilt it is expected, simplify the
proceedings in the court. below and speed
up the disposition of the criminal case
against the petitioners.
The petitioners claim that the search warrant
issued
by
the
respondent
judge
is
unconstitutional because it does not indicate
the specific offense they are supposed to
have committed. There is, therefore,
according to them, no valid finding of
probable cause as a justification for the
issuance of the said warrant in conformity
with the Bill of Rights. In support of this
argument, they cite Stonehill v. Diokno, 6
where Chief Justice Concepcion struck down
the search warrants issued therein for being

based on the general allegation that the

petitioners had committed violations of
"Central Bank Laws, Tariff and Customs Laws,
Internal Revenue Code and Revised Penal
Code." He declared:
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 law.
We have examined the search warrant issued
in the instant case and find it does not come
under the structures of the Stonehill
doctrine. In the case cited, there was a bare
reference to the laws in general, without any
specification of the particular sections
thereof that were alleged to have been
violated out of the hundreds of prohibitions
contained in such modifications. There is no
similar ambiguity in the instant case.
While it is true that the caption of the search
warrant states that it is in connection with
"Violation of RA 6425, otherwise known as
the Dangerous Drugs Acts of 1972," it is
clearly recited in the text thereof that "There
is probable cause to believe that Adolfo
Olaes alias "Debie" and alias "Baby" of No.
628 Comia St., Filtration, Sta. Rita, Olongapo
City, has in their possession and control and
custody
of
marijuana
dried
stalks/leaves/seeds/cigarettes
and
other
regulated/prohibited and exempt narcotics
preparations which is the subject of the
offense stated above." 7 Although the specific
section of the Dangerous Drugs Act is not
pinpointed, there is no question at all of the
specific offense alleged to have been
committed as a basis for the finding of
probable cause. The search warrant also
satisfies the requirement in the Bill of Rights
of the particularity of the description to be
made of the "place to be searched and the
persons or things to be seized."
The petitioners also fault the admission of
the extrajudicial confessions which they had
given without the assistance or advice of
counsel and cite Section 20 of the Bill of
Rights of the 1973 Constitution providing
that "any confession obtained in violation of

this section shall be inadmissible in

evidence."
In the separate sworn statements taken from
Adolfo Olaes and Linda Cruz on September
24, 1982, 8 it appears that both petitioners
were, before being examined, specifically
informed of their right to the assistance of
counsel, which would be provided them by
the investigating office at their request.
Asked if they understood, they said "Opo"
and affixed their signatures opposite their
answer. This was followed by a statement
entitled "Pagpapatunay" or Verification in
which they said inter alia that they did not
need the assistance of counsel ("Hindi ko na
kailangan
and
tulong
ng
isang
manananggol.") which they also signed. It
was only after these preliminary precautions
had been taken that the interrogation began
and was recorded in the sworn statement
later introduced against them at their trial.
There is no claim that any force, violence,
intimidation or threat or any means vitiating
the free wig was employed against them.
Their only objection to the extrajudicial
confessions is that they were obtained
without the assistance of counsel. They do
not aver in their petition that they were not
apprised of their right to counsel or that they
were denied the assistance of counsel when
they asked for it, or, indeed, that they had
asked for it.
Even so, their investigation did not conform
to the requirements laid down in People v.
Galit, 9 where we declared:
At the time a person is arrested, it shall be
the duty of the arresting officer to inform him
of the reason for the arrest and he must be
shown the warrant of arrest, if any, He shall
be informed of his constitutional rights to
remain silent and to counsel, and that any
statement he might make could be used
against him. The person arrested shall have
the right to communicate with his lawyer, a
relative, or anyone he chooses by the most
expedient means by telephone if possible
or by letter or messenger. It shall be the
responsibility of the arresting officer to see to
it that this is accomplislied. No custodial
investigation shall be conducted unless it be
in the presence of coursel engaged by the
person arrested, by any person on his behalf,
or appointed by the court upon petition
either of the detainee himself or by anyone
on his behalf. The right to counsel may be
waived but the waiver shall not be valid

unless made with the assistance of counsel.

Any statement obtained in violation of the
procedure herein laid down, whether
exculpatory or inculpatory, in whole or in
part, shall be inadmissible in evidence.
These requirements were made even stricter
under Article III, Section 12 of the 1987
Constitution, providing as follows:
Sec. 12. (1) Any person under investigation
for the commission offense shall have the
right to be informed of his right to remain
silent
and
to
have
competent
and
independent counsel preferally of his own
choice. If the person cannot afford the
services of counsel, he must be provided
with one. These rights cannot be waived
except in writing and in the presence of

counsel.
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
Applying the above rules, we reach the
conclusion that the extrajudicial confessions
should be declared inadmissible as evidence
against the herein petitioners.
WHEREFORE, the petition is partly granted.
The extrajudicial confessions are excluded
but the articles seized under the challenged
search warrant may be admitted in evidence.
Our temporary restraining order of May 25,
1987, is lifted. No costs.
SO ORDERED.

[G.R. No. 153087. August 7, 2003]

BERNARD R. NALA, petitioner, vs. JUDGE JESUS M. BARROSO, JR., Presiding Judge,
Regional Trial Court, Branch 10, 10th Judicial Region, Malaybalay City, respondent.
DECISION
YNARES-SANTIAGO, J.:
In determining the existence of probable cause for the issuance of a search warrant, the
examining magistrate must make probing and exhaustive, not merely routine or pro forma
examination of the applicant and the witnesses. Probable cause must be shown by the best
evidence that could be obtained under the circumstances. The introduction of such evidence is
necessary especially where the issue is the existence of a negative ingredient of the offense
charged, e.g., the absence of a license required by law.
This is a petition for certiorari under Rule 65 of the Rules of Court, seeking to annul the October
18, 2001and February 15, 2002 Orders of the Regional Trial Court of Malaybalay City, Branch 10,
which denied petitioners Omnibus Motion to Quash Search and Seizure Warrant No. 30-01.
On June 25, 2001, PO3 Macrino L. Alcoser applied for the issuance of a warrant to search the
person and residence of petitioner Bernard R. Nala, who was referred to in the application as
Rumolo Nala alias Long of Purok 4, Poblacion, Kitaotao, Bukidnon. The application was filed in
connection with petitioners alleged illegal possession of one caliber .22 magnum and one 9 mm.
pistol in violation of Republic Act No. 8294, which amended Presidential Decree No. 1866, or the
law on Illegal Possession of Firearms. On the same day, after examining Alcoser and his witness
Ruel Nalagon, respondent Presiding Judge of RTC of Malaybalay City, Branch 10, issued Search
and Seizure Warrant No. 30-01, against Romulo Nala alias Lolong Nala who is said to be residing
at Purok 4, Poblacion, Kitaotao, Bukidnon.
At around 6:30 in the morning of July 4, 2001, Alcoser and other police officers searched
petitioners house and allegedly seized the following articles, to wit
-1- one piece caliber .38 revolver (snub-nose) with Serial Number 1125609
-1- one pc. fragmentation grenade (cacao type)
-1- one pc. .22 long barrel
-5- pcs live ammunition for caliber .38 revolver
-4- four pcs. of disposable lighter and unestimated numbers of cellophane used for packing of
shabu
On July 5, 2001, Criminal Cases Nos. 10943-2001-P and 10944-2001-P for illegal possession of
firearms, ammunitions and explosives were filed against the petitioner before the 5 th Municipal
Circuit Trial Court of Kitaotao, Bukidnon. [
On August 8, 2001, petitioner filed an Omnibus Motion seeking to (1) quash Search and Seizure
Warrant No. 30-01; (2) declare inadmissible for any purpose the items allegedly seized under the
said warrant; and (3) direct the release of the air rifle seized by the police officers.
Respondent judge denied the Omnibus Motion to Quash but ordered the return of the air rifle to
petitioner. As to the validity of the search warrant, respondent found that probable cause was
duly established from the deposition and examination of witness Ruel Nalagon and the testimony
of PO3 Macrino L. Alcoser who personally conducted a surveillance to confirm the information
given by Nalagon. The fact that the items seized were not exactly the items listed in the warrant
does not invalidate the same because the items seized bear a direct relation to the crime of
illegal possession of firearms. Respondent judge also found that petitioner was sufficiently
identified in the warrant although his first name was erroneously stated therein as Romulo and
not Bernard, considering that the warrant was couched in terms that would make it enforceable
against the person and residence of petitioner and no other. The dispositive portion of the
questioned Order reads:
WHEREFORE, finding the Omnibus Motion to be without merit, the same is hereby DENIED.
However, as to the questioned Air Rifle, the same is allowed to be withdrawn and ordered
returned to herein movant.
SO ORDERED.
Petitioner filed a motion for reconsideration but the same was denied on February 15, 2002.
Hence, he filed the instant petition alleging that respondent judge committed grave abuse of
discretion in issuing the questioned orders.
The issues for resolution are as follows: (1) Was petitioner sufficiently described in the search and

seizure warrant? (2) Was there probable cause for the issuance of a search and seizure warrant
against petitioner? and (3) Whether or not the firearms and explosive allegedly found in
petitioners residence are admissible in evidence against him even though said firearms were not
listed in the search and seizure warrant.
At the outset, it must be noted that the instant petition for certiorari was filed directly with this
Court in disregard of the rule on hierarchy of courts. In the interest of substantial justice and
speedy disposition of cases, however, we opt to take cognizance of this petition in order to
address the urgency and seriousness of the constitutional issues raised. In rendering decisions,
courts have always been conscientiously guided by the norm that on the balance, technicalities
take a backseat against substantive rights, and not the other way around. Thus, if the
application of the Rules would tend to frustrate rather than promote justice, it is always
within our power to suspend the rules, or except a particular case from its operation.
Article III, Section 2 of the Constitution guarantees every individual the right to personal liberty
and security of homes against unreasonable searches and seizures, viz:
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 purpose of the constitutional provision against unlawful searches and seizures is to prevent
violations of private security in person and property, and unlawful invasion of the sanctity of the
home, by officers of the law acting under legislative or judicial sanction, and to give remedy
against such usurpations when attempted.
Corollarily, Rule 126, Sections 4 and 5 of the 2000 Rules on Criminal Procedure provide for the
requisites for the issuance of a search warrant, to wit:
SEC. 4. Requisites for issuing search warrant. A search warrant shall not issue except 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 witness he may produce,
and particularly describing the place to be searched and the things to be seized which may be
anywhere in the Philippines.
SEC. 5. 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 the witnesses he may produce on facts personally known to them and
attach to the record their sworn statements, together with the 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 person and place to be searched and the things to be
seized.
On the first issue, the failure to correctly state in the search and seizure warrant the first name of
petitioner, which is Bernard and not Romulo or Rumolo, does not invalidate the warrant
because the additional description alias Lolong Nala who is said to be residing at Purok 4,
Poblacion, Kitaotao, Bukidnon sufficiently enabled the police officers to locate and identify the
petitioner. What is prohibited is a warrant against an unnamed party, and not one which, as in
the instant case, contains a descriptio personae that will enable the officer to identify the
accused without difficulty.
The probable cause for a valid search warrant has been 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 objects sought in connection with the offense are in the
place sought to be searched. This probable cause must be shown to be within the personal
knowledge of the complainant or the witnesses he may produce and not based on mere
hearsay.In determining its existence, the examining magistrate must make a probing and
exhaustive, not merely routine or pro forma examination of the applicant and the witnesses.
Probable cause must be shown by the best evidence that could be obtained under the

circumstances. On the part of the applicant and witnesses, the introduction of such evidence is
necessary especially where the issue is the existence of a negative ingredient of the offense
charged, e.g., the absence of a license required by law. On the other hand, the judge must not
simply rehash the contents of the affidavits but must make his own extensive inquiry on the
existence of such license, as well as on whether the applicant and the witnesses have personal
knowledge thereof.
In Paper Industries Corporation of the Philippines (PICOP) v. Asuncion, we declared as void the
search warrant issued by the trial court in connection with the offense of illegal possession of
firearms, ammunitions and explosives, on the ground, inter alia, of failure to prove the requisite
probable cause. The applicant and the witness presented for the issuance of the warrant were
found to be without personal knowledge of the lack of license to possess firearms of the
management of PICOP and its security agency. They likewise did not testify as to the absence of
license and failed to attach to the application a no license certification from the Firearms and
Explosives Office of the Philippine National Police. Thus 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
xxx
xxx
x
xx
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.
xxx
xxx
x
xx
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 guards were not licensed. He
also said that some of the firearms were owned by PICOP. Yet, he made no statement before the
trial court that 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 of
the 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.[if
In the case at bar, the search and seizure warrant was issued in connection with the offense of
illegal possession of firearms, the elements of which are (1) the existence of the subject
firearm; and (2) the fact that the accused who owned or possessed it does not have the license
or permit to possess the same. Probable cause as applied to illegal possession of firearms would
therefore be such facts and circumstances which would lead a reasonably discreet and prudent
man to believe that a person is in possession of a firearm and that he does not have the license
or permit to possess the same. Nowhere, however, in the affidavit and testimony of witness Ruel
Nalagon nor in PO3 Macrino L. Alcosers application for the issuance of a search warrant was it
mentioned that petitioner had no license to possess a firearm. While Alcoser testified before the
respondent judge that the firearms in the possession of petitioner are not licensed, this does not
qualify as personal knowledge but only personal belief because neither he nor Nalagon
verified, much more secured, a certification from the appropriate government agency that
petitioner was not licensed to possess a firearm. This could have been the best evidence
obtainable to prove that petitioner had no license to possess firearms and ammunitions, but the
police officers failed to present the same.
Regrettably, even the examination conducted by the respondent judge on Nalagon and Alcoser
fell short of the required probing and exhaustive inquiry for the determination of the existence of
probable cause. Thus
COURT: [To witness Ruel Nalagon]
Q I am showing you this document/sworn statement of Ruel Nala[gon] given to PO3 Rodrigo
Delfin, Investigator, SCOT/PDEU Bukidnon Police Provincial Office, Camp Ramon Onahon,
Malaybalay City on or about 12:30 in the afternoon of June 25, 2001, in the presence of PO3
Macrino Alcoser, Operative of Special Case Operation Team. Are you the same Ruel Nalagon who

has given a statement before the above-named police officer?

A
Yes, Sir.
Q You have given a statement before the abovenamed police officer or Investigator that you
have personal knowledge that a certain Romulo Nala in Purok 4, Poblacion, Kitaotao, Bukidnon
has in his possession a .22 magnum pistol and 9MM pistol[?] Why and how do you know that he
has in his possession such pistols?
A
Because I personally saw and witnessed him bringing or carrying said pistols.
Q Where did you see him bringing or carrying said pistols?
A
I saw him personally in the public market of Kitaotao, Bukidnon. I also witnessed him firing
said pistol especially when he is drunk.
Q How often did you see him carrying and firing said pistols?
A
Many times.
Q Do you know Romulo Nala? Are you friends with said person?
A
Yes, sir because we are neighbors in Purok 4, Poblacion, Kitaotao, Bukidnon.
Q This Romulo Nala, is he bringing these two (2) pistols at the same time?
A
No sir, he is bringing often times the .22 magnum and I saw him only twice bringing 9MM
pistol.
Q Do you have something more to add or say in this investigation?
A
None as of this moment.
That is all.[
COURT:
Next witness [PO3 Macrino L. Alcoser]
xxx
xxx
x
xx
Q Regarding this application filed by your office, what is your basis in arriving into a conclusion
that this certain Romulo Nala of Purok 4, Poblacion, Kitaotao, Bukidnon has in his possession
illegal firearms?
A
Based on the report of our reliable asset, a civilian agent who was able to personally
witness this Mr. Romulo Nala who has in his possession one (1) .22 magnum and one (1) 9MM
pistols which are unlicensed.
Q What action [was] commenced by your office if any as to the report made by your asset
regarding the alleged possession of Mr. Romulo Nala of unlicensed firearms?
A
Our officer through authorized personnel, conducted surveillance operation on the spot,
headed by this affiant.
Q What was the result of the surveillance conducted by your office?
A
The result turned out to be positive and we have [concrete] evidence that indeed this
Romulo Nala is engaged with the above illegal act.
Q Are there more information you wish to inform this Court.
A
None, as of the moment.
Q
Do you affirm the truthfulness of the above statement made by you and [will you]
voluntarily sign the same?
A
Yes, sir.
That is all.
It did not even occur to the examining judge to clarify how did the police officers conduct an on
the spot surveillance on June 25, 2001 on a 2-hour interval between 12:30 p.m., when Nalagon
executed the affidavit, and 2:30 p.m., when PO3 Macrino L. Alcoser testified before the
respondent judge that they conducted surveillance operation on the spot right after Nalagon
executed his affidavit. Even if we apply the presumption of regularity in the performance of duty,
the on the spot surveillance claimed by Alcoser contradicts his statement in the application for
the issuance of warrant that he conducted long range surveillance of petitioner. At any rate,
regardless of the nature of the surveillance and verification of the information carried out by the
police officers, the fact remains that both the applicant, PO3 Macrino L. Alcoser, and his witness
Ruel Nalagon did not have personal knowledge of petitioners lack of license to possess firearms,
ammunitions and explosive; and did not adduce the evidence required to prove the existence of
probable cause that petitioner had no license to possess a firearm. Hence, the search and
seizure warrant issued on the basis of the evidence presented is void.

Can petitioner be charged with illegal possession of firearms and explosive allegedly seized from
his house? Petitioner contends that said articles are inadmissible as evidence against him
because they were not the same items specifically listed in the warrant. The Office of the
Provincial Prosecutor, on the other hand, claims that petitioner should be held liable because the
items seized bear a direct relation to the offense of illegal possession of firearms. These
arguments, however, become immaterial in view of the nullity of the search warrant which made
possible the seizure of the questioned articles.
The settled rule is that where entry into the premises to be searched was gained by virtue of a
void search warrant, prohibited articles seized in the course of the search are inadmissible
against the accused. In Roan v. Gonzales, the prosecution sought to charge the accused with
illegal possession of firearms on the basis of the items seized in a search through a warrant
which the Court declared as void for lack of probable cause. In ruling against the admissibility of
the items seized, the Court said
Prohibited articles may be seized but only as long as the search is valid. In this case, it was not
because: 1) there was no valid search warrant; and 2) absent such a warrant, the right thereto
was not validly waived by the petitioner. In short, the military officers who entered the
petitioners premises had no right to be there and therefore had no right either to seize the pistol
and bullets.
Conformably, the articles allegedly seized in the house of petitioner cannot be used as evidence
against him because access therein was gained by the police officer using a void search and
seizure warrant. It is as if they entered petitioners house without a warrant, making their entry
therein illegal, and the items seized, inadmissible.
Moreover, it does not follow that because an offense is malum prohibitum, the subject thereof is
necessarily illegal per se. Motive is immaterial in mala prohibita, but the subjects of this kind of
offense may not be summarily seized simply because they are prohibited. A warrant is still
necessary, because possession of any firearm becomes unlawful only if the required permit or
license therefor is not first obtained.
So also, admissibility of the items seized cannot be justified under the plain view doctrine. It is
true that, as an exception, the police officer may seize without warrant illegally possessed
firearm, or any contraband for that matter, inadvertently found in plain view. However, said
officer must have a prior right to be in the position to have that view of the objects to be seized.
The plain view doctrine applies when the following requisites concur: (a) the law enforcement
officer in search of the evidence has a prior justification for an intrusion or is in a position from
which he can view a particular area; (b) the discovery of the evidence in plain view is
inadvertent; (c) it is immediately apparent to the officer that the item he observes may be
evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer
must lawfully make an initial intrusion or properly be in a position from which he can particularly
view the area. In the course of such lawful intrusion, he came inadvertently across a piece of
evidence incriminating the accused. The object must be open to eye and hand and its discovery
inadvertent.
No presumption of regularity may be invoked in aid of the process when the officer undertakes to
justify an encroachment of rights secured by the Constitution. In this case, the firearms and
explosive were found at the rear portion of petitioners house but the records do not show how
exactly were these items discovered. Clearly, therefore, the plain view doctrine finds no
application here not only because the police officers had no justification to search the house of
petitioner (their search warrant being void for lack of probable cause), but also because said
officers failed to discharge the burden of proving that subject articles were inadvertently found in
petitioners house.
The issue of the reasonableness of the implementation of the search and seizure warrant, i.e.,
whether the search was conducted in the presence of witnesses and whether the air rifle which
the trial court ordered to be returned to petitioner was indeed among the items seized during the
search, are matters that would be best determined in the pending administrative case for grave
misconduct and irregularity in the performance of duty against the police officers who conducted
the search.
Considering that the search and seizure warrant in this case was procured in violation of the
Constitution and the Rules of Court, all the items seized in petitioners house, being fruits of the

poisonous tree, are inadmissible for any purpose in any proceeding. The exclusion of these
unlawfully seized evidence is the only practical means of enforcing the constitutional injunction
against unreasonable searches and seizures. Hence, the complaints filed against petitioner for
illegal possession of firearms and explosive based on illegally obtained evidence have no more
leg to stand on. Pending resolution of said cases, however, the articles seized are to remain in
custodia legis.
Finally, the Court notes that among the items seized by the officers were four pcs. of disposable
lighter and unestimated numbers of cellophane used for packing of shabu. These items are not
contraband per se, nor objects in connection with the offense of illegal possession of firearms for
which the warrant was issued. Moreover, it is highly preposterous to assume that these items
were used in connection with offenses involving illegal drugs. Even granting that they were, they
would still be inadmissible against the petitioner for being products of an illegal search. Hence,
the subject articles should be returned to petitioner.
WHEREFORE, in view of all the foregoing, the petition is GRANTED. The October 18, 2001
and February 15, 2002 Orders of the Regional Trial Court of Malaybalay City, Branch 10, are
REVERSED and SET ASIDE insofar as it denied petitioners omnibus motion to quash the search
warrant. Search and Seizure Warrant No. 30-01 dated June 25, 2001 is declared VOID and the
articles seized by virtue thereof are declared inadmissible in evidence. Pending resolution of
Criminal Case Nos. 10943-2001-P and 10944-2001-P for illegal possession of firearms,
ammunitions and explosive against petitioner, the items (caliber .38 revolver with Serial Number
1125609 and 5 pieces live ammunitions; fragmentation grenade; and .22 long barrel) subject
thereof, must remain in custodia legis. The four pieces of disposable lighter and cellophane
seized should be returned to petitioner.
SO ORDERED.

[A.M. No. MTJ-02-1430. September 8,

2003]
SPECIAL PROSECUTOR ROMEO B.
SENSON, complainant, vs. JUDGE
HERIBERTO M. PANGILINAN, MTCC,
PUERTO PRINCESA CITY, respondent.
DECISION
VITUG, J.:
The administrative complaint against Judge
Heriberto M. Pangilinan relates to an order he
has issued, authorizing, prior to the
arraignment of the accused and the pre-trial
of a criminal case, the release of seized
evidence to movants who claim ownership
thereof.
On 14 March 2000, several persons were
apprehended for violation of Section 86 of
Republic Act No. 8550, also known as The
Philippine Fisheries Code of 1998[if !
supportFootnotes][1][endif]
by members of the
Philippine National Police. The items seized
from those arrested included (a) 1 unit fish
net, (b) 36 units lights (300 watts), (c) 1 unit
light (500 watts), (d) 1 unit buoy, (e) 7
containers, (f) 7 plastic container boxes, (g) 4
styropore boxes, and (h) 10 boxes of fish. On
the same day, Criminal Case No.15019
against them was filed. Three days later,
Danilo Alayon and Norma Villarosa, asserting
to be the co-owners of the M/B King Fisher
that was used in the illegal fishing activity,
filed an Urgent Motion for Custody of Fishing
Net, alleging that the fish net which costs
no less than P600,000.00 was left
unattended at the beach exposed to the
elements and movements of the sea which
could cause its early deterioration and
ultimate loss. Respondent Judge, despite the
vigorous objection of the public prosecutor,
granted the motion in his order of 22 March
2000, in part, to the following effect To obviate their possible loss, destruction
and/or deterioration, pending resolution of
the above-captioned case, the apprehending
officers or whoever has the custody, are
ordered to cause the immediate turn over of
the following items to movants who
undertake to produce the same whenever
needed in court, as they can only be properly
confiscated in favor of the government upon
conviction of the accused.
1.
1 unit fish net
2.
36 units lights (300 watts)
3.
1 unit light (500 watts)
4.
1 unit buoy
5.
7 containers

6.
7 plastic container boxes
7.
4 styropore boxes
8.
10 boxes of fish
The public prosecutor filed, on 24 March
2000, a motion for reconsideration. Instead
of deciding the pending motion, respondent
Judge deferred its resolution until after the
arraignment of the accused and the pretrial
of the case would have been had.[if !
supportFootnotes][2][endif]

Special Prosecutor Romeo B. Senson filed an

administrative complaint against respondent
Judge for Gross Misconduct with Prayer for
Preventive Suspension asseverating that the
release of the evidence had exposed said
evidence to tampering and that the
deferment of the resolution of the motion for
reconsideration virtually resulted in the
undue archive of the case.
In his comment, respondent contended that
Republic Act No. 8550, the law under which
the accused were charged with having
transgressed, did not provide for the seizure
of the fishing paraphernalia pending trial and
that the prosecution still could prove the guilt
of the accused beyond reasonable doubt
even without the evidence being presented
since it had sufficient witnesses for the
purpose.
The attempt at justification must fail.
As the Office of the Court Administrator has
so correctly pointed out, while it can be
argued that the remedy is judicial in nature
or that the case involves an error in
judgment, Rule 127, Section 12, of the Rules
of Court (however), is much too elementary
to be brushed aside (and that) x x x the
existence of a judicial remedy does not
(necessarily) preclude resort to an
administrative remedy. Nowhere in the
statute would it appear that the seizure of
the items, alleged to have been used in the
illegal fishing activity, is proscribed by it.
Evidently, the seizure of the fishing
paraphernalia has been made as being an
incident to a lawful arrest. Rule 127, Section
12, of the Rules of Court[if !supportFootnotes][3][endif]
provides:
SEC. 12. Search incident to lawful arrest.- A
person lawfully arrested may be searched for
dangerous weapons or anything which may
be used as proof of the commission of an
offense, without a search warrant.
In Arsenio N. Roldan, Jr. vs. Francisco Arca,[if !
supportFootnotes][4][endif]
where the crew of certain
fishing vessels were caught, in flagrante,

illegally fishing with dynamite and without

the requisite license, their apprehension
without a warrant of arrest and the seizure of
the vessel, as well as its equipment and the
dynamites found therein, as an incident to a
lawful arrest was held to be lawful.
All criminal actions commenced by a
complaint or information are prosecuted
under the direction and control of the
prosecutor.[if !supportFootnotes][5][endif] The seized
items ordered released by respondent Judge
have not yet been offered in evidence;
hence, the prosecution, not the court, could
still be deemed to be in the legal custody
and to have the responsibility over such
items.[if !supportFootnotes][6][endif] The pronouncement
by the Court in Vlasons Enterprises
Corporation vs. Court of Appeals[if !supportFootnotes]
[7][endif]
is instructive; viz:
x x x The outcome of the criminal action will
dictate the disposition of the seized
property. If found to be contraband, i.e.,
articles the possession of which, without
more, constitutes a crime and the

repossession of which would subject

defendant to criminal penalties and frustrate
the express policy against the possession of
such objects, they will not be returned, but
shall be confiscated in favor of the State or
destroyed, as the case may be. If not
contraband, the property shall be returned
without undue delay to the person who
appears from the evidence to be the owner
or rightful possessor.
While, verily, respondent Judge has
committed a fundamental error, no proof,
however, is extant or has been proffered to
also establish that he has acted with malice
or in bad faith.
WHEREFORE,
the
Court
finds
respondent Judge Heriberto M. Pangilinan
GUILTY of gross ignorance of the law, and he
is hereby ordered to pay a fine of Ten
Thousand (P10,000.00) Pesos with a warning
that another infraction by him will be dealt
with severely.
SO ORDERED