Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

81567 July 9, 1990 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA O. UMIL, and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs. FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents. G.R. Nos. 84581-82 July 9, 1990 AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs. GEN. RENATO DE VILLA and GEN. RAMON MONTANO, respondents. G.R. Nos. 84583-84 July 9, 1990 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE. DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs. HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARINO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents. G.R. No. 83162 July 9, 1990 IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA. VIRGILIO A. OCAYA, petitioner, vs. BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO, respondents. G.R. No. 85727 July 9, 1990 IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF: DEOGRACIAS ESPIRITU, petitioner, vs. BRIG. GEN. ALFREDO S. LIM, COL. RICARDO REYES, respondents. G.R. No. 86332 July 9, 1990 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO. ALFREDO NAZARENO, petitioner, vs. THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MAURO AROJADO, respondents. Efren H. Mercado for petitioners in G.R. No. 81567. Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82. Ramon S. Esguerra, Barbara Anne C. Migallos and Agripino G. Morga for petitioners in G.R. Nos. 84583-84. Efren H. Mercado for petitioner in G.R. No. 83162. Banzuela, Flores, Miralles, Raneses, Sy, Taquio & Association for petitioner in G.R. No. 85727. Josefina G. Campbell-Castillo for petitioners in G.R. No. 86332. The Solicitor General for the respondents. PER CURIAM: The are eight (8) petitioners for habeas corpus filed before the Court, which have been consolidated because of the similarity of issues raised, praying for the issuance of the writ of habeas corpus, ordering the respective respondents to produce the bodies of the persons named therein and to explain why they should not be set at liberty without further delay. In their respective Returns, the respondents uniformly assert that the privilege of the writ of habeas corpus is not available to the petitioners as they have been legally arrested and are detained by virtue of valid informations filed in court against them. The petitioners counter that their detention is unlawful as their arrests were made without warrant and, that no preliminary investigation was first conducted, so that the informations filed against them are null and void. The Court has carefully reviewed the contentions of the parties in their respective pleadings, and it finds that the persons detained have not been illegally arrested nor arbitrarily deprived of their constitutional right to liberty, and that the circumstances attending these cases do not warrant their release on habeas corpus. The arrest of a person without a warrant of arrest or previous complaint is recognized in law. The occasions or instances when such an arrest may be effected are clearly spelled out in Section 5, Rule 113 of the Rules of Court, as amended, which provides: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. An arrest without a warrant of arrest, under Section 5 paragraphs (a) and (b) of Rule 113 of the Rules of Court, as amended, is justified when the person arrested is caught in flagranti delicto, viz., in the act of committing an offense; or when an offense has just been committed and the person making the arrest has personal knowledge of the facts indicating that the person arrested has committed it. The rationale behind lawful arrests, without warrant, was stated by this Court in the case of People vs. Kagui Malasugui 1 thus: To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances. The record of the instant cases would show that the persons in whose behalf these petitions for habeas corpus have been filed, had freshly committed or were actually committing an offense, when apprehended, so that their arrests without a warrant were clearly justified, and that they are, further, detained by virtue of valid informations filed against them in court. A brief narration of the facts and events surrounding each of the eight (8) petitions is in order. I In G.R. No. 81567 (Umil vs. Ramos), the record shows that, on 1 February 1988, the Regional Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) received confidential information about a member of the NPA Sparrow Unit (liquidation squad) being treated for a gunshot wound at the St. Agnes Hospital in Roosevelt Avenue, Quezon City. Upon verification, it was found that the wounded person, who was listed in the hospital records as Ronnie Javelon, is actually Rolando Dural, a member of the NPA liquidation squad, responsible for the killing of two (2) CAPCOM soldiers the day before, or on 31 January 1988, in Macanining Street, Bagong Barrio, Caloocan City. In view of this verification, Rolando Dural was transferred to the Regional Medical Services of the CAPCOM, for security reasons. While confined thereat, or on 4 February 1988, Rolando Dural was positively identified by eyewitnesses as the gunman who went on top of the hood of the CAPCOM mobile patrol car, and fired at the two (2) CAPCOM soldiers seated inside the car identified as T/Sgt. Carlos Pabon and CIC Renato Manligot. As a consequence of this positive identification, Rolando Dural was referred to the Caloocan City Fiscal who conducted an inquest and thereafter filed with the Regional Trial Court of Caloocan City an information charging Rolando Dural alias Ronnie Javelon with the crime of "Double Murder with Assault Upon Agents of Persons in Authority." The case was docketed therein as Criminal Case No. C-30112 and no bail was recommended. On 15 February 1988, the information was amended to include, as defendant, Bernardo Itucal, Jr. who, at the filing of the original information, was still unidentified. Meanwhile, on 6 February 1988, a petition for habeas corpus was filed with this Court on behalf of Roberto Umil, Rolando Dural, and Renato Villanueva. The Court issued the writ of habeas corpus on 9 February 1988 and the respondents filed a Return of the Writ on 12 February 1988. Thereafter, the parties were heard on 15 February 1988. On 26 February 1988, however, Roberto Umil and Renato Villanueva posted bail before the Regional Trial Court of Pasay City where charges for violation of the Anti-Subversion Act had been filed against them, and they were accordingly released. The petition for habeas corpus, insofar as Umil and Villanueva are concerned, is now moot and academic and is accordingly dismissed, since the writ of habeas corpus does not lie in favor of an accused in a criminal case who has been released on bail. 2 As to Rolando Dural, it clearly appears that he was not arrested while in the act of shooting the two (2) CAPCOM soldiers aforementioned. Nor was he arrested just after the commission of the said offense for his arrest came a day after the said shooting incident. Seemingly, his arrest without warrant is unjustified. However, Rolando Dural was arrested for being a member of the New Peoples Army (NPA), an outlawed subversive organization. Subversion being a continuing offense, the arrest of Rolando Dural without warrant is justified as it can be said that he was committing an offense when arrested. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes. As stated by the Court in an earlier case: From the facts as above-narrated, the claim of the petitioners that they were initially arrested illegally is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance, on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction. 2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which is of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contingencies continues cannot be less justified. . . . 3

The record, moreover, shows that the criminal case filed against Rolando Dural and Bernardo Itucal, Jr. for "Double Murder, etc." was tried in the court below and at the conclusion thereof, or on 17 August 1988, Rolando Dural and Bernardo Itucal, Jr. were found guilty of the charge and sentenced accordingly. Rolando Dural is now serving the sentence imposed upon him by the trial court. Thus, the writ of habeas corpus is no longer available to him. For, as held in the early case of U.S. vs. Wilson: 4 In this case, whatever may be said about the manner of his arrest, the fact remains that the defendant was actually in court in the custody of the law on March 29, when a complaint sufficient in form and substance was read to him. To this he pleaded not guilty. The trial followed, in which, and in the judgment of guilty pronounced by the court, we find no error. Whether, if there were irregularities in bringing him personally before the court, he could have been released on a writ of habeas corpus or now has a civil action for damages against the person who arrested him we need not inquire. It is enough to say that such irregularities are not sufficient to set aside a valid judgment rendered upon a sufficient complaint and after a trial free from error. II In G.R. Nos. 84581-82 (Roque vs. De Villa), the arrest of Amelia Roque and Wilfredo Buenaobra, without warrant, is also justified. When apprehended at the house of Renato Constantino in Marikina Heights, Marikina, Metro Manila, Wilfredo Buenaobra admitted that he was an NPA courier and he had with him letters to Renato Constantino and other members of the rebel group. Amelia Roque, upon the other hand, was a member of the National United Front Commission, in charge of finance, and admitted ownership of subversive documents found in the house of her sister in Caloocan City. She was also in possession of ammunition and a fragmentation grenade for which she had no permit or authority to possess. The record of these two (2) cases shows that on 27 June 1988, one Rogelio Ramos y Ibanes, a member of the NPA, who had surrendered to the military authorities, told military agents about the operations of the Communist Party of the Philippines (CPP) and the New Peoples Army (NPA) in Metro Manila. He identified some of his former comrades as "Ka Mong", a staff member of the Communications and Transportation Bureau; "Ka Nelia", a staff member in charge of finance; "Ka Miller", an NPA courier from Sorsogon and Lopez, Quezon; "Ka Ted", and "Ka Totoy". He also pointed to a certain house occupied by Renato Constantino located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila, which is used as a safehouse of the National United Front Commission (NUFC) of the CPP-NPA. In view of these revelations, the Constantino house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, a search of the house was conducted at about 5:00 o'clock in the afternoon, by a combined team of the Criminal Investigation Service, National Capital District (CIS-NCD) and the Constabulary Security Group (CSG). In the course of the search, the following articles were found and taken under proper receipt: a) One (1) Colt M16A1 long rifle with defaced serial number; b) One (1) Cal. .380 ACT/9mm Model PPK/8 SN: 260577 & 2605778; c) Two (2) fragmentation hand grenades; d) Fifty-six (56) live ammunition for Cal. 5.56 mm; e) Five (5) live ammunition for Cal. .380; f) One (1) ICOM VHF FM Radio Transciever SN: 14903 g) One (1) Regulated power supply 220V AC; h) One (1) Antennae (adjustable); i) One (1) Speaker with cord ALEXAR; j) Voluminous Subversive documents. When confronted, Renato Constatino could not produce any permit or authority to possess the firearms, ammunition, radio and other communications equipment. Hence, he was brought to the CIS Headquarters for investigation. When questioned, he refused to give a written statement, although he admitted that he was a staff member of the executive committee of the NUFC and a ranking member of the International Department of the Communist Party of the Philippines (CPP). At about 8:00 o'clock in the evening of the same day (12 August 1988), Wilfredo Buenaobra arrived at the house of Renato Constantino in the Villaluz Compound. When accosted, he readily admitted to the military agents that he is a regular member of the CPP/NPA and that he went to the place to deliver letters to "Ka Mong", referring to Renato Constatino, and other members of the rebel group. On further questioning, he also admitted that he is known as "Ka Miller" and that he was from Barangay San Pedro, Lopez, Quezon. Among the items taken from him were the following: (1) Handwritten letter addressed to "Ka Bing & Co. from A & Co." dated August 11, 1988; (2) Handwritten letter addressed to "ROD from VIC (Schell datre)" dated August 11, 1988; (3) Handwritten letter addressed to "Suzie" from "Vic", dated August 11, 1988. Also found Buenaobra's possession was a piece of paper containing a written but jumbled telephone number of Florida M. Roque, sister of Amelia Roque alias "Ka Nelia", at 69 Geronimo St., Caloocan City. Acting on the lead provided as to the whereabouts of Amelia Roque, the military agents went to the given address the next day (13 August 1988). They arrived at the place at about 11:00 o'clock in the morning. After identifying themselves as military agents and after seeking permission to search the place, which was granted, the military agents conducted a search in the presence of the occupants of the house and the barangay captain of the place, one Jesus D. Olba. The military agents found the place to be another safehouse of the NUFC/CPP. They found ledgers, journals, vouchers, bank deposit books, folders, computer diskettes, and subversive documents as well as live ammunition for a .38 SPL Winchester, 11 rounds of live ammunition for a cal. .45, 19 rounds of live ammunition for an M16 Rifle, and a fragmentation grenade. As a result, Amelia Roque and the other occupants of the house were brought to the PC-CIS Headquarters at Camp Crame, Quezon City, for investigation. Amelia Roque admitted to the investigators that the voluminous documents belonged to her and that the other occupants of the house had no knowledge of them. As a result, the said other occupants of the house were released from custody.

On 15 August 1988, Amelia Roque was brought to the Caloocan City Fiscal for inquest after which an information charging her with violation of PD 1866 was filed with the Regional Trial Court of Caloocan City. The case is docketed therein as Criminal Case No. C-1196. Another information for violation of the Anti-Subversion Act was filed against Amelia Roque before the Metropolitan Trial Court of Caloocan City, which is docketed therein as Criminal Case No. C-150458. An information for violation of the Anti-Subversion Act was filed against Wilfredo Buenaobra before the Metropolitan Trial Court of Marikina, Metro Manila. The case is docketed therein as Criminal Case No. 23715. Bail was set at P4,000.00. On 24 August 1988, a petition for habeas corpus was filed before this Court on behalf of Amelia Roque and Wilfredo Buenaobra. At the hearing of the case, however, Wilfredo Buenaobra manifested his desire to stay in the PC-INP Stockade at Camp Crame, Quezon City. According, the petition for habeas corpus filed on his behalf is now moot and academic. Only the petition of Amelia Roque remains for resolution. The contention of respondents that petitioners Roque and Buenaobra are officers and/or members of the National United Front Commission (NUFC) of the CPP was not controverted or traversed by said petitioners. The contention must be deemed admitted. 5 As officers and/or members of the NUFC-CPP, their arrest, without warrant, was justified for the same reasons earlier stated vis-a-vis Rolando Dural. The arrest without warrant of Roque was additionally justified as she was, at the time of apprehension, in possession of ammunitions without license to possess them. III In G.R. Nos. 84583-84 (Anonuevo vs. Ramos), the arrest of Domingo Anonuevo and Ramon Casiple, without warrant, is also justified under the rules. Both are admittedly members of the standing committee of the NUFC and, when apprehended in the house of Renato Constatino, they had a bag containing subversive materials, and both carried firearms and ammunition for which they had no license to possess or carry. The record of these two (2) cases shows that at about 7:30 o'clock in the evening of 13 August 1988, Domingo T. Anonuevo and Ramon Casiple arrived at the house of Renato Constatino at Marikina Heights, Marikina, which was still under surveillance by military agents. The military agents noticed bulging objects on their waist lines. When frisked, the agents found them to be loaded guns. Anonuevo and Casiple were asked to show their permit or license to possess or carry firearms and ammunition, but they could not produce any. Hence, they were brought to PC Headquarters for investigation. Found in their possession were the following articles: a) Voluminous subversive documents b) One (1) Cal. 7.65 MOD 83 2C Pistol SN: 001412 with one (1) magazine for Cal. 7.65 containing ten (10) live ammunition of same caliber; c) One (1) Cal. 7.65 Pietro Barreta SN; A18868 last digit tampered with one (1) magazine containing five (5) live ammunition of same caliber. At the PC Stockade, Domingo Anonuevo was identified as "Ka Ted", and Ramon Casiple as "Ka Totoy" of the CPP, by their comrades who had previously surrendered to the military. On 15 August 1988, the record of the investigation and other documentary evidence were forwarded to the Provincial Fiscal at Pasig, Metro Manila, who conducted an inquest, after which Domingo Anonuevo and Ramon Casiple were charged with violation of Presidential Decree No. 1866 before the Regional Trial Court of Pasig, Metro Manila. The cases are docketed therein as Criminal Cases Nos. 74386 ad 74387, respectively. No bail was recommended. On 24 August 1988, a petition for habeas corpus was filed with this Court on behalf of Domingo Anonuevo and Ramon Casiple, alleging that the said Anonuevo and Casiple were unlawfully arrested without a warrant and that the informations filed against them are null and void for having been filed without prior hearing and preliminary investigation. On 30 August 1988, the Court issued the writ of habeas corpus, and after the respondents had filed a Return of the Writ, the parties were heard. The petitioners' (Anonuevo and Casiple) claim that they were unlawfully arrested because there was no previous warrant of arrest, is without merit The record shows that Domingo Anonuevo and Ramon Casiple were carrying unlicensed firearms and ammunition in their person when they were apprehended. There is also no merit in the contention that the informations filed against them are null and void for want of a preliminary investigation. The filing of an information, without a preliminary investigation having been first conducted, is sanctioned by the Rules. Sec. 7, Rule 112 of the Rules of Court, as amended, reads: Sec. 7. When accused lawfully arrested without a warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting officer or person. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. 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 adduced evidence in his favor in the manner prescribed in this Rule. The petitioners Domingo Anonuevo and Ramon Casiple, however, refused to sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended. In the informations filed against them, the prosecutor made identical certifications, as follows: This is to certify that the accused has been charged in accordance with Sec. 7, Rule 112 of the 1985 Rules on Criminal Procedure, that no preliminary investigation was conducted because the accused has not made and signed a waiver of the provisions of Art. 125 of the Revised Penal Code, as amended; that based on the evidence presented, there is reasonable ground to believe that the crime has been committed, and that the accused is probably guilty thereof.

Nor did petitioners ask for a preliminary investigation after the informations had been filed against them in court. Petitioners cannot now claim that they have been deprived of their constitutional right to due process. IV In G.R. No. 83162 (Ocaya vs. Aguirre), the arrest without warrant, of Vicky Ocaya is justified under the Rules, since she had with her unlicensed ammunition when she was arrested. The record of this case shows that on 12 May 1988, agents of the PC Intelligence and Investigation of the Rizal PC-INP Command, armed with a search warrant issued by Judge Eutropio Migrino of the Regional Trial Court of Pasig, Metro Manila, conducted a search of a house located at Block 19, Phase II, Marikina Green Heights, Marikina, Metro Manila, believed to be occupied by Benito Tiamson, head of the CPP-NPA. In the course of the search, Vicky Ocaya arrived in a car driven by Danny Rivera. Subversive documents and several rounds of ammunition for a .45 cal. pistol were found in the car of Vicky Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought to the PC Headquarters for investigation. When Vicky Ocaya could not produce any permit or authorization to possess the ammunition, an information charging her with violation of PD 1866 was filed with the Regional Trial Court of Pasig, Metro Manila. The case is docketed therein as Criminal Case No. 73447. Danny Rivera, on the other hand, was released from custody. On 17 May 1988, a petition for habeas corpus was filed, with this Court on behalf of Vicky Ocaya and Danny Rivera. It was alleged therein that Vicky Ocaya was illegally arrested and detained, and denied the right to a preliminary investigation. It would appear, however, that Vicky Ocaya was arrested in flagranti delicto so that her arrest without a warrant is justified. No preliminary investigation was conducted because she was arrested without a warrant and she refused to waive the provisions of Article 125 of the Revised Penal Code, pursuant to Sec. 7, Rule 112 of the Rule of Court, as amended. V The petitioners Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia Roque claim that the firearms, ammunition and subversive documents alleged to have been found in their possession when they were arrested, did not belong to them, but were "planted" by the military agents to justify their illegal arrest. The petitioners, however, have not introduced any evidence to support their aforesaid claim. On the other hand, no evil motive or ill-will on the part of the arresting officers that would cause the said arresting officers in these cases to accuse the petitioners falsely, has been shown. Besides, the arresting officers in these cases do not appear to be seekers of glory and bounty hunters for, as counsel for the petitioners Anonuevo and Casiple say, "there is absolutely nothing in the evidence submitted during the inquest that petitioners are on the 'AFP Order of Battle with a reward of P150,000.00 each on their heads.'" 6 On the other hand, as pointed out by the Solicitor General, the arrest of the petitioners is not a product of a witch hunt or a fishing expedition, but the result of an in-depth surveillance of NPA safehouses pointed to by no less than former comrades of the petitioners in the rebel movement. The Solicitor General, in his Consolidated Memorandum, aptly observes: . . . . To reiterate, the focal point in the case of petitioners Roque, Buenaobra, Anonuevo and Casiple, was the lawful search and seizure conducted by the military at the residence of Renato Constantino at Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila. The raid at Constantino's residence, was not a witch hunting or fishing expedition on the part of the military. It was a result of an in-depth military surveillance coupled with the leads provided by former members of the underground subversive organizations. That raid produced positive results. to date, nobody has disputed the fact that the residence of Constantino when raided yielded communication equipment, firearms and ammunitions, as well as subversive documents. The military agents working on the information provided by Constantino that other members of his group were coming to his place, reasonably conducted a "stake-out" operation whereby some members of the raiding team were left behind the place. True enough, barely two hours after the raid and Constantino's arrest, petitioner Buenaobra arrived at Constantino's residence. He acted suspiciously and when frisked and searched by the military authorities, found in his person were letters. They are no ordinary letters, as even a cursory reading would show. Not only that, Buenaobra admitted that he is a NPA courier and was there to deliver the letters to Constantino. Subsequently, less than twenty four hours after the arrest of Constantino and Buenaobra, petitioners Anonuevo and Casiple arrived at Constantino's place. Would it be unreasonable for the military agents to believe that petitioners Anonuevo and Casiple are among those expected to visit Constantino's residence considering that Constatino's information was true, in that Buenaobra did come to that place? Was it unreasonable under the circumstances, on the part of the military agents, not to frisk and search anyone who should visit the residence of Constantino, such as petitioners Anonuevo and Casiple? Must this Honorable Court yield to Anonuevo and Casiple's flimsy and bare assertion that they went to visit Constantino, who was to leave for Saudi Arabia on the day they were arrested thereat? As to petitioner Roque, was it unreasonable for the military authorities to effect her arrest without warrant considering that it was Buenaobra who provided the leads on her identity? It cannot be denied that Buenaobra had connection with Roque. Because the former has the phone number of the latter. Why the necessity of jumbling Roque's telephone number as written on a piece of paper taken from Buenaobra's possession? Petitioners Roque and Buenaobra have not offered any plausible reason so far. In all the above incidents, respondents maintain that they acted reasonably, under the time, place and circumstances of the events in question, especially considering that at the time of petitioner's arrest, incriminatory evidence, i.e, firearms, ammunitions and/or subversive documents were found in their possession. Petitioners, when arrested, were neither taking their snacks nor innocently visiting a camp, but were arrested in such time, place and circumstances, from which one can reasonably conclude tat they were up to a sinister plot, involving utmost secrecy and comprehensive conspiracy. IV

In. G.R. No. 85727 (Espiritu vs. Lim), the release on habeas corpus of the petitioner Deogracias Espiritu, who is detained by virtue of an Information for Violation of Article 142 of the Revised Penal Code (Inciting to Sedition) filed with the Regional Trial Court of Manila, is similarly not warranted. The record of the case shows that the said petitioner is the General Secretary of the Pinagkaisahang Samahan ng Tsuper at Operators Nationwide (PISTON), an association of drivers and operators of public service vehicles in the Philippines, organized for their mutual aid and protection. Petitioner claims that at about 5:00 o'clock in the morning of 23 November 1988, while he was sleeping in his home located at 363 Valencia St., Sta. Mesa, Manila, he was awakened by his sister Maria Paz Lalic who told him that a group of persons wanted to hire his jeepney. When he went down to talk to them, he was immediately put under arrest. When he asked for the warrant of arrest, the men, headed by Col. Ricardo Reyes, bodily lifted him and placed him in their owner-type jeepney. He demanded that his sister, Maria Paz Lalic, be allowed to accompany him, but the men did not accede to his request and hurriedly sped away. He was brought to Police Station No. 8 of the Western Police District at Blumentritt, Manila where he was interrogated and detained. Then, at about 9:00 o'clock of the same morning, he was brought before the respondent Lim and, there and then, the said respondent ordered his arrest and detention. He was thereafter brought to the General Assignment Section, Investigation Division of the Western Police District under Police Capt. Cresenciano A. Cabasal where he was detained, restrained and deprived of his liberty. 7 The respondents claim however, that the detention of the petitioner is justified in view of the Information filed against him before the Regional Trial Court of Manila, docketed therein as Criminal Case No. 88-683-85, charging him with violation of Art. 142 of the Revised Penal Code (Inciting to Sedition). The respondents also claim that the petitioner was lawfully arrested without a judicial warrant of arrest since petitioner when arrested had in fact just committed an offense in that in the afternoon of 22 November 1988, during a press conference at the National Press Club. Deogracias Espiritu through tri-media was heard urging all drivers and operators to go on nationwide strike on November 23, 1988, to force the government to give into their demands to lower the prices of spare parts, commodities, water and the immediate release from detention of the president of the PISTON (Pinag-isang Samahan ng Tsuper Operators Nationwide). Further, we heard Deogracias Espiritu taking the place of PISTON president Medardo Roda and also announced the formation of the Alliance Drivers Association to go on nationwide strike on November 23, 1988. 8 Policemen waited for petitioner outside the National Pres Club in order to investigate him, but he gave the lawmen the slip. 9 He was next seen at about 5:00 o'clock that afternoon at a gathering of drivers and symphatizers at the corner of Magsaysay Blvd. and Valencia Street, Sta. Mesa, Manila where he was heard to say: Bukas tuloy ang welga natin, sumagot na ang Cebu at Bicol na kasali sila, at hindi tayo titigil hanggang hindi binibigay ng gobyerno ni Cory ang gusto nating pagbaba ng halaga ng spare parts, bilihin at and pagpapalaya sa ating pinuno na si Ka Roda hanggang sa magkagulo na. 10 (emphasis supplied) The police finally caught up with the petitioner on 23 November 1988. He was invited for questioning and brought to police headquarters after which an Information for violation of Art. 142 of the Revised Penal Code was filed against him before the Regional Trial Court of Manila. 11 Since the arrest of the petitioner without a warrant was in accordance with the provisions of Rule 113, Sec. 5(b) of the Rules of Court and that the petitioner is detained by virtue of a valid information filed with the competent court, he may not be released on habeas corpus. He may, however be released upon posting bail as recommended. However, we find the amount of the recommended bail (P60,000.00) excessive and we reduce it to P10,000.00 only. VII In G.R. No. 86332 (Nazareno vs. Station Commander), we also find no merit in the submission of Narciso Nazareno that he was illegally arrested and is unlawfully detained. The record of this case shows that at about 8:30 o'clock in the morning of 14 December 1988, one Romulo Bunye II was killed by a group of men near the corner of T. Molina and Mendiola Streets in Alabang, Muntinglupa, Metro Manila. One of the suspects in the killing was Ramil Regal who was arrested by the police on 28 December 1988. Upon questioning, Regal pointed to Narciso Nazareno as on of his companions in the killing of the said Romulo Bunye II. In view thereof, the police officers, without warrant, picked up Narciso Nazareno and brought him to the police headquarters for questioning. Obviously, the evidence of petitioner's guilt is strong because on 3 January 1989, an information charging Narciso Nazareno, Ramil Regala, and two (2) others, with the killing of Romulo Bunye II was filed with the Regional Trial Court of Makati, Metro Manila. The case is docketed therein as Criminal Case No. 731. On 7 January 1989, Narciso Nazareno filed a motion to post bail, but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court. On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, returnable to the Presiding Judge of the Regional Trial Court of Bian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition. At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Bian, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which had taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him). The findings of the Presiding Judge of the Regional Trial Court of Bian, Laguna are based upon the facts and the law. Consequently, we will not disturb the same. Evidently, the arrest of Nazareno was effected by the police without warrant pursuant to Sec. 5(b), Rule 113, Rules of Court after he was positively implicated by his co-accused Ramil Regala in the killing of Romulo Bunye II; and after investigation by the police authorities. As held in People vs. Ancheta: 12 The obligation of an agent of authority to make an arrest by reason of a crime, does not presuppose as a necessary requisite for the fulfillment thereof, the indubitable existence of a crime. For the detention to be perfectly legal, it is sufficient that the agent or person in authority making the arrest has reasonably sufficient grounds to believe the

existence of an act having the characteristics of a crime and that the same grounds exist to believe that the person sought to be detained participated therein. VIII It is to be noted that, in all the petitions here considered, criminal charges have been filed in the proper courts against the petitioners. The rule is, that if a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court judge, and that the court or judge had jurisdiction to issue the process or make the order, of if such person is charged before any court, the writ of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing that: Sec. 4. When writ is 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 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 a convicted of an offense in the Philippines or of a person suffering imprisonment under lawful judgment. (emphasis supplied) At this point, we refer to petitioner's plea for the Court of re-examine and, thereafter, abandon its pronouncement in Ilagan vs. Enrile, 13 that a writ of habeas corpus is no longer available after an information is filed against the person detained and a warrant of arrest or an order of commitment, is issued by the court where said information has been filed. 14 The petitioners claim that the said ruling, which was handed down during the past dictatorial regime to enforce and strengthen said regime, has no place under the present democratic dispensation and collides with the basic, fundamental, and constitutional rights of the people. Petitioners point out that the said doctrine makes possible the arrest and detention of innocent persons despite lack of evidence against them, and, most often, it is only after a petition for habeas corpus is filed before the court that the military authorities file the criminal information in the courts of law to be able to hide behind the protective mantle of the said doctrine. This, petitioners assert, stands as an obstacle to the freedom and liberty of the people and permits lawless and arbitrary State action. We find, however, no compelling reason to abandon the said doctrine. It is based upon express provision of the Rules of Court and the exigencies served by the law. The fears expressed by the petitioners are not really unremediable. As the Court sees it, re-examination or reappraisal, with a view to its abandonment, of the Ilagan case doctrine is not the answer. The answer and the better practice would be, not to limit the function of the habeas corpus to a mere inquiry as to whether or not the court which issued the process, judgment or order of commitment or before whom the detained person is charged, had jurisdiction or not to issue the process, judgment or order or to take cognizance of the case, but rather, as the Court itself states in Morales, Jr. vs. Enrile, 15 "in all petitions for habeas corpus the court must inquire into every phase and aspect of petitioner's detention-from the moment petition was taken into custody up to the moment the court passes upon the merits of the petition;" and "only after such a scrutiny can the court satisfy itself that the due process clause of our Constitution has in fact been satisfied." This is exactly what the Court has done in the petitions at bar. This is what should henceforth be done in all future cases of habeas corpus. In Short, all cases involving deprivation of individual liberty should be promptly brought to the courts for their immediate scrutiny and disposition. WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs. SO ORDERED. Fernan C.J., Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur. Separate Opinions CRUZ, J., dissenting and concurring: I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla v. Enrile that subversion is a continuing offense, to justify the arrest without warrant of any person at any time as long as the authorities say he has been placed under surveillance on suspicion of the offense. That is a dangerous doctrine. A person may be arrested when he is doing the most innocent acts, as when he is only washing his hands, or taking his supper, or even when he is sleeping, on the ground that he is committing the "continuing" offense of subversion. Libertarians were appalled when that doctrine was imposed during the Marcos regime. I am alarmed that even now this new Court is willing to sustain it. I strongly urge my colleagues to discard it altogether as one of the disgraceful vestiges of the past dictatorship and uphold the rule guaranteeing the right of the people against unreasonable searches and seizures. We can do no less if we are really to reject the past oppression and commit ourselves to the true freedom. Even if it be argued that the military should be given every support in our fight against subversion, I maintain that that fight must be waged honorably, in accordance with the Bill of Rights. I do not believe that in fighting the enemy we must adopt the ways of the enemy, which are precisely what we are fighting against. I submit that our more important motivation should be what are we fighting for. Except for this reservation and appeal, I concur with the decision. FELICIANO, J., concurring: I concur in the result reached in each of the eight (8) consolidated Petitions for Habeas Corpus. At the same time, I have some reservations concerning certain statements made by the Court in G.R. No. 81567 (Umil, et al. v. Ramos) (Part I of the Decision) and in G.R. No. 85727 (Espiritu v. Lim) (Part VI of the Decision). In G.R. No. 81567 (Umil, et al. v. Ramos), the per curiam opinion states categorically that: "the crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes." The majority here relies upon Garcia-Padilla v. Enrile (121 SCRA 472 [1983]). The majority there made the same equally broad statement but without any visible effort to examine the basis, scope and meaning of such a sweeping statement. Garcia-Padilla did not even identify the specific offenses which it regarded as "in the nature of continuing offenses which set them apart from the common offenses" (121 SCRA at 489). It appears to me that in G.R. No. 85727 (Espiritu v. Lim) (Part VI of the Decision), the per curiam opinion has in effect included the offense of "inciting to sedition" penalized under Article 142 of the Revised Penal

Code as a "continuing offense" under the capacious blanket of the majority opinion in Garcia-Padilla, at least for purposes of determining the legality of the arrest without a warrant of petitioner Deogracias Espiritu. I would respectfully recall to my learned colleagues in the Court that "inciting to sedition" is defined in Article 142 of the Revised Penal Code in terms of speech 1 and that consequently it is important constantly do distinguish between speech which is protected by the constitutional guaranty of freedom of speech and of the press and speech which may constitutionally be regarded as violative of Article 142 of the Revised Penal Code. Precisely because speech which the police authorities might regard as seditious or as criminal inciting to sedition may well turn out to be only an exercise of a constitutionally guaranteed freedom, I would submit that we must apply the concept of "continuing offense" narrowly for purposes of application of Section 5(b), Rule 113 of the Revised Rules of Court. In my view, the very broad statement made about "continuing crimes" in G.R. No. 81567 (Umil, et al v. Ramos) constitutes dictum, considering that Rolando Dural and Bernardo Itucal, Jr. had already been tried in the court below for "double murder, etc." and found guilty of the offense charged, sentenced accordingly, and at least in the case of Rolando Dural, service of the sentence imposed upon him by the trial court had already begun. Similarly, in G.R. No. 85727 (Espiritu v. Lim) the statement that the arrest of petitioner Espiritu without a warrant was in accordance with the provisions of Section 5(b), Rule 113 of the Revised Rules of Court does not appear strictly necessary, considering that the petitioner had already been charged in a valid information filed with the competent court, which court had presumably issued an order for his commitment, and considering further that he is entitled to bail. There is thus no obstacle, to my mind, to a careful examination of the doctrine of "continuing crimes" as applied to such offenses as subversion and inciting to sedition and possibly other offenses, in some future case where that issue is raised squarely and is unavoidable. Cortes, J., concurs. SARMIENTO, J., dissenting: I beg to differ from my brethren. I submit that habeas corpus lies in all eight cases. G.R. No. 81567 The majority says that Rolando Dural's arrest without a warrant is lawful under the Rules of Court, which reads: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. 1 "Rolando Dural," so states the majority, "was arrested for being a member of the New People's Army (NPA), an outlawed subversive organization," 2 and that "[s]ubversion being a continuing offense, the arrest of Rolando Dural without a warrant is justified as it can be said that he was committing an offense when arrested." 3 As I said, I beg to differ. First, Rolando Dural was charged with "Double Murder with Assault upon Agents of Authority." 4 If he had been guilty of subversion the offense for which he was supposedly arrested via a warrantless arrest subversion was the logical crime with which he should have been charged. The authorities could not have rightly arrested him for subversion on account of the slay of the two CAPCOM soldiers, a possible basis for violation of the Anti-Subversion Act, because as the majority points out, "he was not arrested while in the act of shooting [them] . . . [n]or was he arrested just after the commission of the said offense for his arrest came a day after the said shooting incident." 5 Second, I do not believe that a warrantless (or citizen's) arrest is possible in case of subversion in the absence of any overt act that would justify the authorities to act. "Subversion," as the term is known in law, means "knowingly, wilfully and by overt acts affiliat[ing] [oneself] with, becom[ing] or remain[ing] a member of the Communist Party of the Philippines and/or its successor or of any subversion association as defined in sections two and three hereof. . . . " 6 Logically, the military could not have known that Dural, at the time he was taken, was a member of the New People's Army because he was not performing any over act that he was truly, a rebel. Indeed, it had to take a "verification" 6 before he could be identified as allegedly a member of the underground army. Under these circumstances, I am hard put to say that he was committing subversion when he was arrested, assuming that he was guilty of subversion, for purposes of a warrantless arrest. "Overt act" is made up of "[e]very act, movement, deed and word of the [accused]," 7 indicating intent to accomplish a criminal objective. Dural, at the time he was arrested, was lying in a hospital bed. This is not the overt act contemplated by law. Under the Rule above-quoted, the person must have either been apprehended in flagranti (first paragraph) or after the act, provided that the peace officer has "personal knowledge" that he, the suspect, is guilty. (second paragraph.) As I stated, Dural was not caught in the act. Moreover, what the Regional Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) had in its hands was a mere "confidential information." I do not think that this is the personal knowledge referred to by the second paragraph. 8 Plainly and simply, it is hearsay. The rule, furthermore, on warrantless arrest is an exceptional one. By its language, it may be exercised only in the most urgent cases and when the guilt of an offender is plain and evident. What I think we have here is purely and simply, the military taking the law in its hands.

By stamping validity to Rolando Dural's warrantless arrest, I am afraid that the majority has set a very dangerous precedent. With all due respect, my brethren has accorded the military a blanket authority to pick up any Juan, Pedro, and Maria without a warrant for the simple reason that subversion is supposed to be a continuing offense. That Rolando Dural was arrested for being a member of the New People's Army" 9 is furthermore to me, a hasty statement. It has yet to be established that Dural is indeed a member of the Communist Party's military arm. And unless proven guilty, he is presumed, and must be presumed most of all by this Court, to be innocent. The majority also says that habeas corpus is moot and academic because Dural has been convicted and is serving sentence. I likewise take exception. It has been held that: "The writ may be granted upon a judgment already final." 10 The writ of liberty is a high prerogative writ. 11 Vindication of due process is its historic office. 12 G.R. Nos. 84581-82 In the case of Wilfredo Buenaobra, the majority avers that he had "manifested his desire to stay in the PC-INP stockade," 13 for which habeas corpus has supposedly become moot and academic. I am not convinced that that is reason enough to dismiss habeas corpus as moot and academic. It is the duty of this Court, in my opinion, to make sure that Buenaobra has made his choice freely and voluntarily. Personally, I find it indeed strange why he should prefer to stay in jail than go scot-free. There is further no doubt that Buenaobra's petition is one impressed with a public interest. In one case 14 we denied a motion to withdraw a petition for habeas corpus in view of its far-reaching importance to the motion, I do not see how we should act differently, perhaps even insouciantly, here, especially since it involves persons who think and believe differently from the rest of us. Both Buenaobra and Amelia Roque supposedly admitted that they were ranking officers of the Communist Party of the Philippines. According to the majority, Buenaobra and Roque are bound by their admissions. 15 That both parties had admitted to be members of the Communist Party of the Philippines (the National United Front Commission) is a naked contention of the military. The fact that it has not been controverted, in my view, does not justify the couple's arrest without warrant. Worse, by relying on the bare word of the military, this very Court has, to all intents and purposes, condemned the duo for a crime (subversion and/or illegal possession of firearms) the bone of contention, precisely, below. G.R. Nos. 84583-84 I also find the warrantless arrests of Domingo Aonuevo and Ramon Casiple to be contrary to law. That they are "admittedly members of the standing committee of the NUFC" 16 and that "subversive materials" 17 and unlicensed firearms were found in their possession, are, like Buenaobra's and Roque's cases, barren claims of the military. I also fear that by the majority's strong language (that Aonuevo and Casiple are admitted NUCF officers) the majority has pronounced the petitioners guilty, when the lower courts have yet to sit in judgment. I think we should be the last to preempt the decision of the trial courts. We would have set to naught the presumption of innocence accused persons enjoy. G.R. No. 83162 With respect to the case of Vicky Ocaya, I am afraid that I am inclined towards the same conclusion. There was basis at the outset to say that Ocaya was probably guilty of illegal possession of firearms. As I have observed, a warrantless arrest must be predicated upon the existence of a crime being actually committed or having been committed. What I find here, rather, is nothing less than a successful fishing expedition conducted by the military upon an unwary citizen. I am quite distressed to note that this is still possible under a supposed democracy. G.R. No. 85727 Deogracias Espiritu was fast asleep in his house when he was placed under arrest. For the life of me, I can not figure out how one can be picked upon in one's own home and held moments later without a warrant of arrest. Espiritu was allegedly guilty of inciting to sedition as a result of a speech delivered in a press conference at the National Press Club on November 21, 1988. He was, however, arrested the day after, November 22, 1988. Under these circumstances, it eludes me how an arrest without a warrant could be justified, either under paragraph (a) or paragraph (b) of the Rule on warrantless arrests. The majority avers that since an information had been filed with the court, Espiritu's detention, is allegedly justifiable. The question is whether or not an information is an authority to hold a person in custody. Under the Rules, an information means "an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court." 18 It is not, however, an order to keep one under detention. G.R. No. 86332 The offense for which Narciso Nazareno is being held the fatal shooting of Romulo Bunye II was committed on December 14, 1988. It was, however, only on December 28, 1988 that the police collared a suspect, Ramil Regala, who subsequently pointed to Nazareno as his accomplice. It also escapes me how Nazareno, under these circumstances, could have been validly put under arrest without a warrant or the existence of the circumstance described under either paragraph (a) or (b) of the Rule above-quoted: The crime had long been committed prior to the arrest. G.R. Nos. 81567; 84581-82; 84583-84; 83162; 85727 & 86332; Postscripts The majority has disposed of these cases on the bedrock of what I view as doctrines that have lost their luster: 1. The teaching of Garcia-Padilla v. Enrile, 19 which held that subversion is a continuing offense; 2. The ruling in Ilagan v. Enrile. 20 I also find, for reasons to be set forth hereinafter, a glossing over of the fundamental rights of the petitioners under the Constitution in the authorities' handling of the petitioners' cases. I hold that Garcia-Padilla is no longer good law under the present Constitution. Two reasons persuade me. First, it is repugnant to due process of law. ("The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which require the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable." 21 Under the 1987 Constitution, not even "[a] state of martial law suspend[s] the operation of [the Charter]. . ." 22 Second, it leaves the liberty of citizens to the whim of one man ("On these occasions [the existence of a state of emergency], the President takes absolute command, for the very life

of the Nation and its government, which, incidentally, includes the courts, is in grave peril. In so doing, the President is answerable only to his conscience, the people and to God. For their part, in giving him the supreme mandate as their President, the people can only trust and pray that, giving him their own loyalty and without patriotism, the President will not fail them." 23 ) Under the Charter now prevailing, the Chief Executive shares, to a certain extent, the exercise of emergency powers, with Congress. 24 As a law advocate under the regime of Marcos, I had challenged the soundness of Garcia-Padilla. I doubted whether it could stand up under the aegis of the 1973 Constitution. I still doubt whether it can withstand scrutiny under the 1987 Constitution. The majority also fails to point out that six days after Garcia-Padilla was handed down, the Court promulgated Morales, Jr. v. Enrile, 25 a case that in my view has significantly whittled down Garcia-Padilla's very esse. In that case, Mr. Justice Hermogenes Concepcion, Jr. wrote for the majority: xxx xxx xxx 16. After a person is arrested . . . without a warrant . . . the proper complaint or information against him must be filed with the courts of justice within the time prescribed by law. . . 17. Failure of the public officer to do so without any valid reason would constitute a violation of Art. 125, Revised Penal Code, as amended. And the person detained would be entitled to be released on a writ of habeas corpus, unless he is detained under subsisting process issued by a competent court. 26 I also gather from the records that none of the petitioners had been: (1) informed of their right to remain silent; and (2) to have competent and independent counsel. 27 As I said, the majority is denying habeas corpus on self-serving claims of the military that the petitioners (Dural, Buenaobra, Roque, Aonuevo, and Casiple) are members of the Communist Party of the Philippines and that they have supposedly confessed to be in fact members of the outlawed organization. The question that has not been answered is whether or not these supposed confessions are admissible, for purposes of a warrantless arrest, as evidence of guilt, in the absence of any showing that they were apprised of their constitutional rights. I am perturbed by the silence of the majority. I am distressed because as we held in one case, violation of the Constitution divests the court of jurisdiction and entitles the accused to habeas corpus. 28 According to the majority, a "re-examination or re-appraisal . . . of the Ilagan doctrine is not the answer." 29 In my considered opinion, Ilagan v. Enrile 30 does not rightfully belong in the volumes of Philippine jurisprudence. In that case, the petitioners, three Davao-based lawyers, were held by virtue of a simple information ("the petition herein has been rendered moot and academic by virtue of the filing of an Information against them for Rebellion . . . and the issuance of a Warrant of Arrest against them" 31 ) without any preliminary investigation (examination) having been previously conducted (to justify the issuance of a warrant).itc-asl As I have stated, an information is not a warrant of arrest. The fact that an information exists does not mean that a warrant will be issued. Accused persons have the right of preliminary investigation (examination). 32 It forms part and parcel of due process of law . 33 I find the majority's reliance on U.S. v. Wilson, 34 an ancient (1905) decision, inapt and untenable. In that case, the accused had been served with a warrant and thereafter taken into custody. The question that faced the Court was whether or not the warrant was valid, amid the accused's charges that the judge who issued it did not examine the complainant under oath. We held that the query was academic, because the accused had already pleaded, and the case had entered the trial stage. The cases at bar are not on all fours. Here, no warrant has been issued. I submit that in that event, the petitioners are entitled to freedom by way of the writ of liberty. xxx xxx xxx The apprehensions in question chronicle in my mind the increasing pattern of arrests and detention in the country without the sanction of a judicial decree. Four years ago at "EDSA", and many years before it, although with much fewer of us, we valiantly challenged a dictator and all the evils his regime had stood for: repression of civil liberties and trampling on of human rights. We set up a popular government, restored its honored institutions, and crafted a democratic constitution that rests on the guideposts of peace and freedom. I feel that with this Court's ruling, we have frittered away, by a stroke of the pen, what we had so painstakingly built in four years of democracy, and almost twenty years of struggle against tyranny. It also occurs to me that I am interposing what looms as a quixotic outlook of Philippine law on warrantless arrests and its implications on liberty. It is an impression that does not surprise me. Quixotic as they may seem, and modesty aside, my views reflect a strong bias on my part forged by years of experience and sharpened by a painful and lonely struggle for freedom and justice toward men and women who challenge settled beliefs. If this dissent can not gain any adherent for now, let it nevertheless go on record as a plea to posterity and an appeal for tolerance of opinions with which we not only disagree, but opinions we loathe. I feel it is my duty to articulate this dissent. Separate Opinions CRUZ, J., dissenting and concurring: I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla v. Enrile that subversion is a continuing offense, to justify the arrest without warrant of any person at any time as long as the authorities say he has been placed under surveillance on suspicion of the offense. That is a dangerous doctrine. A person may be arrested when he is doing the most innocent acts, as when he is only washing his hands, or taking his supper, or even when he is sleeping, on the ground that he is committing the "continuing" offense of subversion. Libertarians were appalled when that doctrine was imposed during the Marcos regime. I am alarmed that even now this new Court is willing to sustain it. I strongly urge my colleagues to discard it altogether as one of the disgraceful vestiges of the past dictatorship and uphold the rule guaranteeing the right of the people against unreasonable searches and seizures. We can do no less if we are really to reject the past oppression and commit ourselves to the true freedom. Even if it be argued that the military should be given every support in our fight against subversion, I maintain that that fight must be waged honorably, in accordance with the Bill of Rights. I do not believe that in fighting the enemy we must adopt the ways of the enemy, which are precisely what we are fighting against. I submit that our more important motivation should be what are we fighting for.

Except for this reservation and appeal, I concur with the decision. FELICIANO, J., concurring: I concur in the result reached in each of the eight (8) consolidated Petitions for Habeas Corpus. At the same time, I have some reservations concerning certain statements made by the Court in G.R. No. 81567 (Umil, et al. v. Ramos) (Part I of the Decision) and in G.R. No. 85727 (Espiritu v. Lim) (Part VI of the Decision). In G.R. No. 81567 (Umil, et al. v. Ramos), the per curiam opinion states categorically that: "the crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State and are in the nature of continuing crimes." The majority here relies upon Garcia-Padilla v. Enrile (121 SCRA 472 [1983]). The majority there made the same equally broad statement but without any visible effort to examine the basis, scope and meaning of such a sweeping statement. Garcia-Padilla did not even identify the specific offenses which it regarded as "in the nature of continuing offenses which set them apart from the common offenses" (121 SCRA at 489). It appears to me that in G.R. No. 85727 (Espiritu v. Lim) (Part VI of the Decision), the per curiam opinion has in effect included the offense of "inciting to sedition" penalized under Article 142 of the Revised Penal Code as a "continuing offense" under the capacious blanket of the majority opinion in Garcia-Padilla, at least for purposes of determining the legality of the arrest without a warrant of petitioner Deogracias Espiritu. I would respectfully recall to my learned colleagues in the Court that "inciting to sedition" is defined in Article 142 of the Revised Penal Code in terms of speech 1 and that consequently it is important constantly do distinguish between speech which is protected by the constitutional guaranty of freedom of speech and of the press and speech which may constitutionally be regarded as violative of Article 142 of the Revised Penal Code. Precisely because speech which the police authorities might regard as seditious or as criminal inciting to sedition may well turn out to be only an exercise of a constitutionally guaranteed freedom, I would submit that we must apply the concept of "continuing offense" narrowly for purposes of application of Section 5(b), Rule 113 of the Revised Rules of Court. In my view, the very broad statement made about "continuing crimes" in G.R. No. 81567 (Umil, et al v. Ramos) constitutes dictum, considering that Rolando Dural and Bernardo Itucal, Jr. had already been tried in the court below for "double murder, etc." and found guilty of the offense charged, sentenced accordingly, and at least in the case of Rolando Dural, service of the sentence imposed upon him by the trial court had already begun. Similarly, in G.R. No. 85727 (Espiritu v. Lim) the statement that the arrest of petitioner Espiritu without a warrant was in accordance with the provisions of Section 5(b), Rule 113 of the Revised Rules of Court does not appear strictly necessary, considering that the petitioner had already been charged in a valid information filed with the competent court, which court had presumably issued an order for his commitment, and considering further that he is entitled to bail. There is thus no obstacle, to my mind, to a careful examination of the doctrine of "continuing crimes" as applied to such offenses as subversion and inciting to sedition and possibly other offenses, in some future case where that issue is raised squarely and is unavoidable. Cortes, J., concurs. SARMIENTO, J., dissenting: I beg to differ from my brethren. I submit that habeas corpus lies in all eight cases. G.R. No. 81567 The majority says that Rolando Dural's arrest without a warrant is lawful under the Rules of Court, which reads: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. 1 "Rolando Dural," so states the majority, "was arrested for being a member of the New People's Army (NPA), an outlawed subversive organization," 2 and that "[s]ubversion being a continuing offense, the arrest of Rolando Dural without a warrant is justified as it can be said that he was committing an offense when arrested." 3 As I said, I beg to differ. First, Rolando Dural was charged with "Double Murder with Assault upon Agents of Authority." 4 If he had been guilty of subversion the offense for which he was supposedly arrested via a warrantless arrest subversion was the logical crime with which he should have been charged. The authorities could not have rightly arrested him for subversion on account of the slay of the two CAPCOM soldiers, a possible basis for violation of the Anti-Subversion Act, because as the majority points out, "he was not arrested while in the act of shooting [them] . . . [n]or was he arrested just after the commission of the said offense for his arrest came a day after the said shooting incident." 5 Second, I do not believe that a warrantless (or citizen's) arrest is possible in case of subversion in the absence of any overt act that would justify the authorities to act. "Subversion," as the term is known in law, means "knowingly, wilfully and by overt acts affiliat[ing] [oneself] with, becom[ing] or remain[ing] a member of the Communist Party of the Philippines and/or its successor or of any subversion association as defined in sections two and three hereof. . . . " 6 Logically, the military could not have known that Dural, at the time he was taken, was a member of the New People's Army because he was not performing any over act that he was truly, a rebel. Indeed, it had to take a "verification" 6 before he

could be identified as allegedly a member of the underground army. Under these circumstances, I am hard put to say that he was committing subversion when he was arrested, assuming that he was guilty of subversion, for purposes of a warrantless arrest. "Overt act" is made up of "[e]very act, movement, deed and word of the [accused]," 7 indicating intent to accomplish a criminal objective. Dural, at the time he was arrested, was lying in a hospital bed. This is not the overt act contemplated by law. Under the Rule above-quoted, the person must have either been apprehended in flagranti (first paragraph) or after the act, provided that the peace officer has "personal knowledge" that he, the suspect, is guilty. (second paragraph.) As I stated, Dural was not caught in the act. Moreover, what the Regional Intelligence Operations Unit of the Capital Command (RIOU-CAPCOM) had in its hands was a mere "confidential information." I do not think that this is the personal knowledge referred to by the second paragraph. 8 Plainly and simply, it is hearsay. The rule, furthermore, on warrantless arrest is an exceptional one. By its language, it may be exercised only in the most urgent cases and when the guilt of an offender is plain and evident. What I think we have here is purely and simply, the military taking the law in its hands. By stamping validity to Rolando Dural's warrantless arrest, I am afraid that the majority has set a very dangerous precedent. With all due respect, my brethren has accorded the military a blanket authority to pick up any Juan, Pedro, and Maria without a warrant for the simple reason that subversion is supposed to be a continuing offense. That Rolando Dural was arrested for being a member of the New People's Army" 9 is furthermore to me, a hasty statement. It has yet to be established that Dural is indeed a member of the Communist Party's military arm. And unless proven guilty, he is presumed, and must be presumed most of all by this Court, to be innocent. The majority also says that habeas corpus is moot and academic because Dural has been convicted and is serving sentence. I likewise take exception. It has been held that: "The writ may be granted upon a judgment already final." 10 The writ of liberty is a high prerogative writ. 11 Vindication of due process is its historic office. 12 G.R. Nos. 84581-82 In the case of Wilfredo Buenaobra, the majority avers that he had "manifested his desire to stay in the PC-INP stockade," 13 for which habeas corpus has supposedly become moot and academic. I am not convinced that that is reason enough to dismiss habeas corpus as moot and academic. It is the duty of this Court, in my opinion, to make sure that Buenaobra has made his choice freely and voluntarily. Personally, I find it indeed strange why he should prefer to stay in jail than go scot-free. There is further no doubt that Buenaobra's petition is one impressed with a public interest. In one case 14 we denied a motion to withdraw a petition for habeas corpus in view of its far-reaching importance to the motion, I do not see how we should act differently, perhaps even insouciantly, here, especially since it involves persons who think and believe differently from the rest of us. Both Buenaobra and Amelia Roque supposedly admitted that they were ranking officers of the Communist Party of the Philippines. According to the majority, Buenaobra and Roque are bound by their admissions. 15 That both parties had admitted to be members of the Communist Party of the Philippines (the National United Front Commission) is a naked contention of the military. The fact that it has not been controverted, in my view, does not justify the couple's arrest without warrant. Worse, by relying on the bare word of the military, this very Court has, to all intents and purposes, condemned the duo for a crime (subversion and/or illegal possession of firearms) the bone of contention, precisely, below. G.R. Nos. 84583-84 I also find the warrantless arrests of Domingo Aonuevo and Ramon Casiple to be contrary to law. That they are "admittedly members of the standing committee of the NUFC" 16 and that "subversive materials" 17 and unlicensed firearms were found in their possession, are, like Buenaobra's and Roque's cases, barren claims of the military. I also fear that by the majority's strong language (that Aonuevo and Casiple are admitted NUCF officers) the majority has pronounced the petitioners guilty, when the lower courts have yet to sit in judgment. I think we should be the last to preempt the decision of the trial courts. We would have set to naught the presumption of innocence accused persons enjoy. G.R. No. 83162 With respect to the case of Vicky Ocaya, I am afraid that I am inclined towards the same conclusion. There was basis at the outset to say that Ocaya was probably guilty of illegal possession of firearms. As I have observed, a warrantless arrest must be predicated upon the existence of a crime being actually committed or having been committed. What I find here, rather, is nothing less than a successful fishing expedition conducted by the military upon an unwary citizen. I am quite distressed to note that this is still possible under a supposed democracy. G.R. No. 85727 Deogracias Espiritu was fast asleep in his house when he was placed under arrest. For the life of me, I can not figure out how one can be picked upon in one's own home and held moments later without a warrant of arrest. Espiritu was allegedly guilty of inciting to sedition as a result of a speech delivered in a press conference at the National Press Club on November 21, 1988. He was, however, arrested the day after, November 22, 1988. Under these circumstances, it eludes me how an arrest without a warrant could be justified, either under paragraph (a) or paragraph (b) of the Rule on warrantless arrests. The majority avers that since an information had been filed with the court, Espiritu's detention, is allegedly justifiable. The question is whether or not an information is an authority to hold a person in custody. Under the Rules, an information means "an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court." 18 It is not, however, an order to keep one under detention. G.R. No. 86332 The offense for which Narciso Nazareno is being held the fatal shooting of Romulo Bunye II was committed on December 14, 1988. It was, however, only on December 28, 1988 that the police collared a suspect, Ramil Regala, who subsequently pointed to Nazareno as his accomplice. It also escapes me how Nazareno, under these circumstances, could have been validly put under arrest without a warrant or the existence of the circumstance described under either paragraph (a) or (b) of the Rule above-quoted: The crime had long been committed prior to the arrest.

G.R. Nos. 81567; 84581-82; 84583-84; 83162; 85727 & 86332; Postscripts The majority has disposed of these cases on the bedrock of what I view as doctrines that have lost their luster: 1. The teaching of Garcia-Padilla v. Enrile, 19 which held that subversion is a continuing offense; 2. The ruling in Ilagan v. Enrile. 20 I also find, for reasons to be set forth hereinafter, a glossing over of the fundamental rights of the petitioners under the Constitution in the authorities' handling of the petitioners' cases. I hold that Garcia-Padilla is no longer good law under the present Constitution. Two reasons persuade me. First, it is repugnant to due process of law. ("The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which require the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable." 21 Under the 1987 Constitution, not even "[a] state of martial law suspend[s] the operation of [the Charter]. . ." 22 Second, it leaves the liberty of citizens to the whim of one man ("On these occasions [the existence of a state of emergency], the President takes absolute command, for the very life of the Nation and its government, which, incidentally, includes the courts, is in grave peril. In so doing, the President is answerable only to his conscience, the people and to God. For their part, in giving him the supreme mandate as their President, the people can only trust and pray that, giving him their own loyalty and without patriotism, the President will not fail them." 23 ) Under the Charter now prevailing, the Chief Executive shares, to a certain extent, the exercise of emergency powers, with Congress. 24 As a law advocate under the regime of Marcos, I had challenged the soundness of Garcia-Padilla. I doubted whether it could stand up under the aegis of the 1973 Constitution. I still doubt whether it can withstand scrutiny under the 1987 Constitution. The majority also fails to point out that six days after Garcia-Padilla was handed down, the Court promulgated Morales, Jr. v. Enrile, 25 a case that in my view has significantly whittled down Garcia-Padilla's very esse. In that case, Mr. Justice Hermogenes Concepcion, Jr. wrote for the majority: xxx xxx xxx 16. After a person is arrested . . . without a warrant . . . the proper complaint or information against him must be filed with the courts of justice within the time prescribed by law. . . 17. Failure of the public officer to do so without any valid reason would constitute a violation of Art. 125, Revised Penal Code, as amended. And the person detained would be entitled to be released on a writ of habeas corpus, unless he is detained under subsisting process issued by a competent court. 26 I also gather from the records that none of the petitioners had been: (1) informed of their right to remain silent; and (2) to have competent and independent counsel. 27 As I said, the majority is denying habeas corpus on self-serving claims of the military that the petitioners (Dural, Buenaobra, Roque, Aonuevo, and Casiple) are members of the Communist Party of the Philippines and that they have supposedly confessed to be in fact members of the outlawed organization. The question that has not been answered is whether or not these supposed confessions are admissible, for purposes of a warrantless arrest, as evidence of guilt, in the absence of any showing that they were apprised of their constitutional rights. I am perturbed by the silence of the majority. I am distressed because as we held in one case, violation of the Constitution divests the court of jurisdiction and entitles the accused to habeas corpus. 28 According to the majority, a "re-examination or re-appraisal . . . of the Ilagan doctrine is not the answer." 29 In my considered opinion, Ilagan v. Enrile 30 does not rightfully belong in the volumes of Philippine jurisprudence. In that case, the petitioners, three Davao-based lawyers, were held by virtue of a simple information ("the petition herein has been rendered moot and academic by virtue of the filing of an Information against them for Rebellion . . . and the issuance of a Warrant of Arrest against them" 31 ) without any preliminary investigation (examination) having been previously conducted (to justify the issuance of a warrant).itc-asl As I have stated, an information is not a warrant of arrest. The fact that an information exists does not mean that a warrant will be issued. Accused persons have the right of preliminary investigation (examination). 32 It forms part and parcel of due process of law . 33 I find the majority's reliance on U.S. v. Wilson, 34 an ancient (1905) decision, inapt and untenable. In that case, the accused had been served with a warrant and thereafter taken into custody. The question that faced the Court was whether or not the warrant was valid, amid the accused's charges that the judge who issued it did not examine the complainant under oath. We held that the query was academic, because the accused had already pleaded, and the case had entered the trial stage. The cases at bar are not on all fours. Here, no warrant has been issued. I submit that in that event, the petitioners are entitled to freedom by way of the writ of liberty. xxx xxx xxx The apprehensions in question chronicle in my mind the increasing pattern of arrests and detention in the country without the sanction of a judicial decree. Four years ago at "EDSA", and many years before it, although with much fewer of us, we valiantly challenged a dictator and all the evils his regime had stood for: repression of civil liberties and trampling on of human rights. We set up a popular government, restored its honored institutions, and crafted a democratic constitution that rests on the guideposts of peace and freedom. I feel that with this Court's ruling, we have frittered away, by a stroke of the pen, what we had so painstakingly built in four years of democracy, and almost twenty years of struggle against tyranny. It also occurs to me that I am interposing what looms as a quixotic outlook of Philippine law on warrantless arrests and its implications on liberty. It is an impression that does not surprise me. Quixotic as they may seem, and modesty aside, my views reflect a strong bias on my part forged by years of experience and sharpened by a painful and lonely struggle for freedom and justice toward men and women who challenge settled beliefs. If this dissent can not gain any adherent for now, let it nevertheless go on record as a plea to posterity and an appeal for tolerance of opinions with which we not only disagree, but opinions we loathe. I feel it is my duty to articulate this dissent.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION 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. Narvasa, Cruz, Gancayco and Medialdea JJ., concur.

THIRD DIVISION [G.R. No. 126005. January 21, 1999] PEOPLE OF THE PHILIPPINES and ALYNN PLEZETTE DY, petitioners, vs. COURT OF APPEALS, BILLY CERBO and JONATHAN CERBO, respondents. DECISION PANGANIBAN, J.: In our criminal justice system, the public prosecutor has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court. Courts must respect the exercise of such discretion when the information filed against the accused is valid on its face, and no manifest error, grave abuse of discretion or prejudice can be imputed to the public prosecutor. The Case Before us is a Petition for Review under Rule 45, seeking to reverse the June 28, 1996 Decision and the August 27, 1996 Resolution if the Court of Appealsi[1] in CA- GR SP No. 36018.ii[2] The assailed Decision dismissed the Petition for Certiorari filed by the petitioners, which sought to annul and set aside two Orders of the Regional Trial Court of Nabunturan, Davao: the June 28, 1994 Order dismissing the Information for murder filed against Private Respondent Billy Cerbo and the August 18, 1994 Order denying petitioners motion for reconsideration. The assailed August 27, 1996 Court of Appeals (CA) Resolution likewise denied petitioners motion for reconsideration. The Facts The case below arose from the fatal shooting of Petitioner Dys mother, Rosalinda Dy, in which the primary suspect was Privat e Respondent Jonathan Cerbo, son of Private Respondent Billy Cerbo. The procedural and factual antecedents of the case were summarized in the challenged Decision of the Court of Appeals as follows: On August 30, 1993, Rosalinda Dy, according to the petition, was shot at pointblank range by private respondent Jonathan Cerbo in the presence and at the office of his father, private respondent Billy Cerbo at Purok 9, Poblacion, Nabunturan, Davao. On September 2, 1993, eyewitness Elsa B. Gumban executed an affidavit positively identifying private respondent Jonathan Cer bo as the assailant. (Annex C, Rollo, p. 34). On September 20, 1993, private respondents Jonathan Cerbo executed a counter-affidavit interposing the defense that the shooting was accidental (Annex D: Rollo, pp. 35-36). On October 6, 1993, the 3rd Municipal Circuit Trial Court of Nabunturan-Mawab, Davao, after a preliminary investigation, found sufficient ground to engender a well-founded belief that the crime of murder has been committed by private respondent Jonathan Cerbo and resolved to forward the entire records of the case to the provincial prosecutor at Tagum, Davao (Annex E, Rollo, pp. 37-38). After [an] information for murder was filed against Jonathan Cerbo, petitioner Alynn Plezette Dy, daughter of the victim Ros alinda Dy, executed an affidavit-complaint charging private respondent Billy Cerbo of conspiracy in the killing (Annex F, Rollo, p. 39), supported by a supplemental affidavit of Elsa B. Gumban, alleging in addition to her previous statement that: 3. In addition to my said sworn statement, I voluntarily and freely aver as follows: a) I vividly recall that while my mistress Rosalinda Go and I were in the office of Billy Cerbo at about 11:45 a.m. on August 30, 1993, Mr. Cerbo personally instructed me to fetch the food from the kitchen [and to bring it] to the office instead of the dining room. b) While bringing the food, Mr. Cerbo again instructed me to place the food [o]n a corner table and

commanded me to sit behind the entrance door and at the same time Mr. Cerbo positioned Rosalinda [on] a chair facing the entrance door for an easy target. c) Immediately after Rosalinda was shot, Mr. Billy Cerbo called his son Jonathan who was running, but did not and ha[s] never bothered to bring Rosalinda to a hospital or even apply first aid. d) To my surprise, Mr. Billy Cerbo, instead of bringing Rosalinda to the hospital, brought her to the funeral parlor and immediately ordered her to be embalmed without even informing her children or any of her immediate relatives xxx. Annex G, Rollo, p. 40.) Private respondent Billy Cerbo Submitted a counter-affidavit denying the allegations of both petitioner Alynn Plezette Dy and Elsa B. Gumban (Annex H, Rollo, pp. 41-42). On or about April 8, 1994, Prosecutor Protacio Lumangtad filed a Motion for leave of court to reinvestigate the case (Annex I. Rollo, pp43-44) which was granted by the respondent judge in an order dated April 28, 1994 (Annex J, Rollo, p. 45). In his resolution dated May 5, 1994, Prosecutor Lumangtad recommended the filing of an amended information including Billy Cerbo xxx as one of the accused in the murder case xxx (Annex K: rollo, pp. 46-49). Accordingly, the prosecution filed an amended information including Billy Cerbo in the murder case. A warrant for his arrest was later issued on May 27, 1994 (Rollo, p. 27). Private respondent Billy Cerbo then filed a motion to quash warrant of arrest arguing that the same was issued without proba ble cause (Rollo, p. 27). On June 28, 1994, respondent Judge issued the first assailed order dismissing the case against Billy Cerbo and recalling the warrant for his arrest[;] the dispositive portion of [the order] reads: 'IN THE LIGHT OF ALL THE FOREGOING, [an] order is hereby issued DISMISSING the case as against Billy Cerbo only. Let, therefore, the warrant of arrest, dated may 27, 1994, be RECALLED. The prosecution is hereby ordered to withdraw its Amended Information and file a new one charging Jonathan Cerbo only. SO ORDERED. (Rollo, pp. 29-30). Private Prosecutor Romeo Tagra filed a motion for reconsideration which was denied by the respondent judge in his second assailed order dated August 18, 1994 (Annex B, Rollo, pp. 31-33).iii[3] The Ruling of the Court of Appeals In its 10-page Decision, the Court of Appeals debunked petitioners assertion that the trial judge committed grave abuse of discretion in recalling the warrant of arrest and subsequently dismissing the case against Billy Cerbo, Citing jurisprudence,iv[4] the appellate court held as follows: The ruling is explicit. 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 exist must either call for the complainant and the witnesses or simply dismiss the case. Petitioners question the applicability of the doctrine laid down in the above[-]mentioned case, alleging that the facts therein are different from the instant case. We rule that the disparity of facts does not prevent the application of the principle. We have gone over the supplemental affidavit of Elsa B. Gumban and taking into account the additional facts and circumstance alleged therein, we cannot say that respondent judge gravely abused his discretion in dismissing the case as against private respondent Billy Cerbo for lack of probable cause xxx xxx xxx "The prosecution, if it really believed that Billy Cerbo is probably guilty by conspiracy, should have presented additional evidence sufficiently and credibly demonstrating the existence of probable cause. xxx xxx xxxv[5] In sum, the Court of Appeals held that Judge Eugenio Valles did not commit grave abuse of discretion in recalling the warrant of arrest issued against Private Respondent Billy Cerbo and subsequently dismissing the Information for murder filed against the private respondent, because the evidence presented thus far did not substantiate such charge. Hence, this petition.vi[6] The Assigned Errors Petitioner Dy avers: 1) The Court of Appeals gravely erred in holding that the Regional Trial Court Judge had the authority to reverse [the public prosecutors] finding of probable cause to prosecute accused xxx and thus dismiss the case filed by the latter on the basis o f a motion to quash warrant of arrest. 2) The Court of Appeals gravely erred in fully and unqualifiedly applying the case of Allado, et. al. vs. PACC, et. al. G.R. No. 113630, [to] the case at bench despite [the] clear difference in their respective factual backdrop[s] and the contrary earlier jurisprudence on the matter.vii[7] On the other hand, the solicitor general posits this sole issue: Whether the Court of Appeals erred in finding that no probable cause exists to merit the filing of charges against private r espondents Billy Cerbo.viii[8] Essentially, the petitioners are questioning the propriety of the trial courts dismissal, for want of evidence, of the Information for murder against Private Respondent Billy Cerbo. In resolving this petition, the discussion of the Court will revolve two points: first, the determination of probable cause as an executive and judicial function and, second, the applicability of Allado and Salonga to the case at bar. The Courts Ruling The petition is meritorious. The trial court erred in dismissing the Information filed against the private respondent. Consequently, the Court of Appeals was likewise in error when it upheld such ruling.

Executive Determination of Probable Cause The determination of probable cause during a preliminary investigation is a function that belongs to the public prosecutor. It is an executive function,ix[9] the correctness of the exercise of which is a matter that the trial court itself does not and may not be compelled to pass upon. The Separate (Concurring) Opinion of former Chief Justice Andres R. Narvasa in Roberts v. Court of Appealsx[10] succinctly elucidates such point in this wise: xxx xxx xxx In this special civil action, this Court is being asked to assume the function of a public prosecutor. It is being asked to determine whether probable cause exists as regards petitioners. More concretely, the Court is being asked to examine and assess such evidence as has thus far been submitted by the parties and, on the basis thereof, make a conclusion as to whether or not it suffices to engender a well founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial. It is a function that this Court should not be called upon to perform. It is a function that properly pertains to the public prosecutor, one that, as far as crimes cognizable by a Regional Trial Court are concerned, and notwithstanding that it involves an adjudicative process of a sort, exclusively pertains, by law, to said executive officer, the public prosecutor. It is moreover a function that in the established scheme of things, is supposed to be performed at the very genesis of, indeed, prefatorily to, the formal commencement of a criminal action. The proceedings before a public prosecutor, it may well be stressed, are essentially preliminary, prefatory and cannot lead to a final, definite and authoritative adjudgment of the guilt or innocence of the persons charged with a felony or crime. Whether or not that function has been correctly discharged by the public prosecutor i. e., whether or not he has made a correct ascertainment of the existence of probable cause in a case, is a matter that the trial court itself does not and may not be compelled to pass upon. It is not for instance permitted for an accused, upon the filing of the information against him by the public prosecutor, to preempt trial by filing a motion with the Trial Court praying for the quashal or dismissal of the indictment on the ground that the evidence upon which the same is based is inadequate. Nor is it permitted, on the antipodal theory that the evidence is in truth inadequate, for the complaining party to present a petition before the Court praying that the public prosecutor be compelled to file the corresponding information against the accused. xxx xxx xxx Indeed, the public prosecutor has broad discretion to determine whether probable cause exist and to charge those whom be or she believes to have committed the crime as defined by law. Otherwise stated, such official has the quasi-judicial authority to determine whether or not a criminal case must be filed in court.xi[11] Thus, in Crespo v. Mogul,xii[12] we ruled: It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence , in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecutions by private persons. xxx Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the duty not to prosecute when the evidence adduced is not sufficient to establish a prima facie case. This broad prosecutorial power is however not unfettered, because just as public prosecutors are obliged to bring forth before the law those who have transgressed it, they are also constrained to be circumspect in filing criminal charges against the innocent. Thus, for crimes cognizable by regional trial courts preliminary investigations are usually conducted. In Ledesma v. Court of Appeals,xiii[13] we discussed the purposes and nature of a preliminary investigation in this manner: The primary objective of a preliminary investigation is to free respondent from the inconvenience, expense, ignominy and str ess of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt in a more or less summary proceeding by a competent office designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of the unnecessary expense an effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless charges. "Such investigation is not part of the trial. A full and exhaustive presentation of the parties evidence is not required, bu t only such as may engender a well-grounded belief than an offense has been committed and that the accused is probably guilty thereof. By reason of the abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches. Judicial Determination of Probable Cause The determination of probable cause to hold a person for trial must be distinguished from the determination of probable cause to issue a warrant of arrest, which is judicial function. The judicial determination of probable cause in the issuance of arrest warrants has been emphasized in numerous cases. In Ho v. People,xiv[14] the Court summarized the pertinent rulings on the subject, as follows: The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. Diokno, where we explained again what probable cause means. Probable cause for the issuance of a warrant of arrest is the existence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested. Hence, the judge, before issuing a warrant of arrest, must satisfy himself that based on the evidence submitted, there is sufficient proof that a cri me has been committed and that the person to be arrested is probably guilty thereof. At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates such evidence in determining probable cause. In Webb v. De Leon, we stressed that the judge merely determines the probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de novo hearing. He simply personally reviews the prosecutors initial determination finding probable cause to see if it is supported by substantial evidence. xxx xxx xxx In light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be too repetitive, we only emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for the purpose different from that

which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e., whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. Thus, even if both should base their findings on one and the same proceedings or evidence, there should be no confusion as to their distinct objectives. Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutors report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutors bare report upon which to legally sustain his own findings on the exist ence or nonexistence of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence of nonexistence of probable cause is lodge in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest. Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of the accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcript of stenographic notes, if any) upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation, as the Respondent Court did in this case. Al though the prosecutor enjoys the legal presumption of regularity in the performance of his duties and functions which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. xxx xxx xxx Verily, a judge cannot be compelled to issue a warrant of arrest if he or she deems that there is no probable cause for doing so. Corollary to this principle, the judge should not override the public prosecutors determination of probable cause to hold an accused for trial, on the ground that the evidence presented to substantiate the issuance of an arrest warrant insufficient, as in the present case. Indeed, it would be unfair to expect the prosecution to present all the evidence needed to secure the conviction of the accused upon the filing of the information against the latter. The reason is found in the nature and the objective of a preliminary investigation. Here, the public prosecutors do not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged; they merely determine whether there is sufficient ground to engender a well-founded belief that a crime x x x has been committed and that the respondent is probably guilty thereof, and should be held for trial.xv[15] Evidentiary matters must be presented and heard during the trial.xvi[16] Therefore, if the information is valid on its face, and there is no showing of manifest error, grave abuse of discretion and prejudice on the part of public prosecutor, the trial court should respect such determination. Inapplicability of Allado and Salonga The Court of Appeals anchored its ruling on the pronouncement made in Allado v. Diokno: xxx [I]f, upon the filing of the information in court, the trial judge, after reviewing the information and the documents attached thereto, 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.xvii[17] In Allado, Petitioners Diosdado Jose Allado and Roberto L. Mendoza, practicing lawyers, were accused by the Presidential Anti-Crime Commission (PACC) of kidnapping with murder and ordered by Judge Roberto C. Diokno to be arrested without bail. The petitioners questioned the issuance of the warrants for their arrest, contending that the respondents judge acted with grave abuse of discretion and in excess of his jurisdiction in holding that there was probable cause against them. They contended that the trial court relied merely on the resolution of the investigating panel and its certification that probable cause existed, without personally determining the admissibility and sufficiency of the evidence for such finding and without stating the basis thereof. they maintained that the records of the preliminary investigation, which was the sole basis of the judges ruling, failed to establish probable cause against them that would justify the issuance of the warrants for their arrest. The Court declared that Judge Diokno had indeed committed grave abuse of discretion in issuing the arrest warrants. Contrary to the constitutional mandate and establish jurisprudence, he merely relied on the certification of the prosecutors as to the existence of probable cause, instead of personally examining the evidence, the complainant and his witnesses. For otherwise, the Court said, he would have found out that the evidence thus far presented was utterly insufficient to warrant the arrest of the petitioners.xviii[18] In categorically stating that the evidence so far presented did not meet the standard of probable cause and subsequently granting the petition, the Court noted the following circumstances: first, the corpus delicti was not established, and there was serious doubt as to the alleged victims death; second, the extrajudicial statement of the principal witness, who had priorly confessed his participation in the crime, was full of material inconsistencies; and third, the PACC operatives who investigated the case never implicated the petitioners. Citing Salonga v. Cruz-Pao, the Court of Appeals pointed out that when there was no prima facie case against a person sought to be charged with a crime, the judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible e vidence might later turn out during trial, for this would be a flagrant violation of a basic right which the courts are created to uphold.xix[19] In the aforecited case, Petitioner Jovito R. Salonga sought to bar the filing of an Information for violation of the Revised Anti-Subversion Act, which Judge Ernani Cruz-Pano had ordered to be filed against him. In sustaining the petitioner, the Court held that the evidence upon which the Information was based was not sufficient to charge him for a violation of the Revised Anti-Subversion Act.

In all, the Court decreed in both cases that there was no basis in law and in fact for the judicial and executive determination of probable cause. The Court also held that the government, while vested with the right and the duty to protect itself and its people against transgressors of the law, must perform the same in a manner that would not infringe the perceived violators rights as guaranteed by the constitution. However, the present case is not at all fours with Allado and Salonga. First, Elsa Gumban, the principal eyewitness to the killing of Rosalinda Dy, was not a participant or conspirator in the commission of said crime. In Allado and Salonga, however, the main witness were the confessed perpetrators of the crimes, whose testimonies the Court deemed tainted. xx[20] Second, in the case at bar the private respondent was accorded due process, and no precipitate haste or bias during the investigation of the case can be imputed to the public prosecutor. On the other hand, the Court noted in Allado the "undue haste in the filing of the Information and the inordinate interest of the government in pursuing the case;xxi[21] and in Salonga, xxx the failure of the prosecution to show that the petitioner was probably guilty of conspiring to commit the crime, the initial disregard of petitioners constitutional rights [and] the massive and damaging publicity made against him.xxii[22] In other words, while the respective sets of evidence before the prosecutors in Allado and Salonga were utterly insufficient to support a finding of probable cause, the same cannot be said of the present case. We stress that Allado and Salonga constitute exceptions to the general rule and may be invoke only if similar circumstances are clearly shown to exist. But as the foregoing comparisons show, such similarities are absent in the instant case. Hence, the rulings in the two aforementioned cases cannot apply to it. Motion Without Requisite Notice One more thing. Petitioners aver that Private Respondents Cerbo did not give them a copy of the motion to Quash the Warrant of Arrest, which had been issued against him, or a notice of the schedule hearing. Thus, they contend, Judge Valles should not have entertained such motion. It is settled that every written motion in a trial court must be set for hearing by the applicant and served with the notice of hearing thereof, in such a manner as to ensure its receipt by the other party. The provisions on this matter in Sections 4 and 5, Rule 15 of the Rules of Court,xxiii[23] are categorical and mandatory in character.xxiv[24] Under Section 6 of the said rule, no motion shall be acted upon by the court without proof of service thereof. The rationale for this is simple: unless the movants set the time and the place of hearing, the court will be unable to determine whether the adverse parties agree or object to the motions, since the rules themselves do not fix any period within which they may file their replies or oppositions.xxv[25] The motion to quash the warrant of arrest in the present case being pro forma, inasmusch as the requisite copy and notice were not duly served upon the adverse party, the trial court had no authority to act on it. Epilogue In granting this petition, we are not prejudging the criminal case or guilt or innocence of Private Respondent Billy Cerbo. We are simply saying that, as a general rule, if the information is valid on its face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of the public prosecutor, courts should not dismiss it for want of evidence, because evidentiary matters should be presented and heard during the trial. The functions and duties of both the trial court and the public prosecutor in the proper scheme of things in our criminal justice system should be clearly understood. The rights of the people from what could sometimes be an oppressive exercise of government prosecutorial powers do need to be protected when circumstance so require. But just as we recognize this need, we also acknowledge that the State must likewise be accorded due process. Thus, when there is no showing of nefarious irregularity or manifest error in the performance of a public prosecutors duti es, courts ought to refrain from interfering with such lawfully and judicially mandated duties. In any case, if there was palpable error or grave abuse of discretion in the public prosecutors finding of probable cause, the accused can appeal such finding to the justice secretaryxxvi[26] and move for the deferment or suspension of the proceedings until such appeal is resolved. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals is hereby REVERSED and SET ASIDE. The case is REMANDED to the Regional Trial Court of Nabunturan, Davao, which is ordered to reinstate the amended Information against Private Respondent Billy Cerbo and to proceed with judicious speed in hearing the case. No costs. SO ORDERED. Romero (Chairman), Vitug, Purisima, and Gonzaga-Reyes, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 82870 December 14, 1989 DR. NEMESIO E. PRUDENTE, petitioner, vs. THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC Manila, Branch 33 and PEOPLE OF THE PHILIPPINES, respondents. Francisco SB Acejas III, Oscar S. Atencio, Rodolfo M. Capocyan, Ernesto P. Fernandez, Romulo B. Macalintal, Rodrigo H. Melchor, Rudegelio D. Tacorda Virgilio L. Valle and Luciano D. Valencia for petitioner. PADILLA, J.: This is a petition for certiorari to annul and set aside the order of respondent Judge dated 9 March 1988 which denied the petitioner's motion to quash Search Warrant No. 87-14, as well as his order dated 20 April 1988 denying petitioner's motion for reconsideration of the earlier order. It appears that on 31 October 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence Special Action Division (ISAD) of the Western Police District (WPD) filed with the Regional Trial Court (RTC) of Manila, Branch 33, presided over by respondent Judge Abelardo Dayrit, now Associate Justice of the Court of Appeals. an application 1 for the issuance of a search warrant, docketed therein as SEARCH WARRANT NO.

87-14, for VIOLATION OF PD NO. 1866 (Illegal Possession of Firearms, etc.) entitled "People of the Philippines, Plaintiff, versus Nemesis E. Prudente, Defendant." In his application for search warrant, P/Major Alladin Dimagmaliw alleged, among others, as follows: 1. That he has been informed and has good and sufficient reasons to believe that NEMESIO PRUDENTE who may be found at the Polytechnic University of the Philippines, Anonas St. Sta. Mesa, Sampaloc, Manila, has in his control or possession firearms, explosives handgrenades and ammunition which are illegally possessed or intended to be used as the means of committing an offense which the said NEMESIO PRUDENTE is keeping and concealing at the following premises of the Polytechnic University of the Philippines, to wit: a. Offices of the Department of Military Science and Tactics at the ground floor and other rooms at the ground floor; b. Office of the President, Dr. Nemesio Prudente at PUP, Second Floor and other rooms at the second floor; 2. That the undersigned has verified the report and found it to be a fact, and therefore, believes that a Search Warrant should be issued to enable the undersigned or any agent of the law to take possession and bring to this Honorable Court the following described properties: a. M 16 Armalites with ammunitions; b. .38 and .45 Caliber handguns and pistols; c. explosives and handgrenades; and, d. assorted weapons with ammunitions. In support of the application for issuance of search warrant, P/Lt. Florenio C. Angeles, OIC of the Intelligence Section of (ISAD) executed a "Deposition of Witness" dated 31 October 1987, subscribed and sworn to before respondent Judge. In his deposition, P/Lt. Florenio Angeles declared, inter alia, as follows: Q: Do you know P/Major Alladin Dimagmaliw, the applicant for a Search Warrant? A: Yes, sir, he is the Chief, Intelligence and Special Action Division, Western Police District. Q: Do you know the premises of Polytechnic University of the Philippines at Anonas St., Sta. Mesa, Sampaloc, Manila A: Yes, sir, the said place has been the subject of our surveillance and observation during the past few days. Q: Do you have personal knowledge that in the said premises is kept the following properties subject of the offense of violation of PD No. 1866 or intended to be used as a means of committing an offense: a. M 16 Armalites with ammunitions; b. .38 and 45 Caliber handguns and pistols; c. explosives and handgrenades; and d. Assorted weapons with ammunitions? A: Yes sir. Q: Do you know who is or who are the person or persons who has or have control of the abovedescribed premises? A: Yes sir, it is Dr. Nemesio Prudente, President of the Polytechnic University of the Philippines. Q: How do you know that said property is subject of the offense of violation of Pres. Decree No. 1866 or intended to be used as the means of committing an offense? A: Sir, as a result of our continuous surveillance conducted for several days, we gathered information from verified sources that the holder of said firearms and explosives as well as ammunitions aren't licensed to possess said firearms and ammunition. Further, the premises is a school and the holders of these firearms are not students who were not supposed to possess firearms, explosives and ammunition. On the same day, 31 October 1987, respondent Judge issued Search Warrant No. 87-14, 3 the pertinent portions of which read as follows: It appearing to the satisfaction of the undersigned, after examining under oath applicant ALLADIN M. DIMAGMALIW and his witness FLORENIO C. ANGELES that there are good and sufficient reasons to believe (probable cause) that NEMESIO PRUDENTE has in his control in the premises of Polytechnic University of the Philippines, Anonas St., Sta. Mesa, Sampaloc, Manila, properties which are subject of the above offense or intended to be used as the means of committing the said offense. You are hereby commanded to make an immediate search at any time in the day or night of the premises of Polytechnic University of the Philippines, more particularly (a) offices of the Department of Military Science and Tactics at the ground floor and other rooms at the ground floor; (b) office of the President, Dr. Nemesio Prudente at PUP, Second Floor and other rooms at the second floor, and forthwith seize and take possession of the following personal properties, to wit: a. M 16 Armalites with ammunition; b. .38 and .45 Caliber handguns and pistols; c. explosives and hand grenades; and d. assorted weapons with ammunitions. and bring the above described properties to the undersigned to be dealt with as the law directs. On 1 November 1987, a Sunday and All Saints Day, the search warrant was enforced by some 200 WPD operatives led by P/Col. Edgar Dula Torre, Deputy Superintendent, WPD, and P/Major Romeo Maganto, Precinct 8 Commander.

In his affidavit, 4 dated 2 November 1987, Ricardo Abando y Yusay, a member of the searching team, alleged that he found in the drawer of a cabinet inside the wash room of Dr. Prudente's office a bulging brown envelope with three (3) live fragmentation hand grenades separately wrapped with old newspapers, classified by P/Sgt. J.L. Cruz as follows (a) one (1) pc.M33 Fragmentation hand grenade (live); (b) one (11) pc.M26 Fragmentation hand grenade (live); and (c) one (1) pc.PRB423 Fragmentation hand grenade (live). On 6 November 1987, petitioner moved to quash the search warrant. He claimed that (1) the complainant's lone witness, Lt. Florenio C. Angeles, had no personal knowledge of the facts which formed the basis for the issuance of the search warrant; (2) the examination of the said witness was not in the form of searching questions and answers; (3) the search warrant was a general warrant, for the reason that it did not particularly describe the place to be searched and that it failed to charge one specific offense; and (4) the search warrant was issued in violation of Circular No. 19 of the Supreme Court in that the complainant failed to allege under oath that the issuance of the search warrant on a Saturday was urgent. 5 The applicant, P/Major Alladin Dimagmaliw thru the Chief, Inspectorate and Legal Affairs Division, WPD, opposed the motion. 6 After petitioner had filed his reply 7 to the opposition, he filed a supplemental motion to quash. 8 Thereafter, on 9 March 1988, respondent Judge issued an order, 9denying the petitioner's motion and supplemental motion to quash. Petitioner's motion for reconsideration 10 was likewise denied in the order 11 dated 20 April 1988. Hence, the present recourse, petitioner alleging that respondent Judge has decided a question of substance in a manner not in accord with law or applicable decisions of the Supreme Court, or that the respondent Judge gravely abused his discretion tantamount to excess of jurisdiction, in issuing the disputed orders. For a valid search warrant to issue, there must be probable cause, which is 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. 12 The probable cause must be in connection with one specific offense 13 and 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 any witness he may produce, on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. 14 The "probable cause" for a valid search warrant, has been defined "as such facts and circumstances which would lead a reasonably discreet arid 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." 15 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. 16 Petitioner assails the validity of Search Warrant No. 87-14 on the ground that it was issued on the basis of facts and circumstances which were not within the personal knowledge of the applicant and his witness but based on hearsay evidence. In his application for search warrant, P/Major Alladin Dimagmaliw stated that "he has been informed" that Nemesio Prudente "has in his control and possession" the firearms and explosives described therein, and that he "has verified the report and found it to be a fact." On the other hand, in his supporting deposition, P/Lt. Florenio C. Angeles declared that, as a result of their continuous surveillance for several days, they "gathered informations from verified sources" that the holders of the said fire arms and explosives are not licensed to possess them. In other words, the applicant and his witness had no personal knowledge of the facts and circumstances which became the basis for issuing the questioned search warrant, but acquired knowledge thereof only through information from other sources or persons. While it is true that in his application for search warrant, applicant P/Major Dimagmaliw stated that he verified the information he had earlier received that petitioner had in his possession and custody the t there is nothing in the record to show or indicate how and when said applicant verified the earlier information acquired by him as to justify his conclusion that he found such information to be a fact. He might have clarified this point if there had been searching questions and answers, but there were none. In fact, the records yield no questions and answers, whether searching or not, vis-a-vis the said applicant. What the records show is the deposition of witness, P/Lt. Angeles, as the only support to P/Major Dimagmaliw's application, and the said deposition is based on hearsay. For, it avers that they (presumably, the police authorities) had conducted continuous surveillance for several days of the suspected premises and, as a result thereof, they "gathered information from verified sources" that the holders of the subject firearms and explosives are not licensed to possess them. In Alvarez vs. Court of First Instance, 17 this Court laid the following test in determining whether the allegations in an application for search warrant or in a supporting deposition, are based on personal knowledge or not The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. The oath required must refer to the truth of the facts within the personal knowledge of the applicant for search warrant, and/or his witnesses, not of the facts merely reported by a person whom one considers to be reliable. Tested by the above standard, the allegations of the witness, P/Lt. Angeles, in his deposition, do not come up to the level of facts of his personal knowledge so much so that he cannot be held liable for perjury for such allegations in causing the issuance of the questioned search warrant. In the same Alvarez case, 18 the applicant stated that his purpose for applying for a search warrant was that: "It had been reported to me by a person whom I consider to be reliable that there are being kept in said premises books, documents, receipts, lists, chits and other papers used by him in connection with his activities as a money lender, challenging usurious rate of interests, in violation of law." The Court held that this was insufficient for the purpose of issuing a search warrant. In People vs. Sy Juco, 19 where the affidavit contained an allegation that there had been a report to the affiant by a person whom lie considered reliable that in said premises were "fraudulent books, correspondence and records," this was likewise held as not sufficient for the purpose of issuing a search warrant. Evidently, the allegations contained in the application of P/ Major Alladin Dimagmaliw and the declaration of P/Lt. Florenio C. Angeles in his deposition were insufficient basis for the issuance of a valid search warrant. As held in the Alvarez case:

The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. Besides, respondent Judge did not take the deposition of the applicant as required by the Rules of Court. As held in Roan v. Gonzales, 20 "(m)ere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record." Moreover, a perusal of the deposition of P/Lt. Florenio Angeles shows that it was too brief and short. Respondent Judge did not examine him "in the form of searching questions and answers." On the contrary, the questions asked were leading as they called for a simple "yes" or "no" answer. As held in Quintero vs. NBI," 21 the questions propounded by respondent Executive Judge to the applicant's witness are not sufficiently searching to establish probable cause. Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant." Manifestly, in the case at bar, the evidence failed to show the existence of probable cause to justify the issuance of the search warrant. The Court also notes post facto that the search in question yielded, no armalites, handguns, pistols, assorted weapons or ammunitions as stated in the application for search warrant, the supporting deposition, and the search warrant the supporting hand grenades were itself Only three (3) live fragmentation found in the searched premises of the PUP, according to the affidavit of an alleged member of the searching party. The Court avails of this decision to reiterate the strict requirements for determination of "probable cause" in the valid issuance of a search warrant, as enunciated in earlier cases. True, these requirements are stringent but the purpose is to assure that the constitutional right of the individual against unreasonable search and seizure shall remain both meaningful and effective. Petitioner also assails the validity of the search warrant on the ground that it failed to particularly describe the place to be searched, contending that there were several rooms at the ground floor and the second floor of the PUP. The rule is, that a description of a place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and Identify the place intended . 22 In the case at bar, the application for search warrant and the search warrant itself described the place to be searched as the premises of the Polytechnic University of the Philippines, located at Anonas St., Sta. Mesa, Sampaloc, Manila more particularly, the offices of the Department of Military Science and Tactics at the ground floor, and the Office of the President, Dr. Nemesio Prudente, at PUP, Second Floor and other rooms at the second floor. The designation of the places to be searched sufficiently complied with the constitutional injunction that a search warrant must particularly describe the place to be searched, even if there were several rooms at the ground floor and second floor of the PUP. Petitioner next attacks the validity of the questioned warrant, on the ground that it was issued in violation of the rule that a search warrant can be issued only in connection with one specific offense. The search warrant issued by respondent judge, according to petitioner, was issued without any reference to any particular provision of PD No. 1866 that was violated when allegedly P.D. No. 1866 punishes several offenses. In Stonehill vs. Diokno, 23 Where the warrants involved were issued upon applications stating that the natural and juridical persons therein named had committed a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue Code and Revised Penal Code," the Court held that no specific offense had been alleged in the applications for a search warrant, and that it would be a legal hearsay of the highest order to convict anybody of a "Violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue Code and Revised Penal Code" without reference to any determinate provision of said laws and codes. In the present case, however, the application for search warrant was captioned: "For Violation of PD No. 1866 (Illegal Possession of Firearms, etc.) While the said decree punishes several offenses, the alleged violation in this case was, qualified by the phrase "illegal possession of firearms, etc." As explained by respondent Judge, the term "etc." referred to ammunitions and explosives. In other words, the search warrant was issued for the specific offense of illegal possession of firearms and explosives. Hence, the failure of the search warrant to mention the particular provision of PD No. 1-866 that was violated is not of such a gravity as to call for its invalidation on this score. Besides, while illegal possession of firearms is penalized under Section 1 of PD No. 1866 and illegal possession of explosives is penalized under Section 3 thereof, it cannot be overlooked that said decree is a codification of the various laws on illegal possession of firearms, ammunitions and explosives; such illegal possession of items destructive of life and property are related offenses or belong to the same species, as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No. 1866. As observed by respondent Judge: 24 The grammatical syntax of the phraseology comparative with the title of PD 1866 can only mean that illegal possession of firearms, ammunitions and explosives, have been codified under Section 1 of said Presidential Decree so much so that the second and third are forthrightly species of illegal possession of firearms under Section (1) thereof It has long been a practice in the investigative and prosecution arm of the government, to designate the crime of illegal possession of firearms, ammunitions and explosives as 'illegal possession of firearms, etc.' The Constitution as well as the Rules of Criminal Procedure does not recognize the issuance of one search warrant for illegal possession of firearms, one warrant for illegal possession of ammunitions, and another for illegal possession of explosives. Neither is the filing of three different informations for each of the above offenses sanctioned by the Rules of Court. The usual practice adopted by the courts is to file a single information for illegal possession of firearms and ammunitions. This practice is considered to be in accordance with Section 13, Rule 110 of the 1985 Rules on Criminal Procedure which provides that: 'A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a single punishment for various offenses. Describably, the servers did not search for articles other than firearms, ammunitions and explosives. The issuance of Search Warrant No. 87-14 is deemed profoundly consistent with said rule and is therefore valid and enforceable. (Emphasis supplied) Finally, in connection with the petitioner's contention that the failure of the applicant to state, under oath, the urgent need for the issuance of the search warrant, his application having been filed on a Saturday, rendered the questioned warrant invalid for being violative of this Court's Circular No. 19, dated 14 August 1987, which reads:

3. Applications filed after office hours, during Saturdays, Sundays and holidays shall likewise be taken cognizance of and acted upon by any judge of the court having jurisdiction of the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, that the issuance is urgent. it would suffice to state that the above section of the circular merely provides for a guideline, departure from which would not necessarily affect the validity of an otherwise valid search warrant. WHEREFORE, all the foregoing considered, the petition is GRANTED. The questioned orders dated 9 March 1988 and 20 April 1988 as well as Search Warrant No. 87-14 are hereby ANNULLED and SET ASIDE. The three (3) live fragmentation hand grenades which, according to Ricardo Y. Abando, a member of the searching team, were seized in the washroom of petitioner's office at the PUP, are ordered delivered to the Chief, Philippine Constabulary for proper disposition. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 121234 August 23, 1995 HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor. G.R. No. 121245 August 23, 1995 MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. G.R. No. 121297 August 23, 1995 ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. PUNO, J.: Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4 her mother Estrellita Nicolas-Vizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila. During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11 Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following:

(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992; (b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation; (e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies; (h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged. The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production. Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-petitioner Lejano was with him. On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their co-respondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us. In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused. We find the petitions bereft of merit. I Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded 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." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus: Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner:

(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant. (c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof . . ." The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 22 Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man. 24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance. Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26 xxx xxx xxx To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro: On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29, 1991. Second Affidavit: "I met her in a party sometime in February, 1991." On whether Alfaro saw the dead bodies First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ." Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela." On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape. Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes." On how Webb, Lejano, and Ventura entered the Vizconde house First Affidavit: "by jumping over the fence, which was only a little more than a meter high." Second Affidavit: They "entered the gate which was already open." On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen." In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27 xxx xxx xxx

As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the coconspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084). Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699). Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. In Angelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness. On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses." In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements, among others. This is untenable. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima facie case that respondents conspired in the perpetration of the imputed offense. We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29 xxx xxx xxx According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room. On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family. On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb

because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date. Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall. At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako." Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of Paraaque, arrived and said, " Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident. As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car. On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991. Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the last thing she remembered regarding this case. The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled: 30 xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of

alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases). Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]). Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi. xxx xxx xxx On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise. Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary. II We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges. The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional

Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide: xxx xxx xxx Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but 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 witnesses he may produce, and particularly describing the place to be searched and the things to be seized. Sec. 4. 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 any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33 thus: xxx xxx xxx The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other 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 documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; 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 conclusions 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. Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached to the records of the case. 36 Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or nonexistence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. III

Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation. We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.: Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letterrequests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F." It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel. Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them. Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.: Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied) Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides: xxx xxx xxx

Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: (a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its equivalent under special laws; (b) there is absolute necessity for his testimony; (c) there is no other direct evidence available for the proper prosecution of the offense committed; (d) his testimony can be substantially corroborated on its material points; (e) he does not appear to be most guilty; and (f) he has not at anytime been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised Rules of Court. Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or Information, thus: xxx xxx xxx Sec. 12. Effect of Admission of a State Witness into the Program. The certification of admission into the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included therein, to petition the court for his discharge in order that he can be utilized as a State Witness. The court shall order the discharge and exclusion of the said accused from the information. Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the offense or offenses in which his testimony will be given or used and all the rights and benefits provided under Section 8 hereof. The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute ". . . an intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section 9, Rule 119 38 which gives the court the prerogative to approve the discharge of an accused to be a state witness. Petitioner's argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed. Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43 This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.

Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan 47 which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI. Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI. Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow. In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime. Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held: xxx xxx xxx (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity. It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done and that is the only way for the judiciary to get an acquittal from the bar of public opinion. IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners. SO ORDERED. Regalado, J., concurs. Mendoza, J., concurs in the result. Narvasa, C.J., is on leave. Separate Opinion FRANCISCO, J., concurring: The thrust of petitioners' arguments involve the validity and exercise of the prosecutory powers of the State. Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a case to warrant the Court's interference. Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice. Petitioners characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's defense or accusation as well as the admissibility or inadmissibility of

testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial. With respect to petitioners' contention that public respondent judge failed to personally examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or arbitrary. Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of Court enumerate an array of rights upon which an accused can seek protection and solace. To mention a few: he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination, the right to remain silent, to confront and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel preferably of his own choice. These rights are afforded to the accused and not to the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial. I vote to dismiss the petitions. Mendoza, J., concurs. Separate Opinion FRANCISCO, J., concurring: The thrust of petitioners' arguments involve the validity and exercise of the prosecutory powers of the State. Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a case to warrant the Court's interference. Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice. Petitioners characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's defense or accusation as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial. With respect to petitioners' contention that public respondent judge failed to personally examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or arbitrary. Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of Court enumerate an array of rights upon which an accused can seek protection and solace. To mention a few: he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination, the right to remain silent, to confront and cross-examine the witnesses against him, to have a speedy, impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel preferably of his own choice. These rights are afforded to the accused and not to the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial. I vote to dismiss the petitions. Mendoza, J., concurs.

EN BANC [G.R. No. L-8657. July 31, 1956.] ERASMO ALVAREZ and MARCIANO PARANADA, Petitioners, vs. HONORABLE LUCAS LACSON, Judge of the Court of First Instance of Zambales, CASIANO A. LADIORAY and SERAPIO ARIMBUANGA, Respondents. DECISION ENDENCIA, J.: On November 15, 1950, the justice of the peace court of San Marcelino, Zambales, rendered a decision in civil case No. 10 for forcible entry and detainer, entitled Casiano Ladioray and Serapio Arimbuanga, Plaintiffs, vs. Esteban Alegre, Blas Javier and Mariano Rivera, Defendants, ordering the latter to vacate the land in question and restore its possession to the Plaintiffs, to give to the Plaintiffs the annual produce of 50 cavanes of palay or its equivalent value in the amount of P575 and to pay P250 by way of damages. The Defendants appealed from that decision and, to stay its immediate execution, they filed on April 4, 1951 a supersedeas bond undertaken by the herein Petitioners, conditioned to enter the action in the Court of First Instance of Zambales, and to pay the damages and costs down to the time of the final judgment in the action. Thereafter, the case was transmitted to the Court of First Instance of Zambales where it was docketed as Civil Case No. 1388. While the case was pending trial in the latter court, the Defendants failed to give to the Plaintiffs the 50 cavanes of palay or its value, corresponding to the crop of 1951-1952, hence the Plaintiffs moved for the immediate execution of the aforesaid decision. This motion was granted, but it was subject to the right of the Defendants to file another supersedeas bond which was posted on August 29, 1951 by the herein Petitioners. Upon opposition by the Plaintiffs, this second bond was disapproved by the Court in its order dated September 25, 1951, but at the same time it ordered the Defendants to execute another bond within the period of 15 days, otherwise the judgment of the Justice of the Peace Court of San Marcelino will be executed. Accordingly, another bond was posted by Messrs. Pablo Recaido and Agripino Ferrer, not by the herein Petitioners. While the case was in this condition, upon petition of the Plaintiffs, the Court issued on June 3, 1954 an order of execution against the herein Petitioners, who, upon receipt thereof, filed on July 19, 1954 a motion to set it aside and to stay the sale of their properties, claiming that it was erroneously issued against them in that they were not the bondsmen of the Defendants in the Court of First Instance but Messrs. Pablo Recaido and Agripino Ferrer. On August 26, 1954, the motion was denied by the court on the ground that the bond which is the subject of the writ of execution is the supersedeas bond filed by the herein Petitioner on April 4, 1951, and not that filed on August 29, 1951, and that the writ of execution was issued to enforce the judgment of the justice of the peace court of November 15, 1950. Thereupon, on September 2, 1954 the Petitioners filed another motion to set aside the writ of execution, alleging that the supersedeas bond posted by the herein Petitioners on April 4, 1951 cannot be executed for the case was still pending hearing in the Court of First Instance and there was no judgment on which to base the writ of execution. On September 24, 1954, His Honor, the Respondent Judge Lucas Lacson, entered the following order:chanroblesvirtuallawlibrary Considering that the decision of the justice of the peace court of San Marcelino, Zambales, explicitly provides for payment to Plaintiffs the annual produce of fifty cavans of palay or pay its equivalent in the amount of P575 which provision the herein Defendants have failed to comply; chan roblesvirtualawlibrarythat it appears from the sheriffs return that the herein Defendants are all insolvent (p. 245, rec.); chan roblesvirtualawlibrarythat at any rate the obligation undertaken by the bondsmen Erasmo Alvarez and Marciano Paranada is joint and solidary with and not merely subsidiary to that of their principal the herein Defendants; chan roblesvirtualawlibraryand that section 8 Rule 72 of the Rules of Court does not limit the execution to the possession of the property in question but it also refers to the execution of the whole judgment rendered by the Justice of the Peace Court or the Municipal Court which may include not only possession but also payment of rents or damages (Villaroman vs. Abaya et al., G.R. No. 4833, promulgated March 21, 1952), the court finds the Motion for Reconsideration and second Motion for Dismissal of Writ of Execution filed on September 2, 1954 by Atty. Gregorio Dolojan, counsel for the bondsmen-movants Erasmo Alvarez and Marciano Paranada, to be without merit and hereby denies said motions. As could be gathered from the foregoing, the main question involved in this case is whether the supersedeas bond of April 4, 1951 posted by the herein Petitioners to stay the execution of the judgment of the Justice of the Peace Court of San Marcelino, Zambales, can be executed before the case is tried and decided by the Court of First Instance of Zambales. Under section 8 of Rule 72 of the Rules of Court, during the pendency of the appeal, upon failure of the Defendant to pay to the Plaintiff or to deposit with the Court of First Instance, from time to time, the rent due as found by the judgment of the justice of the peace or municipal court on or before the 10th day of each calendar month, the Plaintiff has a perfect right to secure a writ of execution, but that execution should not extend to the sureties of the supersedeas bond which, as we held in several cases, only answers for the rents or damages down to the time of perfection of the appeal taken from the final judgment rendered in the justice of the peace or municipal court and not for the future rents or damages that may accrue during the pendency of the appeal, which are guaranteed by periodical deposits or payments to be made by Defendant-Appellants. (Aylon vs. Jugo, 78 Phil., 818; chan roblesvirtualawlibraryUniversity of Sto. Tomas vs. Ocampo, 85 Phil., 144 and Hilado vs. Tan, G.R. No. L-1964, August 23, 1950). Accordingly, we find that the disputed order of the herein

Respondent judge, dated September 24, 1954, is completely erroneous in so far as it ordered the execution of the supersedeas bond posted on April 4, 1951 by the herein Petitioners in the justice of the peace court of San Marcelino because that bond was conditioned to enter the action in the Court of First Instance of Zambales and to pay damages and costs down to the time of the final judgment that the said court may render in the case and, up to the filing of this petition before us, the aforemention ed civil case No. 1388 was still pending hearing in that court. Moreover, it appears that to stay the execution of the judgment of the justice of the peace court of San Marcelino during the pendency of the case in the Court of First Instance of Zambales, the Defendants had filed another bond executed to the Plaintiffs by Pablo Recaido and Agripino Ferrer and, if at all, this bond should be the one ordered executed and not the aforesaid supersedeas bond posted by the herein Petitioners. Accordingly, we hold that in the case at bar, while the Respondent judge has correctly issued the writ of execution of the above- mentioned judgment of the justice of the peace court of San Marcelino with regard to the delivery to the Plaintiffs of the possession of the land in question and to collect from the Defendants the damages adjudicated in their favor, His Honor, however, committed error in ordering the execution of the supersedeas bond of April 4, 1951 because the case was still pending in his court and no decision has as yet been rendered therein against the Defendants. Wherefore, the disputed order of April 4, 1951 as well as the aforesaid writ of execution dated June 3, 1954 are hereby set aside and the Respondent judge enjoined from enforcing them. Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A. Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., and Felix, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC DECISION November 29, 1968 G.R. No. L-27511 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. Zaldivar, J.: SIMON LUNA. SIMON LUNA, vs. HON. LORENZO M. PLAZA, ET AL. Republic of the PhilippinesSUPREME COURTManila EN BANC 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 petitioner-appellant 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 T-Sgt. 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 writi ng, 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 petitioners 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 courts findings as to the credibility of w itnesses 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 t he 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 TSgt. 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 be en 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 commi tted 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. Petitioners further contention that the issuance of the warrant of arrest was a violation of the constitution and of procedu ral 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. Petitioners 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.8 Preliminary 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 petitioners second assignment of error, that the trial co urt 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. Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro, Fernando and Capistrano, JJ., concur. Reyes, J.B.L., J., concurs in the result. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION A.M. No. 71-MJ November 29, 1974 SOLEDAD AVILLAR DE MULATA, ANTONIO ESTEBAN, and BUENAVENTURA BAYO, complainants, vs. JUDGE ELIAS C. IRIZARI, respondent. RESOLUTION ANTONIO, J.:p These are two administrative complaints filed by Soledad Avillar and Antonio Esteban (Administrative Case No. L-2) and Buenaventura Bayo (Administrative Case No. L-3), respectively, against respondent Municipal Judge Elias C. Irizari of Hinatuan, Surigao del Sur. Both cases advert to respondent's conduct of the preliminary examination in two criminal cases filed with his court. In Administrative Case No. L-2, respondent is charged with "grave abuse of discretion, favoritism and bias" for having conducted the preliminary examination in Criminal Case No. 1074 without giving the accused therein an opportunity to be heard because they were not granted the occasion to cross-examine the complainant and her witnesses before issuing the warrant for their arrest; that they were arrested and detained in jail for fifteen (15) days without knowing why they were arrested as neither of them were shown any warrant of arrest; and that they were "treated like criminals of high degree" because they were first required to post bail for P20,000.00, "although later on thru the intervention of a brother of theirs in the Iglesia ni Cristo," they were bailed out for P10,000.00. According to District Judge Otilio G. Abayan of the Court of First Instance, Branch II, Lianga, Surigao del Sur, who was designated to investigate these administrative cases, Criminal Case No. 1074, which involved a complaint for "Assault Upon a Person in Authority with Physical Injuries", was filed by the Chief of Police of Hinatuan on July 19, 1969 against Soledad Avillar and Antonio Esteban. The Investigator found that respondent municipal judge issued the order for the arrest of the accused "after conducting a preliminary examination consisting in the adoption of the affidavits of the prosecution witnesses and the propounding of additional questions to them." The requirement that the investigating judge must examine the witnesses personally, which examination shall be under oath and reduced to writing in the form of

searching questions and answers, 1 is fulfilled where the municipal judge 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. 2 Under Section 5, Rule 112, of the Revised Rules of Court, the accused is not entitled as a matter of right to be present during the preliminary examination or to cross-examine the witnesses presented against him before his arrest. 3 In Criminal Case No. 1074, complainants not only failed to question in the aforesaid case the validity of the preliminary examination, but also expressly waived their right to the second stage of the preliminary investigation. This case was subsequently elevated to the Court of First Instance and docketed as Criminal Case No. L-125. On motion of the Provincial Fiscal, the case against Antonio Esteban was dismissed, while Soledad Avillar was found, after trial, guilty of the crime of Slight Physical Injuries. Contrary to the claim of the complainants that they were first required to post bail of P20,000.00 each, the amount of the bail fixed for their provisional liberty as per Order of respondent dated June 19, 1969 in Criminal Case No. 1074 (Exhibit "VII-A") is P5,000.00. We agree, therefore, with the recommendation of the Investigating Judge that on the basis of these facts, this charge should be dismissed. In Administrative Case No. L-3, respondent is charged with having arbitrarily dismiss a "Grave Coercion" case filed by Buenaventura Bayo, a member of the Iglesia ni Cristo, against Barrio Captain Monica Peas and fourteen (14) others. Complainant asserts that he was notified only two days before the preliminary examination set on July 22, 1969; that after he was asked a few questions, he was informed that the case was dismissed; that he was deprived of his right to be represented by his lawyer; and that the act of respondent in dismissing this case while ordering the arrest of the accused in Criminal Case No. 1074 (subject of Administrative Case No. L-2) shows his bias and prejudice against members of the Iglesia ni Cristo. It was shown, however, that although the complaint was filed on July 3, 1969, the preliminary examination was set for July 21, 1969, but it was postponed to the following day. Therefore, complainant had sufficient time and opportunity to consult his lawyers if he so desired. The record also disclose that the dismissal of the case was made after respondent had propounded searching questions to complainant Buenaventura Bayo (Exhibit "26") and his witnesses (Exhibits "19", "20", "21" and "22"). This dismissal was predicated upon respondent's finding that the accused therein had acted without malice or criminal intent. This conclusion is borne out by the admission of the complaining witness, Buenaventura Bayo, a member of the Iglesia ni Cristo, during the preliminary examination to the effect that he did not bury his dead child at the Roman Catholic Cemetery of Barrio San Juan on the morning of June 14, 1969, because he was told by Monica Peas and Pelegrino Malinao that said cemetery is exclusively for the use of the members of said church. However, the same Monica Peas, with the assistance of Felix Sereno, chartered at their own personal expense a pump boat to bring the cadaver of his daughter to the Poblacion of Hinatuan for burial at the public cemetery on the afternoon of the same day. It was also shown that Atty. Fermin B. Quejada, counsel of the complaining witness, received a copy of this order of dismissal from respondent's court. Said counsel never bothered to file a motion for reconsideration or take any action for the reinstatement of the case. The purpose of the preliminary examination is to determine whether or not there is sufficient reason to issue a warrant of arrest. Section 6 of Rule 112 of the Revised Rules of Court requires that the warrant of arrest shall be issued only when the judge conducting the preliminary examination is satisfied that the offense has in fact been committed and that there is a reasonable ground to believe that the accused committed the same. This is in conformity with the constitutional requirement that "no warrants 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." 4 The question as to whether "probable cause" exists or not, must, therefore, depend upon the judgment and discretion of the judge issuing the warrant. We are not satisfied that in the circumstances attendant to the case, respondent, in dismissing the complaint for "grave coercion", has acted arbitrarily. We do note, however, that respondent, upon accepting the complaint, failed to enter the same in his general docket book, so that the case had no corresponding docket number, before conducting the preliminary examination. The rules specifically require that the municipal judge must keep a docket in which he shall enter all civil and criminal cases or proceedings commenced before him. 5 It is a public record available during office hours for examination by any person, upon his reasonable request, to ascertain the status of any given case pending therein. 6 Respondent is, therefore, admonished to keep a faithful record of all proceedings before him in the dockets required by law to be kept for that purpose. WHEREFORE, respondent is exonerated from the aforementioned charges, with the above admonition. Fernando (Chairman), Barredo, Fernandez and Aquino, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. L-25707&25753-25754 May 14, 1981 ANTONIO MARINAS, ANTONIO MONTANO and GREGORIO RUPISAN petitioners, vs. HON. ANDRES S. SIOCHI, Presiding Judge of the Municipal Court of Pasig, Rizal, VICTORIA LASIN VDA. DE ATIENZA and ROSARIO L. ATIENZA, respondents. MELENCIO-HERRERA, J.:1wph1.t Before us is a Petition for certiorari with Preliminary injunction seeking to annul the proceedings held in Criminal Cases Nos. 12943 and 12945 for Theft, and Criminal Case No. 12944 for Grave Coercion, before the Municipal Court of Pasig, Rizal; to annul the warrants of arrest issued in the said cases; and to declare as unconstitutional and void Section 5, Rule l l2 of the Rules of Court in so far as it denies the accused the right of notice and opportunity to be heard in the preliminary examination. The present controversy arose out of the issuance by the Municipal Court of Pasig, Rizal, of a Writ of Execution in Civil Case No. 938 for Ejectment, entitled Jose C. Zulueta vs. Gregorio Atienza. On December 13, 1965, petitioner Antonio Marinas, Deputy Sheriff of Rizal, with his co-petitioners Antonio Montano and Gregorio Rupisan enforced said Writ of Execution by levying upon the personal properties and chattels of

private respondents Victoria Lasin Vda. de Atienza and] Rosario L. Atienza, and taking out said properties from their (respondents') rented house at #23 General Malvar St., Antonio Village, Pasig, Rizal. Respondents were also ejected from said house. On the same date, respondent Victoria Lasin Vda, de Atienza reported to the police authorities of Pasig that her jewelry worth P590.00 had been taken by petitioners without issuing any receipt therefor, 1 and in connection therewith, she executed a written Statement which was sworn to before Special Counsel Lucila P. Alcoba. 2 On January 28, 1966, respondents re-entered the house they had been ejected from after securing a Court Order for that purpose. Respondent Rosario L. Atienza then discovered that several pieces of her jewelry and other personal items, with a total value of P1,018.00, were missing. She reported the loss to the authorities on February 2, 1966, and her Statement was taken. She subscribed and swore to the same before respondent Municipal Judge Andres S. Siochi. 3 On February 3, 1966, respondents, armed with a Court Order authorizing them to enter the premises of the said house, did so again to get their remaining unlevied properties. They claimed, however, that on the said date petitioners and their companions forcibly compelled them to deliver the unlevied personal properties found therein, hauled said articles into a truck and left. Private respondents reported the incident to the police authorities at Pasig. 4 Victoria Lasin executed a Statement 5 alleging that the personal properties forcibly taken from them by petitioners, amounting to P2,645.00, were not included in the levy. Her son, Tranquilino Atienza, also executed an Affidavit corroborating her declaration. 6 Both Statements were subscribed and sworn to before respondent Judge. On February 7, 1966, two separate charges for Theft, docketed as Criminal Cases Nos. 12943 and 12945, were filed against petitioners and Carlos Quintana before the Municipal Court of Pasig, Rizal, respondent Judge, presiding. 7 A Complaint for Grave Coercion Crime Case No. 12944) was also lodged against petitioners and three Does on the same date. 8 The three Complaints were filed by Lt. Jose S. Lontoc, Chief of the Criminal Investigation Section of the Police Department of Pasig, Rizal, for and on behalf of the Chief of Police. These Complaints contained an annotation on the lower left hand corner reading: "APPROVED AFTER PRELIMINARY EXAMINATION: (SGD) Lucila P. Alcoba, Special Counsel." The Complaints in Criminal Cases Nos. 12943 and 12944 for Theft and Grave Coercion, respectively, were subscribed and sworn to by Lt. Jose S. Lontoc before respondent Judge. The Complaint in Criminal Case No. 12945 for Theft does not show the jurat on its face, but respondents state that it was also attested to by Lt. Lontoc before respondent Judge and that this appears on the dorsal side of the Complaint. On February 8, 1966, warrants for the arrest of petitioners were issued by respondent Judge in all three cases 9 after preliminary examination conducted by him in Criminal Cases Nos. 12943 and 12944, and by Special Counsel Lucila P. Alcoba in Criminal Case No. 12945. Petitioners took exception to the issuance of the warrants of arrest against them and instituted the present Petition raising the following issues: 1wph1.t 1. When Section 87, Republic Act No. 296, as amended by Republic Act No. 3828, provides that when the penalty provided by law does not exceed prision correccional, then the Municipal Judge in the capitals of the provinces shall have "like jurisdiction as the Court of First Instance" to try the offense, does the Municipal Court in such cases follow the procedure for Municipal Courts or that for Courts of First Instance? 2. Is preliminary investigation a part of due process? 3. Can there be due process without the presence of the accused during the preliminary investigation. 10 On February 23, 1966, we required respondents to file an Answer, and ordered the issuance of a Writ of Preliminary injunction restraining respondent Judge from enforcing the warrants of arrest issued in Criminal Cases Nos. 12943, 12944 and 12945. Section 87, paragraph 4 of the Judiciary Act of 1948 (R.A. 296), as amended by Republic Acts Nos. 2613 and 3828, provides. 1wph1.t Municipal judges in the capitals of provinces and judges of city courts shall have like jurisdiction as the Court of First Instance to. try parties charged with an offense committed within their respective jurisdiction, in which the penalty provided by law does not exceed prision correccional or imprisonment for not more than six years or fine not exceeding six thousand pesos or both, and in the absence of the district judge, shall have like jurisdiction within the province as the Court of First Instance to hear application for bail. Pursuant to the foregoing provision, both Criminal Cases Nos. 12943 and 12945, for Theft of P590.00 and P1,018.00, respectively, fall under the concurrent jurisdiction of the Municipal Court of Pasig and the Court of First Instance of Rizal, as the penalty provided for said crimes, pursuant to Article 309 (3) of the Revised Penal Code, is prision correccional in its minimum and medium periods. Criminal Case No. 12944 for Grave Coercion, with a penalty, under Article 286 of the Revised Penal Code, of arresto mayor and a fine not exceeding P500.00, also falls under the concurrent jurisdiction of the Municipal Court of Pasig and the Court of First Instance of Rizal. 11 It is petitioners' submission that because of this concurrent jurisdiction, a Municipal Court acts in reality as a Court of First Instance and, consequently, it cannot issue warrants of arrest without first giving the accused a chance to be heard; and that the Information filed should carry a certification under oath that defendant was given a chance to appear in person at said examination and investigation. Continuing, petitioners argue that since Special Counsel Lucila P. Alcoba of the Office of the Provincial Fiscal of Rizal, in Criminal Cases Nos. 12943 and 12945, merely signed the Complaints for these two cases below the notation, "Approved after preliminary examination", her failure to make the certification under oath to the effect that the accused were given a chance to appear in person or by counsel at said examination and investigation, was violative of the due process clause, and, therefore, the warrants of arrest issued thereafter should be quashed. Section 14, Rule 112 of the Rules of Court, relied upon by petitioners, provides: 1wph1.t Section 14. Preliminary examination and investigation by provincial or city fiscal or by state attorney in cases cognizable by the Court of First Instance. -Except when an investigation has been conducted by a judge of first instance, justice of the peace or other officer in accordance with the provisions of the preceding sections, no information for an offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal, or state attorney, without first giving the accused a chance to be heard in a preliminary investigation conducted by him or by his assistant by issuing a corresponding subpoena. lf the accused appears, the investigation shall be conducted in his presence and he shall have the right to be heard, and to cross-examine the complainant and his witnesses. and to adduce evidence in his favor. If he

cannot be subpoenaed, or if subpoenaed he does not appear before the fiscal, the investigation shall proceed without him. The fiscal or state attorney shall certify under oath in the information to be filed by him that the defendant was given a chance to appear in person or by counsel at said investigation and examination. On the other hand, respondents contend that the governing proviso is the second paragraph of Section 10, Rule 112, referring to the right of an accused to preliminary. investigation after arrest, reading: "in cases triable in the municipal or city courts. the accused shall not be entitled as a matter of right to a preliminary investigation in accordance with this section" and that this rule applies whether the case is within the exclusive original jurisdiction of the Municipal Court or within its concurrent jurisdiction with the Court of First Instance. The issue of whether or not an accused is entitled to appear and present evidence in a preliminary investigation in cases falling within the concurrent jurisdiction of the Municipal Court and the Court of First Instance has been squarely resolved in the negative by this Court, speaking through Mr. Justice Claudio Teehankee, in the cases of People vs. Abejuela and People vs. Endan, 12 reiterated in the case of Banzon vs. Cabato, 64 SCRA 419 (1975), which decisively held, that even though the offense be one falling within the concurrent jurisdiction of the City Courts and Courts of First Instance, the accused is not entitled as a matter of right to be heard in a preliminary investigation under section 10, Rule 112. The reason is because the case goes to trial already after the arrest of the accused and his delivery to the Court. 13 "The ensuing trial on the merits takes the place of preliminary investigation, without needless waste or duplication of time and effort, and a final verdict on the innocence (or guilt) of the accused is thereupon rendered, rather than an inconclusive dismissal of the charge by the fiscal in a preliminary investigation which would not constitute jeopardy." 14 To reiterate and to re-state the rule, therefore, there is no right of preliminary investigation in cases triable by inferior Courts, without distinction as to whether such case be of their exclusive or concurrent jurisdiction. 15 What was conducted by the respondent Judge in these cases is the preliminary examination before the issuance of a warrant of arrest pursuant to section 1, Rule 112. The 1935 Constitution, in section l (3), Article III provides that no warrant shall be issued but upon probable cause to be determined by the Judge after examination of witnesses under oath or affirmation of the complaint and the witnesses he may produce. Conformably thereto, Section 87, paragraph 3, of the Judiciary Act, as amended by Republic Act No. 3828, provides that: before a Municipal Judge may issue a warrant of arrest, the following conditions must first be fulfilled: (1) he must examine the witness or witnesses personally; (2) the examination must be under oath; and (3) the examination must be reduced to writing in the form of searching questions and answers. These requirements have been met in the three criminal cases involved herein. As explained by respondent Judge in his Answer: 1wph1.t Before the warrants of arrest were issued by the respondent Judge in Criminal Cases Nos. 12944 and 12945 (actually 12943 and 12944), he first conducted, on February 8, 1966, the necessary preliminary examination required by Section l of Rule 112 by adopting, as his own questions, and by asking the complainants and their witnesses, the same or Identical questions asked of them by the Investigating Police Officer in their written statements before the said Police Investigator, Annexes "4", "5", and '7' hereof, and thereafter the respondent Judge required them (the complainants and their witnesses) to subscribe before and make oath to him as to the truth of the answers given by them to the Police Investigator as shown by the fact that in said Annexes "4", "5", and "7", the deponents signed their respective names twice, once before the Investigating Police Officer and the second time before the respondent Judge who also required them to take the jurat to the oath, thereby complying to the requirements of Section 87 of the Judiciary Act of 1948, as amended, providing therein that '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. 16 By "searching questions and answers" is meant: 1wph1.t 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', 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. 17 In the language of this Court in De Mulata vs. Irizari, 61 SCRA 210, 213 (1974): 1wph1.t The requirement that the investigating judge must examine the witnesses personally, which examination shall be under oath and reduced to writing in the form of searching questions and answers, is fulfilled where the municipal judge 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. In regards Criminal Case No. 12945 for Theft, respondent Judge had this to say: 1wph1.t As regards Criminal Case No. 12943 (actually 12945), although, the respondent Judge did not take the oath of the complainant and her witness on the statement given by them to the Police investigator, Annexes "I" and "2" hereof, Special Counsel Lucile P. Alcoba of the Office of the Provincial Fiscal of Rizal conducted the necessary preliminary examination required by Section l of Rule l l 2 in that, as can be seen from said Annexes 'I' and '2', she asked the same

or Identical questions appearing in said annexes to the deponents and adopted the questioning of the Police Investigator as her own interrogations of the complainant and her witness, and thereafter she required them to subscribe their respective names and to swear before her as to the truth of the answers given by them to each and every question appearing in said Annexes '1' and '2' and, although there was no certification, in the exact form required by law, by Special Counsel Lucile P. Alcoba that she conducted the required preliminary examination of the complainant and her witness, it is admitted that her certification in the body of the complaint stating "Approved after preliminary examination", accompanied by the oath taken by her before the respondent Judge after making such certification, is a substantial compliance to the requirements of the law although it can be said that the same is somewhat defective in form. (pp. 4647, Rollo) xxx xxx xxx From the foregoing explanation, lt may be deduced that respondent Judge was satisfied that the questions and answers in a previous investigation by Special Counsel Alcoba partook of the nature of his searching questions and answers and made them his own. As held in Luna vs. Plaza, supra, the Judiciary Act as amended by Republic Act No. 3828, does not prohibit the Municipal Judge from adopting the questions asked by a previous investigator. For, in the final analysis, whether or not probable cause exists or not depends upon the judgment and discretion of the Judge issuing the warrant of arrest (De Mulata vs. Irizari, supra). In Criminal Case No. 12945 below, respondent Judge had convinced himself that probable cause existed before he issued the warrant of arrest. Under the attendant circumstances, respondent Judge may not be said to have acted arbitrarily. We reiterate, however, the reminder in the Luna case (supra), reading: 1wph1.t 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. (Luna vs. Plaza, supra p. 323) Petitioners further maintain that Section 5 of Rule 112 of the Rules of Court, in so far as it authorizes the Municipal Court to conduct a preliminary examination before the issuance of a Warrant of Arrest without previous notice to the accused, is unconstitutional as it violates the guarantee of equal protection of the laws, and Section l (15), Art. III of the 1935 Constitution which states, "No person shall be held to answer for a criminal offense without due process of law." Section 5, Rule l l 2 provides: 1wph1.t The municipal, the city judge, the fiscal or the municipal mayor who conducts the preliminary examination as provided in these rules must take under oath, either in the presence or in the absence of the accused, the testimony of the complainant and his witnesses. The testimony of the complainant and his witnesses shall be reduced to writing and signed by them. The preliminary examination referred to is defined, under Section l of Rule 112, as a previous inquiry or examination made before the arrest of the accused by a Judge or officer authorized to conduct the same, with whom a Complaint or Information has been filed imputing the commission of an offense cognizable by the Court of First Instance, for the purpose of determining 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. This section does not refer to the preliminary investigation proper provided for under Section 10, Rule 112, in which the accused is given access to the testimony and evidence presented against him at the preliminary examination, and to present evidence if he so desires. From Section 5 of Rule 112, supra, it is clear that, unlike in the preliminary investigation proper, an accused is not entitled as a matter of right to be present, during the preliminary examination nor to cross-examine the witnesses presented against him before his arrest, the purpose of said examination being merely to determine whether or not there is sufficient reason to issue a warrant of arrest. 18 Section l (3), Article III of the 1935 Constitution commanding the determination of probable cause prior to issuance of a warrant arrest, requires no notice to an accused. A preliminary examination is generally a proceeding ex-parte in which the person charged has no right to participate or be present. The right to confrontation of witnesses neither applies to a preliminary hearing. The reason therefor has been explained thus: 1wph1.t ... It can not be seriously contended that an accused person has a right to be present during this stage of the proceedings. To hold that he had such a right and to reverse a judgment of conviction on this ground would have the effect of destroying the very purpose of that part of the criminal law. lt would be against public policy. lt is frequently essential that such investigations be kept secret and that the accused should have no suspicion of any complaint against him, otherwise he might avoid punishment for his crime by escaping before arrest. (U.S. vs. Grant, et al., 18 Phil. 122, 147) ... it is often the only means of discovering the persons who may reasonably be charged with the crime so as to enable the fiscal to prepare his complaint or information, ... (People vs. Badilla, 48 Phil., 719, 731) While section l (3) Art. III of the 1935 Constitution does require, before the issuance of a warrant of arrest, the determination of probable cause by the Judge after examination of witnesses he may produce, the curtailment of the presence of an accused during that preliminary

examination entails no infringement of the constitutional right to due process of law nor to equal protection of the laws. Thus, in Manzano vs. Villa, 19 this Court categorically held: 1wph1.t The preliminary examination conducted by the municipal judge was essentially a procedural matter and no substantial rights of the accused were violated just because he had not been given an opportunity to examine the witnesses against him. The first stage of the preliminary investigation is 'not the occasion for full and exhaustive presentation of parties' evidence but only such as may engender well-grounded belief that an offense has been committed and that the accused is probably guilty thereof' The proceeding is usually held ex-parte, for under section 5 of Rule 112 all that is required is for the judge conducting such examination to 'take under oath, either in the presence or absence of the accused, the testimony of the complainant and his witnesses,' said testimony to be reduced to writing and signed by them. Hence, the absence of the accused during the preliminary examination was not a denial of due process of law. Neither can the withholding of the right of preliminary investigation from the accused in cases triable by inferior Courts be termed ' an unjust or unfair distinction, as explained in People vs. Abejuela, supra: 1wph1.t ... The loss of time entailed in the conduct of preliminary investigations, with the consequent extension of deprivation of the accused's liberty, in case he fails to post bail, which at times out- lasts the period of the penalty provided by law for the offense, besides the mental anguish suffered in protracted litigations, are eliminated with the assurance of a speedy and expeditious trial for the accused, upon his arraignment (without having to undergo the second stage of the preliminary investigation), and of a prompt verdict on his guilt or innocence. On the other hand, the so-called first stage of preliminary investigation or the preliminary examination, conducted by the duly authorized officer, as borne out by the examination and sworn written statements of the complainants and their witnesses, generally offices to establish the existence of reasonable ground to charge the accused with having committed the offense complained of. Attention should also be called to the fact that neither the 1935 nor the 1973 Constitution requires the holding of a preliminary investigation. lt is settled doctrine that the right hereto is of statutory character and may be invoked only when specifically created by statute. 20 lt is not a fundamental right and may be waived expressly or by silence. 21 In a nutshell, the proceedings in these three criminal cases conformed to law and jurisprudence. But even conceding that petitioners were entitled to a preliminary investigation, the proper forum before which absence thereof should have been raised and ventilated was in the trial Court, not in an appellate Court because the absence of preliminary investigation does not go to the jurisdiction of the Court but merely to the regularity of the proceedings, and bearing in mind that preliminary investigation can be waived, as in fact, it is frequently waived. 22 WHEREFORE, the Petition is hereby denied and the Writ of Preliminary Injunction heretofore issued is hereby lifted. Costs against petitioners. SO ORDERED. Teehankee, Makasiar, Fernandez, Guerrero, Abad Santos and De Castro, JJ., concur.1wph1.t Concepcion Jr., J., is on leave. Separate Opinions FERNANDO, CJ., dissenting: It is with regret that I am unable to concur fully with the scholarly and exhaustive opinion of Justice Melencio-Herrera. lt is quite evident, for me at least, that the question before us calls for the expression of views on the two stages of preliminary investigation, first the preliminary examination before the issuance of the warrant of arrest and thereafter the preliminary investigation proper. There has been at times a blurring of the distinction in our decisions. lt is my submission that as in all other legal issues, reliance on what the Constitution ordains supplies the needed clarification. 1. It is gratifying to note that there is again a reaffirmance in this decision of the constitutional aspect of the preliminary examination. The present Constitution is quite clear: "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 not be violated, and no search warrant or warrant of arrest snail issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." 1 lt used to be, under the 1935 Constitution, the fundamental law in force at the time petitioners were indicted, the sole prerogative of a judge. Now the phrase, "such other responsible officer as may be authorized by law," has been added. lt is not for me an improvement insofar as the right to personal freedom is concerned. lt is, however, provided for, and once such responsible officer is so authorized, he could issue a warrant of arrest, but always after examination under oath or affirmation of the complainant and the witnesses he may produce. No such official of the government has been vested with such competence. 2. Respondent judge admitted that in Criminal Case No. 12945 for theft, he "did not take the oath of the complainant and her witnesses on the statement given by them to the Police Investigator," having allowed a special counsel of the Office of the Provincial Fiscal to conduct the preliminary examination, with such counsel asking merely "the same or Identical questions," and adopting "the questioning of the Police investigator as her own interrogations of the complainant and her witness," with the sole safeguard that she required them to swear before her as to the truth of their answers. I am not prepared to accept the view that the constitutional requirement has been satisfied. To that extent, I cannot join the opinion of the Court. 3. I subscribe fully to the ruling of the Court that under the 1935 Constitution, as is likewise the case under the present Charter, the presence of the accused at the preliminary examination when a judge has to determine the existence of a probable cause to justify the issuance of a warrant of arrest is not necessary. It suffices that the complainant and the witnesses he may produce be examined, to satisfy which requirement the applicable statute has wisely provided that the examination be reduced to writing in the form of searching questions and answers. 2 The allegation, therefore, that there is a denial of due process finds no support in the wording of the Constitution. Nor is there any merit to the contention that solely because of such absence, the accused could invoke the equal protection guarantee. 4. I must qualify my concurrence with the paragraph of the opinion of the Court immediately before the dispositive portion. It reads thus: "In a nutshell, the proceedings in these three criminal cases conformed to law and jurisprudence. But even conceding that petitioners were entitled

to a preliminary investigation, the proper forum before which absence thereof should have been raised and ventilated was in the trial Court, not in an appellate Court because the absence of preliminary investigation does not go to the jurisdiction of the Court but merely to the regularity of the proceedings, and bearing in mind that preliminary investigation can be waived, as in fact, it is frequently waived." 3 lf all that it signifies is that the absence of a preliminary investigation does not of itself raise a constitutional question, then I am in full agreement. Where, however, a preliminary investigation was in fact conducted, the proceedings had, if infected by unfairness or arbitrariness could, to my mind, raise a due process question. In which case, there may be a resort to an appellate tribunal. lt is true that in People v. Abejuela, 4 the earlier case of People v. Monton, where a preliminary investigation, although admittedly not a constitutional requirement, could raise a due process question, was, in the language of this Court, "deemed to have been overturned by the Court's later pronouncements in the series of cases above cited." 5 I would qualify such pronouncement, however, by the principle that the fundamental postulate that any actuation by a public official if vitiated by an infirmity amounting to injustice or unfairness condemned by the due process guarantee justifies the filing of the appropriate special civil action in an appellate tribunal. Hence my qualified concurrence. AQUINO, J., concurring: I concur in the result. It is lamentable and deplorable that the three non-capital criminal cases filed against the petitioners (two theft cases and a grave coercion case) have been pending for more than fifteen years and have not been tried due to the baseless procedural technicality raised by the petitioners for dilatory purposes. That maneuver is a monkey wrench which disrupted the proceedings in the municipal court. The delay in cases like the instant case is one factor which undermines public confidence in the expeditious and effective administration of justice. Notwithstanding petitioners' pretension, no issue of due process or denial of a constitutional right is involved in those cases. Since respondent municipal judge conducted the requisite preliminary examination (first stage of the preliminary investigation) in conformity with Republic Act No. 3828, he has the right to try the case. The petitioners are not entitled to demand that the second stage of the preliminary investigation be held. After the preliminary examination and the arraignment, the cases can be tried by the municipal court. The second stage of the preliminary investigation would overlap with the trial of the cases. Such overlapping should be avoided. (See Natividad vs. Robles, 87 Phil. 834; People vs. Colicio 88 Phil. 196.) The preliminary examination conducted by the municipal judge is a sufficient safeguard against hasty, malicious and oppressive prosecutions and is intended to prevent the innocent from being subjected to a useless, vexatious and expensive trial. Barredo, J., concur.1wph1.t Separate Opinions FERNANDO, CJ., dissenting: It is with regret that I am unable to concur fully with the scholarly and exhaustive opinion of Justice Melencio-Herrera. lt is quite evident, for me at least, that the question before us calls for the expression of views on the two stages of preliminary investigation, first the preliminary examination before the issuance of the warrant of arrest and thereafter the preliminary investigation proper. There has been at times a blurring of the distinction in our decisions. lt is my submission that as in all other legal issues, reliance on what the Constitution ordains supplies the needed clarification. 1. It is gratifying to note that there is again a reaffirmance in this decision of the constitutional aspect of the preliminary examination. The present Constitution is quite clear: "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 not be violated, and no search warrant or warrant of arrest snail issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." 1 lt used to be, under the 1935 Constitution, the fundamental law in force at the time petitioners were indicted, the sole prerogative of a judge. Now the phrase, "such other responsible officer as may be authorized by law," has been added. lt is not for me an improvement insofar as the right to personal freedom is concerned. lt is, however, provided for, and once such responsible officer is so authorized, he could issue a warrant of arrest, but always after examination under oath or affirmation of the complainant and the witnesses he may produce. No such official of the government has been vested with such competence. 2. Respondent judge admitted that in Criminal Case No. 12945 for theft, he "did not take the oath of the complainant and her witnesses on the statement given by them to the Police Investigator," having allowed a special counsel of the Office of the Provincial Fiscal to conduct the preliminary examination, with such counsel asking merely "the same or Identical questions," and adopting "the questioning of the Police investigator as her own interrogations of the complainant and her witness," with the sole safeguard that she required them to swear before her as to the truth of their answers. I am not prepared to accept the view that the constitutional requirement has been satisfied. To that extent, I cannot join the opinion of the Court. 3. I subscribe fully to the ruling of the Court that under the 1935 Constitution, as is likewise the case under the present Charter, the presence of the accused at the preliminary examination when a judge has to determine the existence of a probable cause to justify the issuance of a warrant of arrest is not necessary. It suffices that the complainant and the witnesses he may produce be examined, to satisfy which requirement the applicable statute has wisely provided that the examination be reduced to writing in the form of searching questions and answers. 2 The allegation, therefore, that there is a denial of due process finds no support in the wording of the Constitution. Nor is there any merit to the contention that solely because of such absence, the accused could invoke the equal protection guarantee. 4. I must qualify my concurrence with the paragraph of the opinion of the Court immediately before the dispositive portion. It reads thus: "In a nutshell, the proceedings in these three criminal cases conformed to law and jurisprudence. But even conceding that petitioners were entitled to a preliminary investigation, the proper forum before which absence thereof should have been raised and ventilated was in the trial Court, not in an appellate Court because the absence of preliminary investigation does not go to the jurisdiction of the Court but merely to the regularity of the proceedings, and bearing in mind that preliminary investigation can be waived, as in fact, it is frequently waived." 3 lf all that it signifies is that the absence of a preliminary investigation does not of itself raise a constitutional question, then I am in full agreement. Where, however, a

preliminary investigation was in fact conducted, the proceedings had, if infected by unfairness or arbitrariness could, to my mind, raise a due process question. In which case, there may be a resort to an appellate tribunal. lt is true that in People v. Abejuela, 4 the earlier case of People v. Monton, where a preliminary investigation, although admittedly not a constitutional requirement, could raise a due process question, was, in the language of this Court, "deemed to have been overturned by the Court's later pronouncements in the series of cases above cited." 5 I would qualify such pronouncement, however, by the principle that the fundamental postulate that any actuation by a public official if vitiated by an infirmity amounting to injustice or unfairness condemned by the due process guarantee justifies the filing of the appropriate special civil action in an appellate tribunal. Hence my qualified concurrence. AQUINO, J., concurring: I concur in the result. It is lamentable and deplorable that the three non-capital criminal cases filed against the petitioners (two theft cases and a grave coercion case) have been pending for more than fifteen years and have not been tried due to the baseless procedural technicality raised by the petitioners for dilatory purposes. That maneuver is a monkey wrench which disrupted the proceedings in the municipal court. The delay in cases like the instant case is one factor which undermines public confidence in the expeditious and effective administration of justice. Notwithstanding petitioners' pretension, no issue of due process or denial of a constitutional right is involved in those cases. Since respondent municipal judge conducted the requisite preliminary examination (first stage of the preliminary investigation) in conformity with Republic Act No. 3828, he has the right to try the case. The petitioners are not entitled to demand that the second stage of the preliminary investigation be held. After the preliminary examination and the arraignment, the cases can be tried by the municipal court. The second stage of the preliminary investigation would overlap with the trial of the cases. Such overlapping should be avoided. (See Natividad vs. Robles, 87 Phil. 834; People vs. Colicio 88 Phil. 196.) The preliminary examination conducted by the municipal judge is a sufficient safeguard against hasty, malicious and oppressive prosecutions and is intended to prevent the innocent from being subjected to a useless, vexatious and expensive trial. Barredo, J., concur.1wph1 Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 71410 November 25, 1986 JOSEFINO S. ROAN, petitioner, vs. THE HONORABLE ROMULO T. GONZALES, PRESIDING JUDGE, REGIONAL TRIAL COURT OF MARINDUQUE, BRANCH XXXVIII; THE PROVINCIAL FISCAL OF MARINDUQUE; THE PROVINCIAL COMMANDER, PC-INP MARINDUQUE, respondents. CRUZ, J: Once again we are asked to annul a search warrant on the ground that it violates the Constitution. As we can do no less if we are to be true to the mandate of the fundamental law, we do annul. One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own house. That right has ancient roots, dating back through the mists of history to the mighty English kings in their fortresses of power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This was his humble cottage from which he could bar his sovereign lord and all the forces of the Crown. That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably, continues to dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to enjoy this right after the ordeal of the past despotism. We must cherish and protect it all the more now because it is like a prodigal son returning. That right is guaranteed in the following provisions of Article IV of the 1973 Constitution: SEC. 3. 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 not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. SEC. 4. (1) The privacy of communication and cor- respondence shag be inviolable except upon lawful order of the court, or when public safety and order require otherwise. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Invoking these provisions, the petitioner claims he was the victim of an illegal search and seizure conducted by the military authorities. The articles seized from him are sought to be used as evidence in his prosecution for illegal possession of firearms. He asks that their admission be temporarily restrained (which we have) 1 and thereafter permanently enjoined. The challenged search warrant was issued by the respondent judge on May 10, 1984. 2 The petitioner's house was searched two days later but none of the articles listed in the warrant was discovered. 3 However, the officers conducting the search found in the premises one Colt Magnum revolver and eighteen live bullets which they confiscated. They are now the bases of the charge against the petitioner. 4 To be valid, a search warrant must be supported by probable cause to be determined by the judge or some other authorized officer after examining the complainant and the witnesses he may produce. No less important, there must be a specific description of the place to be searched and the things to be seized, to prevent arbitrary and indiscriminate use of the warrant. 5

Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as referring to "such facts and circumstances which would lead a reasonably 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." As held in a long line of decisions, the probable cause must refer to only one specific offense. 7 The inclusion of the requirement for the "examination under oath or affirmation of the complainant and the witnesses he may produce" was a refinement proposed by Delegate Vicente J. Francisco in the1934 Constitutional Convention. His purpose was the strengthening of the guaranty against unreasonable searches and seizures. Although the condition did not appear in the corresponding provision of the federa Constitution of the United States which served as our model it was then already embodied in the Code of Criminal Procedure. Nevertheless, Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights of that body, readily accepted the proposal and it was thereafter, following a brief debate, approved by the Convention. 8 Implementing this requirement, the Rules of Court provided in what was then Rule 126: SEC. 4. Examination of the applicant. The municipal or city judge must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him. The petitioner claims that no depositions were taken by the respondent judge in accordance with the above rule, but this is not entirely true. As a matter of fact, depositions were taken of the complainant's two witnesses in addition to the affidavit executed by them. 9 It is correct to say, however, that the complainant himself was not subjected to a similar interrogation. Commenting on this matter, the respondent judge declared: The truth is that when PC Capt. Mauro P. Quinosa personally filed his application for a search warrant on May 10, 1984, he appeared before me in the company of his two (2) witnesses, Esmael Morada and Jesus Tohilida, both of whom likewise presented to me their respective affidavits taken by Pat. Josue V. Lining, a police investigator assigned to the PC-INP command at Camp Col. Maximo Abad. As the application was not yet subscribed and sworn to, I proceeded to examine Captain Quillosa on the contents thereof to ascertain, among others, if he knew and understood the same. Afterwards, he subscribed and swore to the same before me. 10 By his own account, an he did was question Captain Quillosa on the contents of his affidavit only "to ascertain, among others, if he knew and understood the same," and only because "the application was not yet subscribed and swom to." The suggestion is that he would not have asked any questions at all if the affidavit had already been completed when it was submitted to him. In any case, he did not ask his own searching questions. He limited himself to the contents of the affidavit. He did not take the applicant's deposition in writing and attach them to the record, together with the affidavit presented to him. As this Court held in Mata v. Bayona: 11 Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he niay produce and attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it wifl be found later that his declarations are false. We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant invalid. The respondent judge also declared that he "saw no need to have applicant Quillosa's deposition taken considering that he was applying for a search warrant on the basis of the information provided by the aforenamed witnesses whose depositions as aforementioned had already been taken by the undersigned." 12 In other words, the applicant was asking for the issuance of the search warrant on the basis of mere hearsay and not of information personally known to him, as required by settled jurisprudence." 13 The rationale of the requirement, of course, is to provide a ground for a prosecution for perjury in case the applicant's declarations are found to be false. His application, standing alone, was insufficient to justify the issuance of the warrant sought. It was therefore necessary for the witnesses themselves, by their own personal information, to establish the apphcant's claims. 14 Even assuming then that it would have sufficed to take the depositions only of the witnesses and not of the applicant himself, there is still the question of the sufficiency of their depositions. It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. 15 A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida, who both claimed to be "intelligence informers," shows that they were in the main a mere restatement of their allegations in their affidavits, except that they were made in the form of answers to the questions put to them by the respondent judge. Significantly, the meaningful remark made by Tohilida that they were suspicious of the petitioner because he was a follower of the opposition candidate in the forthcoming election (a "Lecarista") 16 did not excite the respondent judge's own suspicions. This should have put him on guard as to the motivations of the witnesses and alerted him to possible misrepresentations from them. The respondent judge almost unquestioningly received the witnesses' statement that they saw eight men deliver arms to the petitioner in his house on May 2, 1984. 17 This was supposedly done overtly, and Tohilida said he saw everything through an open window of the house while he was near the gate. 18 He could even positively say that six of the weapons were.45 caliber pistols and two were.38 caliber revolvers. 19 One may well wonder why it did not occur to the respondent judge to ask how the witness could be so certain even as to the caliber of the guns, or how far he was from the window, or whether it was on the first floor or a second floor, or why his presence was not noticed at all, or if the acts related were really done openly, in the full view of the witnesses, considering that these acts were against the law. These would have

been judicious questions but they were injudiciously omitted. Instead, the declarations of the witnesses were readily accepted and the search warrant sought was issued forthwith. The above-discussed defects have rendered the search warrant invalid. Nonetheless, the Solicitor General argues that whatever defect there was, was waived when the petitioner voluntarily submitted to the search and manifested his conformity in writing. 20 We do not agree. What we see here is pressure exerted by the military authorities, who practically coerced the petitioner to sign the supposed waiver as a guaranty against a possible challenge later to the validity of the search they were conducting. Confronted with the armed presence of the military and the presumptive authority of a judicial writ, the petitioner had no choice but to submit. This was not, as we held in a previous case, 21 the manifestation merely of our traditional Filipino hospitality and respect for authority. Given the repressive atmosphere of the Marcos regime, there was here, as we see it, an intimidation that the petitioner could not resist. The respondents also argue that the Colt Magnum pistol and the eighteen have bullets seized from the petitioner were illegal per se and therefore could have been taken by the military authorities even without a warrant. Possession of the said articles, it is urged, was violative of P.D. 1866 and considered malum prohibitum. Hence, the Wegal articles could be taken even without a warrant. 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 petitioner's premises had no right to be there and therefore had no right either to seize the pistol and bullets. 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 search warrant is still necessary. If the rule were otherwise, then the military authorities could have just entered the premises and looked for the guns reportedly kept by the petitioner without bothering to first secure a search warrant. The fact that they did bother to do so indicates that they themselves recognized the necessity of such a warrant for the seizure of the weapons the petitioner was suspected of possessing. It is true that there are certain instances when a search may be validly made without warrant and articles may be taken validly as a result of that search. For example, a warrantless search may be made incidental to a lawful arrest, 22 as when the person being arrested is frished for weapons he may otherwise be able to use against the arresting officer. Motor cars may be inspected at borders to prevent smuggling of aliens and contraband 23 and even in the interior upon a showing of probable cause. 24 Vessels and aircraft are also traditionally removed from the operation of the rule because of their mobility and their relative ease in fleeing the state's jurisdiction. 25 The individual may knowingly agree to be searched or waive objections to an illegal search. 26 And it has also been held that prohibited articles may be taken without warrant if they are open to eye and hand and the peace officer comes upon them inadvertently. 27 Clearly, though, the instant case does not come under any of the accepted exceptions. The respondents cannot even claim that they stumbled upon the pistol and bullets for the fact is that these things were deliberately sought and were not in plain view when they were taken. Hence, the rule having been violated and no exception being applicable, the conclusion is that the petitioner's pistol and bullets were confiscated illegally and therefore are protected by the exclusionary principle. Stonehill v. Diokno established this rule which was later expressly affirmed in the 1973 Constitution. While conceding that there may be occasions when the criminal might be allowed to go free because "the constable has blundered," Chief Justice Concepcion observed that the exclusionary rule was nonetheless "the only practical means of enforcing the constitutional injunction" against abuse. The decision cited Judge Learned Hand's justification that "only in case the prosecution which itself controls the seizing officials, know that it cannot profit by their wrong, will the wrong be repressed. " The pistol and bullets cannot, of course, be used as evidence against the petitioner in the criminal action against him for illegal possession of firearms. Pending resolution of that case, however, the said articles must remain in custodia legis. Finally, it is true that the petitioner should have, before coming to this Court, filed a motion for the quashal of the search warrant by the respondent judge in accordance with the normal procedure. But as we said and did in Burgos, "this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised. 28 WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10, 1984, is hereby declared null and void and accordingly set aside. Our restraining order of August 6,1985, is made permanent. No costs. SO ORDERED. Teehankee, C.J., Feria, Yap, Fernan, Melencio-Herrera, Alampay, Gutierrez, Jr and Paras, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-69899 July 15, 1985 ROMMEL CORRO, petitioner, vs. HON. ESTEBAN LISING Presiding Judge, Regional Trial Court, Quezon City, Branch XCV HON. REMIGIO ZARI Regional Trial Court, Quezon City, Branch 98; CITY FISCAL'S OFFICE, Quezon City; LT. COL. BERLIN A. CASTILLO and 1ST LT. GODOFREDO M. IGNACIO, respondents, Reynaldo L. Bagatsing for petitioner. RELOVA, J.: On September 29, 1983, respondent Regional Trial Court judge Esteban Lising of Quezon City, upon application filed by Lt. Col. Berlin Castillo of the Philippine Constabulary Criminal Investigation Service, issued Search Warrant No. Q-00002 authorizing the search and seizure of 1. Printed copies of Philippine Times; 2. Manuscripts/drafts of articles for publication in the Philippine Times;

3. Newspaper dummies of the Philippine Times; 4. Subversive documents, articles, printed matters, handbills, leaflets, banners; 5. Typewriters, duplicating machines, mimeographing and tape recording machines, video machines and tapes which have been used and are being used as instrument and means of committing the crime of inciting to sedition defined and penalized under Article 142 of the Revised Penal Code, as amended by PD 1835 ... (p. 24, Rollo) On November 6, 1984, petitioner filed an urgent motion to recall warrant and to return documents/personal properties alleging among others that: 2. ... the properties seized are typewriters, duplicating machines, mimeographing and tape recording machines, video machines and tapes which are not in any way, inanimate or mute things as they are, connected with the offense of inciting to sedition. 3. More so, documents or papers seized purporting to do the body of the crime has been rendered moot and academic due to the findings of the Agrava Board that a military conspiracy was responsible for the slaying of the late Senator Benigno Aquino, Jr. on August 21, 1983 at the Manila International Airport. The Agrava Board which has the exclusive jurisdiction to determine the facts and circumstances behind the killing had virtually affirmed by evidence testamentary and documentary the fact that soldiers killed Benigno Aquino, Jr. 4. More so, the grave offense of libel, RTC, Q.C. Branch XCV has dismissed said case against the accused on all documents pertinent and more so as we repeat, rendered moot and academic by the recent Agrava Report. (p. 27, Rollo) On January 28, 1985, respondent Judge Lising denied the motion in a resolution, pertinent portions of which state: ... The said articles presently form part of the evidence of the prosecution and they are not under the control of the prosecuting arm of the government. Under these circumstances, the proper forum from which the petition to withdraw the articles should be addressed, is the Office of the City Fiscal, Quezon City and not with this Branch of the Court. It is to be further noted that it is not even with this Branch of the Court that the offense of inciting to sedition is pending. (p 29, Rollo) Hence, this petition for certiorari and mandamus, with application for preliminary injunction and restraining order to enjoin respondent Regional Trial Court, National Capital Region, Branch 98 from proceeding with the trial of Criminal Case No. S3-Q-29243, praying (a) that Search Warrant No. Q-00002 issued by respondent Judge Esteban M. Lising be declared null and void ab initio and that a mandatory injunction be issued directing respondents City Fiscal's Office of Quezon City and Lt. Col. Berlin Castillo and 1st Lt. Godofredo Ignacio jointly and severally to return immediately the documents/properties illegally seized from herein petitioner and that final injunction be issued enjoining respondents City Fiscal's Office of Quezon City, Lt. Col. Castillo and 1st Lt. Ignacio from utilizing said documents/properties as evidence in Criminal Case No. 29243; and (b) that respondent PC-CIS officers Lt. Col. Berlin A. Castillo and lst Lt. Godofredo Ignacio be directed to reopen the padlocked office premises of the Philippine Times at 610 Mezzanine Floor, Gochengco Building, T.M., Kalaw, Ermita, Manila. In Our Resolution of February 19, 1985, respondents were required to file their comment. The plea for temporary restraining order was granted and respondents City Fiscal's Office of Quezon City, Lt. Col. Berlin Castillo and 1st Lt. Godofredo Ignacio were enjoined from introducing as evidence for the state the documents/properties seized under Search Warrant No. Q-00002 in Criminal Cage No. Q-29243 (Sedition case against petitioner), pending before the Regional Trial Court of Quezon City, Branch 98, effective immediately and continuing until further orders from the Court. Respondents would have this Court dismiss the petition on the ground that (1) the present action is premature because petitioner should have filed a motion for reconsideration of respondent Judge Lising's order of January 28, 1985; (2) probable cause exists justifying the issuance of a search warrant; (3) the articles seized were adequately described in the search warrant; (4) a search was conducted in an orderly manner; (5) the padlocking of the searched premises was with the consent of petitioner's wife; (6) the findings of the Agrava Board is irrelevant to the issue of the validity of the search warrant; (7) press freedom is not an issue; and, (8) the petition is barred by laches. There is merit in the petition. Respondents contend that petitioner should have filed a motion for reconsideration of the order in question before coming to Us. This is not always so. When the questions raised before the Supreme Court are the same as those which were squarely raised in and passed upon by the lower court, the filing of the motion for reconsideration in said court before certiorari can be instituted in the Supreme Court is no longer a prerequisite. As held in Bache & Co. (Phil.), Inc. vs. Ruiz, 37 SCRA 823, (t)he rule requiring the filing of a motion for reconsideration before an application for a writ of certiorari can be entertained was never intended to be applied without considering the circumstances. The rule does not apply where, the deprivation of petitioners' fundamental right to due process taints the proceeding against them in the court below not only with irregularity but also with nullity." Likewise, in Pajo, et al. vs. Ago, et al., 108 Phil. 905 and in Gonzales vs. Court of Appeals, 3 SCRA 465, this Court ruled that "it is only when questions are raised for the first time before the high court in a certiorari case that the writ shall not issue, unless the lower court had first been given an opportunity to pass upon the same." Further, in the case of Matute vs. Court of Appeals, 26 SCRA 768, We held that "while as a matter of policy a motion for reconsideration in the lower court has often been considered a condition sine qua non for the granting of a writ of certiorari, this rule does not apply where the proceeding in which the error occurred is a patent nullity or where 'the deprivation of petitioner's fundamental right to due process ... taints the proceeding against him in the court below not only with irregularity but with nullity (Luzon Surety Co. v. Marbella et al., L-16038, Sept. 30, 1960), or when special circumstances warrant immediate and more direct action. ..." The records of this petition clearly disclose that the issues herein raised have already been presented to and passed upon by the court a quo. Section 3, Article IV of the 1973 Constitution provides: SEC. 3. ...no search warrant or warrant of arrest issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

and, Section 3, Rule 126 of the New Rules of Court, states that: SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the judge or justice of the peace 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. Probable cause may be defined as "such reasons, supported by facts and circumstances, as will warrant a cautious man in the belief that his actions, and the means taken in prosecuting it, are legally just and proper (Burton vs. St. Paul, M & M. Ry. Co., 33 Minn. 189, cited in U.S. vs. Addison, 28 Phil. 566)." Thus, an application for search warrant must state with particularly the alleged subversive materials published or intended to be published by the publisher and editor of the Philippine Times, Rommel Corro. As We have stated in Burgos, Sr. vs. Chief of Staff of the Armed Forces of the Philippines, 133 SCRA 800, "mere generalization will not suffice." A search warrant should particularly describe the place to be searched and the things to be seized. "The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant- to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be committed, that abuses may not be committed Bache & Co. Phil. Inc. vs, Ruiz, supra)." The affidavit of Col. Castillo states that in several issues of the Philippine Times: ... we found that the said publication in fact foments distrust and hatred against the government of the Philippines and its duly constituted authorities, defined and penalized by Article 142 of the Revised Penal Code as amended by Presidential Decree No. 1835; (p. 22, Rollo) and, the affidavit of Lt. Ignacio reads, among others ... the said periodical published by Rommel Corro, contains articles tending to incite distrust and hatred for the Government of the Philippines or any of its duly constituted authorities. (p. 23, Rollo) The above statements are mere conclusions of law and will not satisfy the requirements of probable cause. They can not serve as basis for the issuance of search warrant, absent of the existence of probable cause. In fact, as a consequence of the search warrant issued, the items confiscated from the premises of the office of the Philippine Times at 610 Mezzanine Floor, Gochengco Bldg., T.M. Kalaw, Ermita, Manila were the following: 1. One bundle of assorted negative; 2. One bundle of assorted lay out; 3. Three folders of assorted articles/writings used by Philippine Times news and other paraphernalias; 4. Four tape alleged speech of Mayor Climaco, two alleged speeches of Aquino and a speech of one various artist; 5. One bundle Dummies; 6. Ten bundles of assorted copies of Philippine Times issued on different dates (Nos. 6, 7, 8, 9, 10, 11, 12, 13, 14 & 15): 7. One Typewriter Remington Brand Long Carriage with No. J-2479373; 8. OneTypewriterAdler-short with No. 9003011; 9. Three (3) bundles of Philippine Times latest issue for Baguio City (p. 26, Rollo) In Stonehill vs. Diokno, 20 SCRA 383, this Court held that search warrants authorizing the seizure of books of accounts and records "showing all the business transactions" of certain persons, regardless of whether the transactions were legal or illegal, contravene the explicit comment of the Bill of Rights that the things to be seized should be particularly described and defeat its major objective of eliminating general warrants. In the case at bar, the search warrant issued by respondent judge allowed seizure of printed copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies, subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing and tape recording machines. Thus, the language used is so all embracing as to include all conceivable records and equipment of petitioner regardless of whether they are legal or illegal. The search warrant under consideration was in the nature of a general warrant which is constitutionally objectionable. Respondents do not deny the fact that the business office of the "Philippine Times" of which petitioner was the publisher-editor was padlocked and sealed. The consequence is, the printing and publication of said newspaper were discontinued. In Burgos, Sr. vs. Chief of Staff of the Armed Forces of the Philippines, supra, We held that "[sluch closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry." Finally, respondents argue that while the search warrant was issued on September 29, 1983 and was executed on the very same day, it was only on November 6, 1984, or one (1) year, one (1) month and six (6) days when petitioner filed his motion for the recall of the warrant and the return of the documents/personal properties. Having failed to act seasonably, respondents claim that petitioner is guilty of laches. Laches is the failure or neglect, for an unreasonable and unexplained length of time, to do that which by exercising due diligence, could or should have been done earlier. The negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it (Tijam vs. Sibonghanoy, L-21450, April 15, 1968, 23 SCRA 35). In his petition, Corro alleged that on October 1, 1983, less than forty-two (42) hours after the military operatives shut down his newspaper on September 29, 1983, he was invited by the Director-General PC/INP, and subsequently detained. Thereafter, he was charged with the crime of inciting to sedition before the City Fiscal's Office in Quezon City, and on October 7, 1983, a preventive detention action was served upon him. Consequently, he had to file a petition for habeas corpus. It was only on November 8, 1984 when this Court issued its Resolution in G.R. No. 68976, entitled: In the Matter of the Petition for Habeas Corpus of Rommel Corro Angle Corro vs. Minister Juan Ponce Enrile, et al., releasing Rommel Corro on recognizance of his lawyers, Attys. Humberto B. Basco, Reynaldo Bagatsing and Edilberto Balce, In the same month, November 1984, petitioner filed his motion to recall warrant and to return the seized documents. When respondent judge denied the motion, he came to Us. Considering the above circumstances, the claim that petitioner had abandoned his right to the possession of the seized properties is incorrect.

WHEREFORE, Search Warrant No. Q-00002 issued by the respondent judge on September 29, 1983 is declared null and void and, accordingly, SET ASIDE. The prayer for a writ of mandatory injunction for the return of the seized articles is GRANTED and all properties seized thereunder are hereby ordered RELEASED to petitioner. Further, respondents Lt. Col. Berlin A. Castillo and lst Lt. Godofredo M. Ignacio are ordered to RE-OPEN the padlocked office premises of the Philippine Times at 610 Mezzanine Floor, Gochengco Bldg., T.M. Kalaw, Ermita, Manila. SO ORDERED. Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur. Fernando, C.J., concur in the result. Aquino, J., took no part. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-69803 October 8, 1985 CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners, vs. HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of Quezon City; HON. ANTONIO P. SANTOS, Presiding Judge, Branch XLII, Metropolitan Trial Court of Quezon City: HON. SERGIO F. APOSTOL, City Fiscal, Quezon City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL RAMOS and COL. JESUS ALTUNA, respondents. Jose W .Diokno, Joker P. Arroyo, Rene A. V. Sarmiento, Dan Malabonga and Cesar Maravilla for petitioners. MELENCIO-HERRERA, J.: The facts before the Court in these Certiorari, Prohibition, and mandamus proceedings will be briefly stated. The three petitioners will be referred to through their surnames of NOLASCO, AGUILAR-ROQUE and TOLENTINO. 1. Prior to August 6, 1984 (hereinafter to be referred to without the year), AGUILAR-ROQUE was one of the accused of Rebellion in Criminal Case No. MC-25-113 of Military Commission No. 25, both cases being entitled "People of the Philippines vs. Jose Ma. Sison, et al." She was then still at large. 2. At 11:30 A.M. on August 6th, AGUILAR-ROQUE and NOLASCO were arrested by a Constabulary Security Group (CSG) at the intersection of Mayon Street and P. Margall Street, Quezon City. The stated time is an allegation of petitioners, not denied by respondents. The record does not disclose that a warrant of arrest had previously beeen issued against NOLASCO. 3. At 12:00 N. on August 6th, elements of the CSG searched the premises at 239-B Mayon Street, Quezon City. The stated time is an allegation of petitioners, not specifically denied by respondents. In their COMMENT, however, respondents have alleged that the search was conducted "late on the same day"; that is late on august 6th. 4. On August 6th, at around 9:00 A.M., Lt. Col. Virgilio G. Saldajeno of the CSG, applied for a Search Warrant from respondent Hon. Ernani Cruz Pao, Executive Judge of the Regional Trial Court in Quezon City, to be served at No. 239-B Mayon Street, Quezon City, determined tyo be the leased residence of AGUILAR-ROQUE, after almost a month of "round the clock surveillance" of the premises as a "suspected underground house of the CPP/NPA." AGUILAR-ROQUE has been long wanted by the military for being a high ranking officer of the Communist Party of the Philippines, particularly connected with the MV Karagatan/Doa Andrea cases. In connection with the Search Warrant issued, the following may be stated: (a) The Search Warrant was issued in proceedings entitled "People of the Philippines vs. Mila Aguilar-Roque, Accused, Search Warrant No. 80- 84 for rebellion" (the SEARCH WARRANT CASE). Judge Panos Court was Branch 88. (b) It does not appear from the records before us that an application in writing was submitted by Lt. Col. Saldajeno to Judge Pao. (c) According to the record, Lt. Col. Saldajeno and his witness S/A Dionicio A. Lapus, were examined under oath by Judge Pao but only the deposition of S/A Lapus has been submitted to us. The latter deposed that to his personal knowledge, there were kept in the premises to be searched records, documents and other papers of the CPP/NPA and the National Democratic Front, including support money from foreign and local sources intended to be used for rebellion. 1 5. In connection with the search made at 12:00 N. of August 6th the following may be stated: (a) TOLENTINO was a person then in charge of the premises. He was arrested by the searching party presumably without a warrant of arrest. (b) The searching party seized 428 documents and written materials, 2 and additionally a portable typewriter, and 2 wooden boxes, making 431 items in all. 3 (c) According to the Return, submitted in the SEARCH WARRANT CASE on August 10th, 4 the search was made in the presence of Dra. Marciana Galang, owner of the premises, and of two (2) Barangay Tanods. No mention was made that TOLENTINO was present. The list of the 428 articles and documents attached to the Return was signed by the two Barangay Tanods, but not by Dra. Galang. 6. (a) On August 10th, the three petitioners, AGUILAR-ROQUE, NOLASCO and TOLENTINO, were charged before the Quezon City Fiscal's Office (the CITY FISCAL, for short) upon complaint filed by the CSG against petitioners for "Subversion/Rebellion and/or Conspiracy to Commit Rebellion/Subversion." (b) On August 13th, the CITY FISCAL filed an Information for Violation of Presidential Decree No. 33 (Illegal Possession of Subversive Documents) against petitioners before Branch 42 of the Metropolitan Trial Court of Quezon City (the SUBVERSIVE DOCUMENTS CASE), respondent Judge Antonio P. Santos, presiding.

(c) On August 16th, CSG filed a Motion for Reconsideration with the CITY FISCAL, praying that AGUILAR-ROQUE and NOLASCO be charged with Subversion. The Motion was denied on November 16th. 7. (a) On September 10th, the CSG submitted an Amended Return in the SEARCH WARRANT CASE praying, inter alia, that the CSG be allowed to retain the seized 431 documents and articles, in connection with cases that are presently pending against Mila Aguilar Roque before the Quezon City Fiscal's Office and the court. 5 (b) On September 28th, petitioners were required by Judge Pano to comment on the Amended Return, which AGUILAR-ROQUE did on October 18th, raising the issue of the inadmissibility of any evidence obtained pursuant to the Search Warrant. (c) On December 13, 1984, Judge Pao admitted the Amended Return and ruled that the seized documents "shall be subject to disposition of the tribunal trying the case against respondent." 8. (a) On December 12th, petitioners filed a Motion to Suppress in the SUBVERSIVE DOCUMENTS CASE, praying that such of the 431 items belonging to them be returned to them. It was claimed that the proceedings under the Search Warrant were unlawful. Judge Santos denied the Motion on January 7, 1985 on the ground that the validity of the Search Warrant has to be litigated in the SEARCH WARRANT CASE. He was apparently not aware of the Order of Judge Pao of December 13th issued in the SEARCH WARRANT CASE. Hence, this Petition for Certiorari, Prohibition and mandamus to annul and set aside the (1) Search Warrant issued by respondent RTC Judge Pao; (2) his Order admitting the Amended Return and granting the Motion to Retain Seized Items; and (3) Order of respondent MTC Judge Santos denying petitioners' Motion to Suppress. This Court, on February 12, 1985, issued a Temporary Restraining Order enjoining the respondents or their duly authorized representatives from introducing evidence obtained under the Search Warrant. The PETITIONERS principally assert that the Search Warrant is void because it is a general warrant since it does not sufficiently describe with particularity the things subject of the search and seizure, and that probable cause has not been properly established for lack of searching questions propounded to the applicant's witness. The respondents, represented by the Solicitor General, contend otherwise, adding that the questions raised cannot be entertained in this present petition without petitioners first moving for the quashal of the disputed Search Warrant with the issuing Judge. We find merit in the Petition. Section 3, Article IV of the Constitution, guarantees 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. It also specifically provides that no Search Warrant shall issue except upon probable cause to be determined by the Judge or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized. The disputed Search Warrant (No. 80-84) describes the personalities to be seized as follows: Documents, papers and other records of the Communist Party of the Phihppines/New Peoples Army and/or the National Democratic Front, such as Minutes of the Party Meetings, Plans of these groups, Programs, List of possible supporters, subversive books and instructions, manuals not otherwise available to the public, and support money from foreign or local sources. It is at once evident that the foregoing Search Warrant authorizes the seizure of personal properties vaguely described and not particularized. It is an all- embracing description which includes everything conceivable regarding the Communist Party of the Philippines and the National Democratic Front. It does not specify what the subversive books and instructions are; what the manuals not otherwise available to the public contain to make them subversive or to enable them to be used for the crime of rebellion. There is absent a definite guideline to the searching team as to what items might be lawfully seized thus giving the officers of the law discretion regarding what articles they should seize as, in fact, taken also were a portable typewriter and 2 wooden boxes. It is thus in the nature of a general warrant and infringes on the constitutional mandate requiring particular description of the things to be seized. In the recent rulings of this Court, search warrants of similar description were considered null and void for being too general. Thus: Subversive documents, pamphlets, leaflets, books, and other publications to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines. Light-a-Fire Movement and April 6 Movement. 6 The things to be seized under the warrant issued by respondent judge were described as 'subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials Such description hardly provided a definite guideline to the search team as to what articles might be lawfully seized thereunder. Said description is no different from if not worse than, the description found in the search warrants in "Burgos, et al. v. the Chief of Staff"which this Court declared null and void for being too general. 7 In the case at bar, the search warrant issued by respondent judge allowed the seizure of printed copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing and tape recording machines. Thus, the language used is so all embracing as to include all conceivable records and equipment of petitioner regardless of whether they are legal or illegal. The search warrant under consideration was in the nature of a general warrant which is constitutionally objectionable. 8 The lack of particularization is also evident in the examination of the witness presented by the applicant for Search Warrant. Q Mr. Dionicio Lapus, there is an application for search warrant filed by Lt. Col. Virgilio Saldajeno and the Court would like to know if you affirm the truth of your answer in this deposition? (The deposition instead) A Yes, sir, Q How long did it take you for the surveillance? A Almost a month, sir.

Q Are you a lawyer, Mr. Lapus? A No, Your Honor, but I was a student of law. Q So, you are more or less familiar with the requisites of the application for search warrant? A Yes, Your Honor. Q How did you come to know of the person of Mila Aguilar-Roque? A Because of our day and night surveillance, Your Honor, there were so many suspicious persons with documents. Q What kind of documents do you refer to? A Documents related to the Communist Party of Philippines and New People's Army. Q What else? A Conferences of the top ranking officials from the National Democratic Front, Organization of the Communist Party of the Philippines ... Q And may include what else? A Other papers and documents like Minutes of the Party Meetings, Plans of these groups, Programs, List of possible supporters, subversive books and instructions, manuals not otherwise available to the public and support money from foreign and local sources. 9 The foregoing questions propounded by respondent Executive Judge to the applicant's witness are not sufficiently searching to establish probable cause. The "probable cause" required to justify the issuance of a search warrant comprehends such facts and circumstances as will induce a cautious man to rely upon them and act in pursuant thereof. 10 Of the 8 questions asked, the 1st, 2nd and 4th pertain to Identity. The 3rd and 5th are leading not searching questions. The 6th, 7th and 8th refer to the description of the personalities to be seized, which is Identical to that in the Search Warrant and suffers from the same lack of particularity. The examination conducted was general in nature and merely repetitious of the deposition of said witness. Mere generalization will not suffice and does not satisfy the requirements of probable cause upon which a warrant may issue. 11 Respondents claim, however, that the proper forum for questioning the illegality of a Search Warrant is with the Court that issued it instead of this original, independent action to quash. The records show, however, that petitioners did raise that issue in the SEARCH WARRANT CASE in their Comment, dated October 18, 1984. In fact, they already questioned the admissibility of the evidence obtained under the Search Warrant, even during the inquest investigation on August 10, 1984. And in the SUBVERSIVE DOCUMENTS CASE, they filed a Motion to Suppress on December 12, 1984 claiming that the proceedings under the Search Warrant were unlawful. Substantially, therefore, while not denominated as a motion to quash, petitioners had questioned the legality of the Search Warrant. Parenthetically, it strikes the Court that the pendency of the SEARCH WARRANT CASE and of the SUBVERSIVE DOCUMENTS CASE before two different Courts is not conducive to an orderly administration of justice. It should be advisable that, whenever a Search Warrant has been issued by one Court, or Branch, and a criminal prosecution is initiated in another Court, or Branch, as a result of the service of the Search Warrant, the SEARCH WARRANT CASE should be consolidated with the criminal case for orderly procedure. The later criminal case is more substantial than the Search Warrant proceeding, and the Presiding Judge in the criminal case should have the right to act on petitions to exclude evidence unlawfully obtained. Notwithstanding the irregular issuance of the Search Warrant and although, ordinarily, the articles seized under an invalid search warrant should be returned, they cannot be ordered returned in the case at bar to AGUILAR-ROQUE. Some searches may be made without a warrant. Thus, Section 12, Rule 126, Rules of Court, explicitly provides: Section 12. Search without warrant of person arrested.A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. The provision is declaratory in the sense that it is confined to the search, without a search warrant, of a person who had been arrested. It is also a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be search without a search warrant. In this latter case, "the extent and reasonableness of the search must be decided on its own facts and circumstances, and it has been stated that, in the application of general rules, there is some confusion in the decisions as to what constitutes the extent of the place or premises which may be searched. 12 "What must be considered is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals." 13 Considering that AGUILAR-ROQUE has been charged with Rebellion, which is a crime against public order; that the warrant for her arrest has not been served for a considerable period of time; that she was arrested within the general vicinity of her dwelling; and that the search of her dwelling was made within a half hour of her arrest, we are of the opinion that in her respect, the search at No. 239-B Mayon Street, Quezon City, did not need a search warrant; this, for possible effective results in the interest of public order. Such being the case, the personalities seized may be retained. by CSG, for possible introduction as evidence in the Rebellion Case, leaving it to AGUILAR-ROQUE to object to their relevance and to ask Special Military Commission No.1 to return to her any and all irrelevant documents and articles. WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge Ernani Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondent from introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents case hereby made permanent, the, personalities seized may be retained by the Constabulary Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1, pending before Special Military commission No. 1, without prejudice to petitioner Mila Aguilar-Roque objecting to their relevance and asking said Commission to return to her any and all irrelevant documents and articles. SO ORDERED. Plana, Escolin Relova, Gutierrez, Jr., De la Fuente, Alampay and Patajo concur. Makasiar, C.J., concurs in the result.

Aquino, J.; took no part. Concepcion Jr., J., reserves his vote. Separate Opinions TEEHANKEE, J., concurring and dissenting: I concur with the concurring and dissenting opinion of Mr. Justice Vicente Abad Santos. The questioned search warrant has correctly been declared null and void in the Court's decision as a general warrant issued in gross violation of the constitutional mandate that "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 not be violated" (Bill of Rights, sec. 3). The Bill of Rights orders the absolute exclusion of all illegally obtained evidence: "Any evidence obtained in violation of this . . . section shall be inadmissible for any purpose in any proceeding" (Sec. 4[2]). This constitutional mandate expressly adopting the exclusionary rule has proved by historical experience to be the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of state and police officers to disregard such basic rights. What the plain language of the Constitution mandates is beyond the power of the courts to change or modify. All the articles thus seized fall under the exclusionary rule totally and unqualifiedly and cannot be used against any of the three petitioners, as held by the majority in the recent case of Galman vs. Pamaran (G.R. Nos. 71208-09, August 30, 1985). The Court has held that "in issuing a search warrant the judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify it." (Mata vs. Bayona, 128 SCRA 388, 393-394) The majority pronouncement that "as an incident to (petitioner Mila Aguilar- Roque's) arrest, her dwelling at No. 239-B Mayon Street, Quezon City could have been searched, even without a warrant, for evidence of rebellion" is patently against the constitutional proscription and settled law and jurisprudence. Mr. Justice Cuevas amply discusses this in the dissenting portion of his separate opinion. Suffice it to add and stress that the arresting CSG Group themselves knew that they needed a search warrant and obtained the void warrant in question. The exception of Rule 126, sec. 12 which allows a warrantless search of a person who is lawfully arrested is absolutely limited to his person, at the time of and incident to his arrest and to dangerous weapons or anything which may be used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a place other than the place of arrest. In this case, petitioner Aguilar-Roque was arrested at 11:30 a.m. on board a public vehicle on the road (at Mayon and P. Margall Streets). To hold that her dwelling could "later on the same day" be searched without warrant is to sanction an untenable violation, if not nullification, of the cited basic constitutional rights against unreasonable searches and seizures. I vote to grant the petition in toto. ABAD SANTOS, J., concurring and dissenting: I concur in the judgment insofar as it annuls and sets aside Search Warrant No. 80-84 issued by Executive Judge Ernani Cruz Pao for the reasons adduced by Justice Melencio Herrera. In addition I wish to state the judge either did not fully know the legal and constitutional requirements for the issuance of a search warrant or he allowed himself to be used by the military. In either case his action can only be described as deplorable. I do not agree with the ponencia when it says that personalities seized may be retained by the Constabulary Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1 pending before Special Military Commission No. 1. I agree with Justice Cuevas. for the reasons stated by him, that their retention cannot be justified by the provisions of Sec. 12, Rule 126 of the Rules of Court. But then again I cannot agree with Justice Cuevas, statement that not all the things seized can be ordered returned to their owners. He refers to "the subversive materials seized by the government agents." What are subversive materials? Whether a material is subversive or not is a conclusion of law, not of fact. Who will make the determination? Certainly not the military for it is not competent to do so aside from the fact that it has its own peculiar views on the matter. thus copies of Playboy magazines were seized from a labor leader now deceased and medicines were also seized from a physician who was suspected of being a subversive. I say return everything to the petitioners. CUEVAS, J., concurring and dissenting I fully agree with the pronouncement in the majority opinion nullifying Search warrant No. 80-84 issued by the Hon. Ernani Cruz Pao Executive Judge of the Regional Trial Court of Quezon City which was served at 239B Mayon St., Quezon City It does not specify with requisite particularity the things, objects or properties that may be seized hereunder. Being in the nature of a general warrant, it violates the constitutional mandate that the place to be searched and the persons or things to be seized, 'must be particularly described. (Art. IV, Sec. 3, 1973 Constitution) I, however, regret being unable to concur with the dictum justifying the said search on the basis of Sec. 12, Rule 126 of the Rules of Court which provides: SEC. 12. Search without warrant of person arrested.A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. The lawful arrest being the sole justification for the validity of the warrantless search under the aforequoted provision (Sec. 12, Rule 126) the same must be limited to and circumscribed by, the subject, time, and place of said arrest. As to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and things that may be seized from him are limited to "dangerous weapons" or "anything which may be used as proof of the commission of the offense." Hence An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or might furnish the prisoner with the means of committing violence or escaping or which may be used as evidence in the trial of the cause ... (In Re Moreno vs. Ago Chi, 12 Phil. 439: People vs. Veloso, 48 Phil. 169)

With respect to the time and place of the warrantless search allowed by law, it must be contemporaneous with the lawful arrest. Stated otherwise, to be valid, the search must have been conducted at about the time of the arrest or immediately thereafter and only at the place where the suspect was arrested, The right without a search warrant contemporaneously to search a person lawfully arrested while committing a crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons or other things to effect an escape from custody is not to be doubted. CAROLL vs. US 267 US 122. 158. ... But the right does not extend to other places. Frank Agnello's house was several blocks distant from Alba's house where the arrest was made. When it was entered and searched, the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests. MARSON vs. US, 275 US 192, 199. (Emphasis supplied) (Agnello vs. U.S., 269 U.S. 20,30) The second element which must exist in order to bring the case within the exception to the general rule is that, in addition to a lawful arrest, the search must be incident to the arrest. The search must be made at the place of the arrest, otherwise, it is not incident to the arrest. AGNELLO vs. U.S. supra. In this latter case, 269 U.S. 20 at 30, it is said that the officers have a right to make a search contemporaneously with the arrest. And if the purpose of the officers in making their entry is not to make an arrest, but to make a search to obtain evidence for some future arrest, then search is not incidental to arrest. BYARS vs. U.S. 273 U.S., 28 ET AL. (Papani vs, U. S. 84 F 2d 160, 163) In the instant case, petitioners were arrested at the intersection of Mayon St. and P. Margall St. at 11:30 A.M. of August 6. 1976. The search, on the other hand, was conducted after the arrest, that was at around 12:00 noon of the same day or "late that same day (as respondents claim in their "COMMENT") at the residence of petitioner AGUILAR-ROQUE in 239B May n St., Quezon City. How far or how many kilometers is that place from the place where petitioner was arrested do not appear shown by the record. But what appears undisputed is that the search was made in a place other than the place of arrest and, not on the occasion of nor immediately after the arrest . It cannot be said, therefore, that such a search was incidental to the arrest of the petitioners. Not being an incident of a lawful arrest, the search of the premises at 239B Mayon St., Quezon City WITHOUT A VALID SEARCH WARRANT is ILLEGAL and violative of the constitutional rights of the respondent. The things and properties seized on the occasion of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary rule. However, not all the things so seized can be ordered returned to their owners. Objects and properties the possession of which is prohibited by law, cannot be returned to their owners notwithstanding the illegality of their seizure. (Mata vs. Bayona, 128 SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive materials seized by the government agents which cannot be legally possessed by anyone under the law can and must be retained by the government. Separate Opinions TEEHANKEE, J., concurring and dissenting. I concur with the concurring and dissenting opinion of Mr. Justice Vicente Abad Santos. The questioned search warrant has correctly been declared null and void in the Court's decision as a general warrant issued in gross violation of the constitutional mandate that "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 not be violated" (Bill of Rights, sec. 3). The Bill of Rights orders the absolute exclusion of all illegally obtained evidence: "Any evidence obtained in violation of this . . . section shall be inadmissible for any purpose in any proceeding" (Sec. 4[2]). This constitutional mandate expressly adopting the exclusionary rule has proved by historical experience to be the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of state and police officers to disregard such basic rights. What the plain language of the Constitution mandates is beyond the power of the courts to change or modify. All the articles thus seized fall under the exclusionary rule totally and unqualifiedly and cannot be used against any of the three petitioners, as held by the majority in the recent case of Galman vs. Pamaran (G.R. Nos. 71208-09, August 30, 1985). The Court has held that "in issuing a search warrant the judge must strictly comply with the requirements of the Constitution and the statutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachment upon, or gradual depreciation of the rights secured by the Constitution. No presumptions of regularity are to be invoked in aid of the process when an officer undertakes to justify it." (Mata vs. Bayona, 128 SCRA 388, 393-394) The majority pronouncement that "as an incident to (petitioner Mila Aguilar- Roque's) arrest, her dwelling at No. 239-B Mayon Street, Quezon City could have been searched, even without a warrant, for evidence of rebellion" is patently against the constitutional proscription and settled law and jurisprudence. Mr. Justice Cuevas amply discusses this in the dissenting portion of his separate opinion. Suffice it to add and stress that the arresting CSG Group themselves knew that they needed a search warrant and obtained the void warrant in question. The exception of Rule 126, sec. 12 which allows a warrantless search of a person who is lawfully arrested is absolutely limited to his person, at the time of and incident to his arrest and to dangerous weapons or anything which may be used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a place other than the place of arrest. In this case, petitioner Aguilar-Roque was arrested at 11:30 a.m. on board a public vehicle on the road (at Mayon and P. Margall Streets). To hold that her dwelling could "later on the same day" be searched without warrant is to sanction an untenable violation, if not nullification, of the cited basic constitutional rights against unreasonable searches and seizures. I vote to grant the petition in toto. ABAD SANTOS, J., concurring and dissenting: I concur in the judgment insofar as it annuls and sets aside Search Warrant No. 80-84 issued by Executive Judge Ernani Cruz Pao for the reasons adduced by Justice Melencio Herrera. In addition I wish to state the judge either did not fully know the legal and constitutional requirements for the issuance of a search warrant or he allowed himself to be used by the military. In either case his action can only be described as deplorable.

I do not agree with the ponencia when it says that personalities seized may be retained by the Constabulary Security Group for possible introduction as evidence in Criminal Case No. SMC-1-1 pending before Special Military Commission No. 1. I agree with Justice Cuevas. for the reasons stated by him, that their retention cannot be justified by the provisions of Sec. 12, Rule 126 of the Rules of Court. But then again I cannot agree with Justice Cuevas, statement that not all the things seized can be ordered returned to their owners. He refers to "the subversive materials seized by the government agents." What are subversive materials? Whether a material is subversive or not is a conclusion of law, not of fact. Who will make the determination? Certainly not the military for it is not competent to do so aside from the fact that it has its own peculiar views on the matter. thus copies of Playboy magazines were seized from a labor leader now deceased and medicines were also seized from a physician who was suspected of being a subversive. I say return everything to the petitioners. CUEVAS, J., concurring and dissenting: I fully agree with the pronouncement in the majority opinion nullifying Search warrant No. 80-84 issued by the Hon. Ernani Cruz Pao Executive Judge of the Regional Trial Court of Quezon City which was served at 239B Mayon St., Quezon City It does not specify with requisite particularity the things, objects or properties that may be seized hereunder. Being in the nature of a general warrant, it violates the constitutional mandate that the place to be searched and the persons or things to be seized, 'must be particularly described. (Art. IV, Sec. 3, 1973 Constitution) I, however, regret being unable to concur with the dictum justifying the said search on the basis of Sec. 12, Rule 126 of the Rules of Court which provides: SEC. 12. Search without warrant of person arrested.A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. The lawful arrest being the sole justification for the validity of the warrantless search under the aforequoted provision (Sec. 12, Rule 126) the same must be limited to and circumscribed by, the subject, time, and place of said arrest. As to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and things that may be seized from him are limited to "dangerous weapons" or "anything which may be used as proof of the commission of the offense." Hence An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or might furnish the prisoner with the means of committing violence or escaping or which may be used as evidence in the trial of the cause ... (In Re Moreno vs. Ago Chi, 12 Phil. 439: People vs. Veloso, 48 Phil. 169) With respect to the time and place of the warrantless search allowed by law, it must be contemporaneous with the lawful arrest. Stated otherwise, to be valid, the search must have been conducted at about the time of the arrest or immediately thereafter and only at the place where the suspect was arrested, The right without a search warrant contemporaneously to search a person lawfully arrested while committing a crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons or other things to effect an escape from custody is not to be doubted. CAROLL vs. US 267 US 122. 158. ... But the right does not extend to other places. Frank Agnello's house was several blocks distant from Alba's house where the arrest was made. When it was entered and searched, the conspiracy was ended and the defendants were under arrest and in custody elsewhere. That search cannot be sustained as an incident of the arrests. MARSON vs. US, 275 US 192, 199. (Emphasis supplied) (Agnello vs. U.S., 269 U.S. 20,30) The second element which must exist in order to bring the case within the exception to the general rule is that, in addition to a lawful arrest, the search must be incident to the arrest. The search must be made at the place of the arrest, otherwise, it is not incident to the arrest. AGNELLO vs. U.S. supra. In this latter case, 269 U.S. 20 at 30, it is said that the officers have a right to make a search contemporaneously with the arrest. And if the purpose of the officers in making their entry is not to make an arrest, but to make a search to obtain evidence for some future arrest, then search is not incidental to arrest. BYARS vs. U.S. 273 U.S., 28 ET AL. (Papani vs, U. S. 84 F 2d 160, 163) In the instant case, petitioners were arrested at the intersection of Mayon St. and P. Margall St. at 11:30 A.M. of August 6. 1976. The search, on the other hand, was conducted after the arrest, that was at around 12:00 noon of the same day or "late that same day (as respondents claim in their "COMMENT") at the residence of petitioner AGUILAR-ROQUE in 239B Mayon St., Quezon City. How far or how many kilometers is that place from the place where petitioner was arrested do not appear shown by the record. But what appears undisputed is that the search was made in a place other than the place of arrest and, not on the occasion of nor immediately after the arrest. It cannot be said, therefore, that such a search was incidental to the arrest of the petitioners. Not being an incident of a lawful arrest, the search of the premises at 239B Mayon St., Quezon City WITHOUT A VALID SEARCH WARRANT is ILLEGAL and violative of the constitutional rights of the respondent. The things and properties seized on the occasion of said illegal search are therefore INADMISSIBLE in evidence under the exclusionary rule. However, not all the things so seized can be ordered returned to their owners. Objects and properties the possession of which is prohibited by law, cannot be returned to their owners notwithstanding the illegality of their seizure. (Mata vs. Bayona, 128 SCRA 388, 1984 citing Castro vs. Pabalan, 70 SCRA 478). Thus, the subversive materials seized by the government agents which cannot be legally possessed by anyone under the law can and must be retained by the government. Republic SUPREME Manila EN BANC G.R. No. L-64261 December 26, 1984 of the Philippines COURT

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC., petitioners, vs. THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents. Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for petitioners. The Solicitor General for respondents. ESCOLIN, J.: Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized. Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et al. 1 In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents. At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatory injunction, manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned case until final resolution of the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction was rendered moot and academic. Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without having previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised not to mention the public interest generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the purposes of justice require it...". Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six [6] months. Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5 Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus: Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided. The climate of the times has given petitioners no other choice. If they had waited this long to bring their case to court, it was because they tried at first to exhaust other remedies. The events of the past eleven fill years had taught them that everything in this country, from release of public funds to release of detained persons from custody, has become a matter of executive benevolence or largesse Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security Command, they were further encouraged to hope that the latter would yield the desired results. After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124, Rollo] Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them. Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in this petition. Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question.

1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses. 2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 2082[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b] which states: Which have been used, and are being used as instruments and means of committing the crime of subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon City. The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b]. In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit, And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8 3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized. Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit: Sec. 2. Personal Property to be seized. A search warrant may be issued for the search and seizure of the following personal property: [a] Property subject of the offense; [b] Property stolen or embezzled and other proceeds or fruits of the offense; and [c] Property used or intended to be used as the means of committing an offense. The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants. 4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo 9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner. In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a search warrant. 5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on December 7, 1982. It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the finding of a probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which provides: SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. We find petitioners' thesis impressed with merit. Probable cause for a search is 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 the objects sought in connection with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing

the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so. Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises above- mentioned and the articles and things above-described were used and are continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13 In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court in Alvarez case. Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise: 1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets, tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents communication, letters and facsimile of prints related to the "WE FORUM" newspaper. 2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and piurposes of the subversive organization known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and, 3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly, 1] Toyota-Corolla, colored yellow with Plate No. NKA 892; 2] DATSUN pick-up colored white with Plate No. NKV 969 3] A delivery truck with Plate No. NBS 524; 4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and, 5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang." In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be characterized differently. In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security. As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry. Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities ... in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense." It is doubtful however, if sequestration could validly be effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense. Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied the request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus: The President denied a request flied by government prosecutors for sequestration of the WE FORUM newspaper and its printing presses, according to Information Minister Gregorio S. Cendana. On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a detailed inventory of the equipment and all materials in the premises. Cendaa said that because of the denial the newspaper and its equipment remain at the disposal of the owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated: 2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close the paper's printing facilities and confiscate the equipment and materials it uses. 21 IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs. SO ORDERED. Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur. Aquino, J., took no part. Separate Opinions ABAD SANTOS, J., concurring I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state my own reasons for holding that the search warrants which are the subject of the petition are utterly void. The action against "WE FORUM" was a naked suppression of press freedom for the search warrants were issued in gross violation of the Constitution. The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].) Any search warrant is conducted in disregard of the points mentioned above will result in wiping "out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.) The two search warrants were issued without probable cause. To satisfy the requirement of probable cause a specific offense must be alleged in the application; abstract averments will not suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any determinate provision thereof. The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take possession, among other things, of the following: Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement. The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the Constitution. In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been published in MALAYA which has replaced the former and has the same content but against which no action has been taken. Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the items are subject to the exclusionary rule of evidence. Teehankee, J., concur. Separate Opinions ABAD SANTOS, J., concurring I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state my own reasons for holding that the search warrants which are the subject of the petition are utterly void. The action against "WE FORUM" was a naked suppression of press freedom for the search warrants were issued in gross violation of the Constitution. The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, namely: "(1) that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].) Any search warrant is conducted in disregard of the points mentioned above will result in wiping "out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.) The two search warrants were issued without probable cause. To satisfy the requirement of probable cause a specific offense must be alleged in the application; abstract averments will not suffice. In the case at bar nothing specifically subversive has been alleged; stated only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable under P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of Chief Justice C Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any determinate provision thereof. The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take possession, among other things, of the following: Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement.

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the warrants are general warrants which are obnoxious to the Constitution. In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been published in MALAYA which has replaced the former and has the same content but against which no action has been taken. Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the items are subject to the exclusionary rule of evidence. Teehankee, J., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-68955 September 4, 1986 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUBEN BURGOS y TITO, defendant-appellant. GUTIERREZ, JR., J.: This is an appeal from the decision of the Regional Trial Court of Davao del Sur, 11 th Judicial Region, Digos, Davao del Sur convicting defendant- appellant Ruben Burgos y Tito of The crime of Illegal Possession of Firearms in Furtherance of Subversion. The dispositive portion of the decision reads: WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently established beyond reasonable doubt, of the offense charges , pursuant to Presidential Decree No. 9, in relation to General Order No. 6, dated September 22, 1972, and General Order No. 7, dated September 23, 1972, in relation further to Presidential Decree No. 885, and considering that the firearm subject of this case was not used in the circumstances as embraced in paragraph I thereof, applying the provision of indeterminate sentence law, accused Ruben Burgos is hereby sentenced to suffer an imprisonment of twenty (20) years of reclusion temporal maximum, as minimum penalty, to reclusion perpetua, as maximum penalty, pursuant to sub-paragraph B, of Presidential Decree No. 9, as aforementioned, with accessory penalties, as provided for by law. As a result of this judgment, the subject firearm involved in this case (Homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) is hereby ordered confiscated in favor of the government, to be disposed of in accordance with law. Likewise, the subversive documents, leaflets and/or propaganda seized are ordered disposed of in accordance with law. The information charged the defendant-appellant with the crime of illegal possession of firearm in furtherance of subversion in an information which reads as follows: That in the afternoon of May 13, 1982 and thereabout at Tiguman, Digos, Davao del Sur, Philippines, within the jurisdiction of this Court, the above- named accused with intent to possess and without the necessary license, permit or authority issued by the proper government agencies, did then and there wilfully, unlawfully and feloniously keep, possess, carry and have in his possession, control and custody one (1) homemade revolver, caliber .38, make Smith and Wesson, with Serial No. 8.69221, which firearm was issued to and used by the accused at Tiguman, Digos, Davao del Sur, his area of operations by one Alias Commander Pol for the New People's Army (NPA), a subversive organization organized for the purpose of overthrowing the Government of the Republic of the Philippines through lawless and violent means, of which the accused had knowledge, and which firearm was used by the accused in the performance of his subversive tasks such as the recruitment of New Members to the NPA and collection of contributions from the members. CONTRARY TO LAW. The evidence for the prosecution is summarized in the decision of the lower court as follows: xxx xxx xxx . . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy, it appears that by virtue of an intelligent information obtained by the Constabulary and INP units, stationed at Digos, Davao del Sur, on May 12, 1982, one Cesar Masamlok personally and voluntarily surre0ndered to the authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur Constabulary Headquarters, stating that he was forcibly recruited by accused Ruben Burgos as member of the NPA, threatening him with the use of firearm against his life, if he refused. Along with his recruitment, accused was asked to contribute one (1) chopa of rice and one peso (P1.00) per month, as his contribution to the NPA TSN, page 5, Hearing-October 14, 1982). Immediately, upon receipt of said information, a joint team of PC-INP units, composed of fifteen (15) members, headed by Captain Melchesideck Bargio, (PC), on the following day, May 13, 1982, was dispatched at Tiguman; Davao del Sur, to arrest accused Ruben Burgos. The team left the headquarter at 1:30 P.M., and arrived at Tiguman, at more or less 2:00 o'clock PM where through the help of Pedro Burgos, brother of accused, the team was able to locate accused, who was plowing his field. (TSN, pages 6-7, Hearing-October 14, 1982). Right in the house of accused, the latter was caned by the team and Pat. Bioco asked accused about his firearm, as reported by Cesar Masamlok. At first accused denied possession of said firearm but later, upon question profounded by Sgt. Alejandro Buncalan with the wife of the accused, the latter pointed to a place below their house where a gun was buried in the ground. (TSN, page 8, Hearing-October 14, 1982).

Pat. Bioco then verified the place pointed by accused's wife and dug the grounds, after which he recovered the firearm, Caliber .38 revolver, marked as Exhibit "A" for the prosecution. After the recovery of the firearm, accused likewise pointed to the team, subversive documents which he allegedly kept in a stock pile of qqqcogon at a distance of three (3) meters apart from his house. Then Sgt. Taroy accordingly verified beneath said cogon grass and likewise recovered documents consisting of notebook colored maroon with spiral bound, Exhibit "B" for the prosecution; a pamphlet consisting of eight (8) leaves, including the front and back covers entitled Ang Bayan, Pahayagan ng Partido Komunista ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo Kaisipang Mao qqqZedong dated December 31, 1980, marked as Exhibit "C", and another pamphlet Asdang Pamantalaang Masa sa Habagatang Mindanao, March and April 1981 issue, consisting of ten (10) pages, marked as Exhibit "D" for the prosecution. Accused, when confronted with the firearm Exhibit "A", after its recovery, readily admitted the same as issued to him by Nestor Jimenez, otherwise known as a certain Alias Pedipol, allegedly team leader of the sparrow unit of New People's Army, responsible in the liquidation of target personalities, opposed to NPA Ideological movement, an example was the killing of the late Mayor Llanos and Barangay Captain of Tienda Aplaya Digos, Davao del Sur. (TSN, pages 1-16, Hearing-October 14,1982). To prove accused's subversive activities, Cesar Masamlok, a former NPA convert was presented, who declared that on March 7, 1972, in his former residence at Tiguman Digos, Davao del Sur, accused Ruben Burgos, accompanied by his companions Landrino Burgos, Oscar Gomez and Antonio Burgos, went to his house at about 5:00 o'clock P.M. and called him downstair. Thereupon, accused told Masamlok, their purpose was to ask rice and one (1) peso from him, as his contribution to their companions, the NPA of which he is now a member. (TSN, pages 70, 71, 72, Hearing-January 4, 1983). Accused and his companions told Masamlok, he has to join their group otherwise, he and his family will be killed. He was also warned not to reveal anything with the government authorities. Because of the threat to his life and family, Cesar Masamlok joined the group. Accused then told him, he should attend a seminar scheduled on April 19, 1982. Along with this invitation, accused pulled gut from his waistline a .38 caliber revolver which Masamlok really saw, being only about two (2) meters away from accused, which make him easily Identified said firearm, as that marked as Exhibit "A" for the prosecution. (TSN, pages 72, 73, and 74, Hearing-January 4, 1983). On April 19, 1982, as previously invited, Masamlok, accompanied by his father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the house of accused and attended the seminar, Those present in the seminar were: accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, alias Pedipol and one alias Jamper. The first speaker was accused Ruben Burgos, who said very distinctly that he is an NPA together with his companions, to assure the unity of the civilian. That he encouraged the group to overthrow the government, emphasizing that those who attended the seminar were already members of the NPA, and if they reveal to the authorities, they will be killed. Accused, while talking, showed to the audience pamphlets and documents, then finally shouted, the NPA will be victorious. Masamlok likewise Identified the pamphlets as those marked as Exh. exhibits "B", "C", and "D" for the prosecution. (TSN, pages 75, 76 and 77, Hearing-January 4, 1983) Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez, who likewise expounded their own opinions about the NPA. It was also announced in said seminar that a certain Tonio Burgos, will be responsible for the collection of the contribution from the members. (TSN, pages 78-79, Hearing- January 4, 1983) On May 12, 1982, however, Cesar Masamlok surrendered to Captain Bargio of the Provincial Headquarters of the Philippine Constabulary, Digos, Davao del Sur. Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that on May 19, 1982, he administered the subscription of th extra-judicial confession of accused Ruben Burgos, marked as Exhibit "E " for the prosecution, consisting of five (5) pages. Appearing voluntarily in said office, for the subscription of his confession, Fiscal Lovitos, realizing that accused was not represented by counsel, requested the services of Atty. Anyog, whose office is adjacent to the Fiscal's Office, to assist accused in the subscription of his extra-judicial statement. Atty. Anyog assisted accused in the reading of his confession from English to Visayan language, resulting to the deletion of question No. 19 of the document, by an inserted certification of Atty. Anyog and signature of accused, indicating his having understood, the allegations of his extra-judicial statement. Fiscal Lovitos, before accused signed his statement, explained to him his constitutional rights to remain silent, right to counsel and right to answer any question propounded or not. With the aid of Atty. Anyog, accused signed his confession in the presence of Atty. Anyog and Fiscal Lovitos, without the presence of military authorities, who escorted the accused, but were sent outside the cubicle of Fiscal Lovitos while waiting for the accused. (TSN, pages 36-40, nearing November 15, 1982) Finally, in order to prove illegal possession by accused of the subject firearm, Sgt. Epifanio Comabig in-charge of firearms and explosives, NCO Headquarter, Philippine Constabulary, Digos, Davao del Sur, was presented and testified, that among the lists of firearm holders in Davao del Sur, nothing was listed in the name of accused Ruben Burgos, neither was his name included among the lists of persons who applied for the licensing of the firearm under Presidential Decree No. 1745. After the above-testimony the prosecution formally closed its case and offered its exhibits, which were all admitted in evidence, despite objection interposed by counsel for accused, which was accordingly overruled.

On the other hand, the defendant-appellant's version of the case against him is stated in the decision as follows: From his farm, the military personnel, whom he said he cannot recognize, brought him to the PC Barracks at Digos, Davao del Sur, and arrived there at about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in the evening, he was investigated by soldiers, whom he cannot Identify because they were wearing a civilian attire. (TSN, page 14 1, Hearing-June 15, 1983) The investigation was conducted in the PC barracks, where he was detained with respect to the subject firearm, which the investigator, wished him to admit but accused denied its ownership. Because of his refusal accused was mauled, hitting him on the left and right side of his body which rendered him unconscious. Accused in an atmosphere of tersed solemnity, crying and with emotional attachment, described in detail how he was tortured and the ordeals he was subjected. He said, after recovery of his consciousness, he was again confronted with subject firearm, Exhibit "A", for him to admit and when he repeatedly refused to accept as his own firearm, he was subjected to further prolong (sic) torture and physical agony. Accused said, his eyes were covered with wet black cloth with pungent effect on his eyes. He was undressed, with only blindfold, pungent water poured in his body and over his private parts, making his entire body, particularly his penis and testicle, terribly irritating with pungent pain. All along, he was investigated to obtain his admission, The process of beating, mauling, pain and/or ordeal was repeatedly done in similar cycle, from May 13 and 14, 1982. intercepted only whenever he fell unconscious and again repeated after recovery of his senses, Finally on May 15, 1982, after undergoing the same torture and physical ordeal he was seriously warned, if he will still adamantly refuse to accept ownership of the subject firearm, he will be salvaged, and no longer able to bear any further the pain and agony, accused admitted ownership of subject firearm. After his admission, the mauling and torture stopped, but accused was made to sign his affidavit marked as Exhibit "E" for the prosecution, consisting of five (5) pages, including the certification of the administering officer, (TSN, pages 141148, Hearing-June 15, 1983) In addition to how he described the torture inflicted on him, accused, by way of explanation and commentary in details, and going one by one, the allegations and/or contents of his alleged extrajudicial statement, attributed his answers to those questions involuntarily made only because of fear, threat and intimidation of his person and family, as a result of unbearable excruciating pain he was subjected by an investigator, who, unfortunately he cannot Identify and was able to obtain his admission of the subject firearm, by force and violence exerted over his person. To support denial of accused of being involved in any subversive activities, and also to support his denial to the truth of his alleged extra-judicial confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45, 46 and 47, along with qqqs answers to those questions, involving Honorata Arellano ahas Inday Arellano, said Honorata Arellano appeared and declared categorically, that the above-questions embraced in the numbers allegedly stated in the extrajudicial confession of accused, involving her to such NPA personalities, as Jamper, Pol, Anthony, etc., were not true because on the date referred on April 28, 1982, none of the persons mentioned came to her house for treatment, neither did she meet the accused nor able to talk with him. (TSN, pages 118- 121, Hearing-May 18, 1983) She, however, admitted being familiar with one Oscar Gomez, and that she was personally charged with subversion in the Office of the Provincial Commander, Philippine Constabulary, Digos, Davao del Sur, but said charge was dismissed without reaching the Court. She likewise stated that her son, Rogelio Arellano, was likewise charged for subversion filed in the Municipal Trial Court of Digos, Davao del Sur, but was likewise dismissed for lack of sufficient evidence to sustain his conviction. (TSN, pages 121-122, in relation to her cross-examination, Hearing-May 18, 1983) To support accused's denial of the charge against him, Barangay Captain of Tiguman, Digos, Davao del Sur, Salvador qqqGalaraga was presented, who declared, he was not personally aware of any subversive activities of accused, being his neighbor and member of his barrio. On the contrary, he can personally attest to his good character and reputation, as a law abiding citizen of his barrio, being a carpenter and farmer thereat. (TSl pages 128-129, Hearing-May 18, 1983) He however, admitted in cross-examination, that there were a lot of arrests made by the authorities in his barrio involving subversive activities but they were released and were not formally charged in Court because they publicly took their oath of allegiance with the government. (TSN, pages 133-134, in relation to page 136, Hearing-May 18, 1983) Finally, to support accused's denial of the subject firearm, his wife, Urbana Burgos, was presented and who testified that the subject firearm was left in their house by Cesar Masamlok and one Pedipol on May 10, 1982. It was night time, when the two left the gun, alleging that it was not in order, and that they will leave it behind, temporarily for them to claim it later. They were the ones who buried it. She said, her husband, the accused, was not in their house at that time and that she did not inform him about said firearm neither did she report the matter to the authorities, for fear of the life of her husband. (TSN, page 24, November 22, 1983) On cross-examination, she said, even if Masamlok during the recovery of the firearm, was wearing a mask, she can still Identify him. (TSN, page 6, Hearing-November 22, 1983) After the above-testimony, accused through counsel formally rested his case in support of accused's through counsel manifestation for the demurrer to evidence of the prosecution, or in the alternative for violation merely of simple illegal possession of firearm, 'under the Revised Administrative Code, as amended by Republic Act No. 4, reflected in the manifestation of counsel for accused. (TSN, pages 113-114, Hearing-May 18, 1983) Accused-appellant Ruben Burgos now raises the following assignments of error, to wit:

I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST OF ACCUSED-APPELLANT WITHOUT VALID WARRANT TO BE LAWFUL. II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE HOUSE OF ACCUSED-APPELLANT FOR FIREARM WITHOUT VALID WARRANT TO BE LAWFUL. III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT FOR VIOLATION OF P.D. No. 9 IN RELATION TO GENERAL ORDERS NOS. 6 AND 7 Was the arrest of Ruben Burgos lawful? Were the search of his house and the subsequent confiscation of a firearm and documents allegedly found therein conducted in a lawful and valid manner? Does the evidence sustaining the crime charged meet the test of proving guilt beyond reasonable doubt? The records of the case disclose that when the police authorities went to the house of Ruben Burgos for the purpose of arresting him upon information given by Cesar Masamlok that the accused allegedly recruited him to join the New People's Army (NPA), they did not have any warrant of arrest or search warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61, November 15, 1982). Article IV, Section 3 of the Constitution provides: 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 not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. The constitutional provision is a safeguard against wanton and unreasonable invasion of the privacy and liberty of a citizen as to his person, papers and effects. This Court explained in Villanueva vs. Querubin (48 SCRA 345) why this right is so important: It is deference to one's personality that lies at the core of this right, but it could be also looked upon as a recognition of a constitutionally protected area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v. United States, 385 US 293 [19661) What is sought to be guarded is a man's prerogative to choose who is allowed entry to his residence. In that haven of refuge, his individuality can assert itself not only in the choice of who shall be welcome but likewise in the kind of objects he wants around him. There the state, however powerful, does not as such have access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life, (Cf. Schmerber v. California, 384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 US 616, 630 [1886]). In the same vein, Landynski in his authoritative work (Search and Seizure and the Supreme Court [1966], could fitly characterize this constitutional right as the embodiment of a 'spiritual concept: the belief that to value the privacy of home and person and to afford its constitutional protection against the long reach of government is no legs than to value human dignity, and that his privacy must not be disturbed except in case of overriding social need, and then only under stringent procedural safeguards.' (Ibid, p. 47). The trial court justified the arrest of the accused-appelant without any warrant as falling under one of the instances when arrests may be validly made without a warrant. Rule 113, Section 6 * of the Rules of Court, provides the exceptions as follows: a) When the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence; b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it; c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another. The Court stated that even if there was no warrant for the arrest of Burgos, the fact that "the authorities received an urgent report of accused's involvement in subversive activities from a reliable source (report of Cesar Masamlok) the circumstances of his arrest, even without judicial warrant, is lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court and applicable jurisprudence on the matter." If the arrest is valid, the consequent search and seizure of the firearm and the alleged subversive documents would become an incident to a lawful arrest as provided by Rule 126, Section 12, which states: A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense. The conclusions reached by the trial court are erroneous. Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of that fact. The offense must also be committed in his presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). There is no such personal knowledge in this case. Whatever knowledge was possessed by the arresting officers, it came in its entirety from the information furnished by Cesar Masamlok. The location of the firearm was given by the appellant's wife. At the time of the appellant's arrest, he was not in actual possession of any firearm or subversive document. Neither was he committing any act which could be described as subversive. He was, in fact, plowing his field at the time of the arrest. The right of a person to be secure against any unreasonable seizure of his body and any deprivation of his liberty is a most basic and fundamental one. The statute or rule which allows exceptions to the requirement of warrants of arrest is strictly construed. Any exception must clearly fall within the situations when securing a warrant would be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection. The Solicitor General is of the persuasion that the arrest may still be considered lawful under Section 6(b) using the test of reasonableness. He submits that. the information given by Cesar Masamlok was sufficient to induce a reasonable ground that a crime has been committed and that the accused is probably guilty thereof.

In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. In this case, the accused was arrested on the sole basis of Masamlok's verbal report. Masamlok led the authorities to suspect that the accused had committed a crime. They were still fishing for evidence of a crime not yet ascertained. The subsequent recovery of the subject firearm on the basis of information from the lips of a frightened wife cannot make the arrest lawful, If an arrest without warrant is unlawful at the moment it is made, generally nothing that happened or is discovered afterwards can make it lawful. The fruit of a poisoned tree is necessarily also tainted. More important, we find no compelling reason for the haste with which the arresting officers sought to arrest the accused. We fail to see why they failed to first go through the process of obtaining a warrant of arrest, if indeed they had reasonable ground to believe that the accused had truly committed a crime. There is no showing that there was a real apprehension that the accused was on the verge of flight or escape. Likewise, there is no showing that the whereabouts of the accused were unknown, The basis for the action taken by the arresting officer was the verbal report made by Masamlok who was not required to subscribe his allegations under oath. There was no compulsion for him to state truthfully his charges under pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently, the need to go through the process of securing a search warrant and a warrant of arrest becomes even more clear. The arrest of the accused while he was plowing his field is illegal. The arrest being unlawful, the search and seizure which transpired afterwards could not likewise be deemed legal as being mere incidents to a valid arrest. Neither can it be presumed that there was a waiver, or that consent was given by the accused to be searched simply because he failed to object. To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry into his house does not amount to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin (supra) xxx xxx xxx . . . 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). We apply the rule that: "courts indulge every reasonable presumption against waiver of fundamental constitutional rights and that we do not presume acquiescence in the loss of fundamental rights." (Johnson v. Zerbst 304 U.S. 458). That the accused-appellant was not apprised of any of his constitutional rights at the time of his arrest is evident from the records: A CALAMBA: Q When you went to the area to arrest Ruben Burgos, you were not armed with an arrest warrant? A None Sir. Q Neither were you armed with a search warrant? A No Sir. Q As a matter of fact, Burgos was not present in his house when you went there? A But he was twenty meters away from his house. Q Ruben Burgos was then plowing his field? A Yes Sir. Q When you called for Ruben Burgos you interviewed him? A Yes Sir. Q And that you told him that Masamlok implicated him? A No Sir. Q What did you tell him? A That we received information that you have a firearm, you surrender that firearm, first he denied but when Sgt. Buncalan interviewed his wife, his wife told him that it is buried, I dug the firearm which was wrapped with a cellophane. Q In your interview of Burgos you did not remind him of his rights under the constitution considering that he was purposely under arrest? A I did not. Q As a matter of fact, he denied that he has ever a gun? A Yes Sir. Q As a matter of fact, the gun was not in his possession? A It was buried down in his horse. Q As a matter of fact, Burgos did not point to where it was buried? A Yes Sir. (TSN, pp. 25-26, Hearing-October 14, 1982) Considering that the questioned firearm and the alleged subversive documents were obtained in violation of the accused's constitutional rights against unreasonable searches and seizures, it follows that they are inadmissible as evidence. There is another aspect of this case.

In proving ownership of the questioned firearm and alleged subversive documents, the prosecution presented the two arresting officers who testified that the accused readily admitted ownership of the gun after qqqs wife pointed to the place where it was buried. The officers stated that it was the accused himself who voluntarily pointed to the place where the alleged subversive documents were hidden. Assuming this to be true, it should be recalled that the accused was never informed of his constitutional rights at the time of his arrest. So that when the accused allegedly admitted ownership of the gun and pointed to the location of the subversive documents after questioning, the admissions were obtained in violation of the constitutional right against self-incrimination under Sec. 20 of Art. IV of the Bill of Rights winch provides: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right.. . . The Constitution itself mandates that any evidence obtained in violation of this right is inadmissible in evidence. Consequently, the testimonies of the arresting officers as to the admissions made by the appellant cannot be used against him. The trial court validly rejected the extra-judicial confession of the accused as inadmissible in evidence. The court stated that the appellant's having been exhaustively subjected to physical terror, violence, and third degree measures may not have been supported by reliable evidence but the failure to present the investigator who conducted the investigation gives rise to the "provocative presumption" that indeed torture and physical violence may have been committed as stated. The accused-appellant was not accorded his constitutional right to be assisted by counsel during the custodial interrogation. The lower court correctly pointed out that the securing of counsel, Atty. Anyog, to help the accused when he subscribed under oath to his statement at the Fiscal's Office was too late. It could have no palliative effect. It cannot cure the absence of counsel at the time of the custodial investigation when the extrajudicial statement was being taken. With the extra-judicial confession, the firearm, and the alleged subversive documents inadmissible in evidence against the accused-appellant, the only remaining proof to sustain the charge of Illegal Possession of Firearm in Furtherance of Subversion is the testimony of Cesar Masamlok. We find the testimony of Masamlok inadequate to convict Burgos beyond reasonable doubt. It is true that the trial court found Masamlok's testimony credible and convincing. However, we are not necessarily bound by the credibility which the trial court attaches to a particular witness. As stated in People vs.. Cabrera (100 SCRA 424): xxx xxx xxx . . .Time and again we have stated that when it comes to question of credibility the findings of the trial court are entitled to great respect upon appeal for the obvious reason th+at it was able to observe the demeanor, actuations and deportment of the witnesses during the trial. But we have also said that this rule is not absolute for otherwise there would be no reversals of convictions upon appeal. We must reject the findings of the trial court where the record discloses circumstances of weight and substance which were not properly appreciated by the trial court. The situation under which Cesar Masamlok testified is analogous to that found in People vs. Capadocia (17 SCRA 98 1): . . . The case against appellant is built on Ternura's testimony, and the issue hinges on how much credence can be accorded to him. The first consideration is that said testimony stands uncorroborated. Ternura was the only witness who testified on the mimeographing incident. . . . xxx xxx xxx . . .He was a confessed Huk under detention at the time. He knew his fate depended upon how much he cooperated with the authorities, who were then engaged in a vigorous anti-dissident campaign. As in the case of Rodrigo de Jesus, whose testimony We discounted for the same reason, that of Ternura cannot be considered as proceeding from a totally unbiased source. . . . In the instant case, Masamlok's testimony was totally uncorroborated. Considering that Masamlok surrendered to the military certainly his fate depended on how eagerly he cooperated with the authorities. Otherwise, he would also be charged with subversion. The trade-off appears to be his membership in the Civil Home Defense Force. (TSN, p. 83, January 4, 1983). Masamlok may be considered as an interested witness. It can not be said that his testimony is free from the opportunity and temptation to be exaggerated and even fabricated for it was intended to secure his freedom. Despite the fact that there were other persons present during the alleged NPA seminar of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok, Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have corroborated Cesar Masamlok's testimony that the accused used the gun in furtherance of subversive activities or actually engaged in subversive acts, the prosecution never presented any other witness. This Court is, therefore, constrained to rule that the evidence presented by the prosecution is insufficient to prove the guilt of the accused beyond reasonable doubt. As held in the case of People vs. Baia (34 SCRA 347): It is evident that once again, reliance can be placed on People v. Dramayo (42 SCRA 59), where after stressing that accusation is not, according to the fundamental law, synonymous with guilt, it was made clear: 'Only if the judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty.' (Ibid, 64. Cf. People v. Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126; People vs. Ramirez, 69 SCRA 144; People vs. Godov 72 SCRA 69; People v. Lopez, 74 SCRA 205; People v. Poblador, 76

SCRA 634; People v. Quiazon, 78 SCRA 513; People v. Nazareno, 80 SCRA 484; People vs. Gabilan 115 SCRA 1; People v. Gabiana, 117 SCRA 260; and People vs. Ibanga 124 SCRA 697). We are aware of the serious problems faced by the military in Davao del Sur where there appears to be a well-organized plan to overthrow the Government through armed struggle and replace it with an alien system based on a foreign ideology. The open defiance against duly constituted authorities has resulted in unfortunate levels of violence and human suffering publicized all over the country and abroad. Even as we reiterate the need for all freedom loving citizens to assist the military authorities in their legitimate efforts to maintain peace and national security, we must also remember the dictum in Morales vs. Enrile (1 21 SCRA 538, 569) when this Court stated: While the government should continue to repel the communists, the subversives, the rebels, and the lawless with an the means at its command, it should always be remembered that whatever action is taken must always be within the framework of our Constitution and our laws. Violations of human rights do not help in overcoming a rebellion. A cavalier attitude towards constitutional liberties and protections will only fan the increase of subversive activities instead of containing and suppressing them. WHEREFORE, the judgment of conviction rendered by the trial court is REVERSED and SET ASIDE. The accused-appellant is hereby ACQUITTED, on grounds of reasonable doubt, of the crime with which he has been charged. The subject firearm involved in this case (homemade revolver, caliber .38, Smith and Wesson, with Serial No. 8.69221) and the alleged subversive documents are ordered disposed of in accordance with law. Cost de oficio. SO ORDERED. Feria (Chairman), Fernan, Alampay and Paras, JJ., concur. Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R.No. 74869 July 6, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IDEL AMINNUDIN y AHNI, defendant-appellant. The Solicitor General for plaintiff-appellee. Herminio T. Llariza counsel de-officio for defendant-appellant. CRUZ, J.: The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a fine of P20,000.00. 1 Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough investigation." 5 The motion was granted, and trial proceeded only against the accused-appellant, who was eventually convicted . 6 According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was Identified by name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding charge was then filed against Aminnudin. In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried the blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his business was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have been carrying was not properly Identified and could have been any of several bundles kept in the stock room of the PC headquarters. 14 The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor were they damaged as a result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not

even know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the injuries sustained by him. 19 There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities. The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been allowed for his release. There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest. It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows: Q You mentioned an intelligence report, you mean with respect to the coming of Idel Aminnudin on June 25, 1984? A Yes, sir. Q When did you receive this intelligence report? A Two days before June 25, 1984 and it was supported by reliable sources. Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of marijuana leaves on that date? A Yes, sir, two days before June 25, 1984 when we received this information from that particular informer, prior to June 25, 1984 we have already reports of the particular operation which was being participated by Idel Aminnudin. Q You said you received an intelligence report two days before June 25, 1984 with respect to the coming of Wilcon 9? A Yes, sir. Q Did you receive any other report aside from this intelligence report? A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance, report of illegal gambling operation. COURT: Q Previous to that particular information which you said two days before June 25, 1984, did you also receive daily report regarding the activities of Idel Aminnudin A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin. Q What were those activities? A Purely marijuana trafficking. Q From whom did you get that information? A It came to my hand which was written in a required sheet of information, maybe for security reason and we cannot Identify the person. Q But you received it from your regular informer? A Yes, sir. ATTY. LLARIZA: Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with drugs? A Marijuana, sir. Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many days before you received the intelligence report in writing? A Not a report of the particular coming of Aminnudin but his activities. Q You only knew that he was coming on June 25,1984 two days before? A Yes, sir. Q You mean that before June 23, 1984 you did not know that minnudin was coming? A Before June 23,1984, I, in my capacity, did not know that he was coming but on June 23, 1984 that was the time when I received the information that he was coming. Regarding the reports on his activities, we have reports that he was already consummated the act of selling and shipping marijuana stuff. COURT:

Q And as a result of that report, you put him under surveillance? A Yes, sir. Q In the intelligence report, only the name of Idel Aminnudin was mentioned? A Yes, sir. Q Are you sure of that? A On the 23rd he will be coming with the woman. Q So that even before you received the official report on June 23, 1984, you had already gathered information to the effect that Idel Aminnudin was coming to Iloilo on June 25, 1984? A Only on the 23rd of June. Q You did not try to secure a search warrant for the seizure or search of the subject mentioned in your intelligence report? A No, more. Q Why not? A Because we were very very sure that our operation will yield positive result. Q Is that your procedure that whenever it will yield positive result you do not need a search warrant anymore? A Search warrant is not necessary. 23 That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme Court cannot countenance such a statement. This is still a government of laws and not of men. The mandate of the Bill of Rights is clear: 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. In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be secured. The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a "search warrant was not necessary." In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of selling the prohibited drug. In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The Identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship, when any one could be picked up at will, detained without charges and punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights guarantees. While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict him. Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible. The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of highhandedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminals should escape than that the government should play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself. We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is innocent. ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so ordered. Narvasa, Gancayco and Medialdea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R.No. 74869 July 6, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IDEL AMINNUDIN y AHNI, defendant-appellant. The Solicitor General for plaintiff-appellee. Herminio T. Llariza counsel de-officio for defendant-appellant. CRUZ, J.: The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a fine of P20,000.00. 1 Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough investigation." 5 The motion was granted, and trial proceeded only against the accused-appellant, who was eventually convicted . 6 According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accused-appellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was Identified by name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding charge was then filed against Aminnudin. In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried the blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his business was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have been carrying was not properly Identified and could have been any of several bundles kept in the stock room of the PC headquarters. 14 The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor were they damaged as a result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the injuries sustained by him. 19 There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush

of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities. The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been allowed for his release. There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest. It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows: Q You mentioned an intelligence report, you mean with respect to the coming of Idel Aminnudin on June 25, 1984? A Yes, sir. Q When did you receive this intelligence report? A Two days before June 25, 1984 and it was supported by reliable sources. Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of marijuana leaves on that date? A Yes, sir, two days before June 25, 1984 when we received this information from that particular informer, prior to June 25, 1984 we have already reports of the particular operation which was being participated by Idel Aminnudin. Q You said you received an intelligence report two days before June 25, 1984 with respect to the coming of Wilcon 9? A Yes, sir. Q Did you receive any other report aside from this intelligence report? A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance, report of illegal gambling operation. COURT: Q Previous to that particular information which you said two days before June 25, 1984, did you also receive daily report regarding the activities of Idel Aminnudin A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin. Q What were those activities? A Purely marijuana trafficking. Q From whom did you get that information? A It came to my hand which was written in a required sheet of information, maybe for security reason and we cannot Identify the person. Q But you received it from your regular informer? A Yes, sir. ATTY. LLARIZA: Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with drugs? A Marijuana, sir. Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many days before you received the intelligence report in writing? A Not a report of the particular coming of Aminnudin but his activities. Q You only knew that he was coming on June 25,1984 two days before? A Yes, sir. Q You mean that before June 23, 1984 you did not know that minnudin was coming? A Before June 23,1984, I, in my capacity, did not know that he was coming but on June 23, 1984 that was the time when I received the information that he was coming. Regarding the reports on his activities, we have reports that he was already consummated the act of selling and shipping marijuana stuff. COURT: Q And as a result of that report, you put him under surveillance? A Yes, sir. Q In the intelligence report, only the name of Idel Aminnudin was mentioned?

A Yes, sir. Q Are you sure of that? A On the 23rd he will be coming with the woman. Q So that even before you received the official report on June 23, 1984, you had already gathered information to the effect that Idel Aminnudin was coming to Iloilo on June 25, 1984? A Only on the 23rd of June. Q You did not try to secure a search warrant for the seizure or search of the subject mentioned in your intelligence report? A No, more. Q Why not? A Because we were very very sure that our operation will yield positive result. Q Is that your procedure that whenever it will yield positive result you do not need a search warrant anymore? A Search warrant is not necessary. 23 That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme Court cannot countenance such a statement. This is still a government of laws and not of men. The mandate of the Bill of Rights is clear: 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. In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be secured. The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a "search warrant was not necessary." In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of selling the prohibited drug. In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his arrest. The Identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship, when any one could be picked up at will, detained without charges and punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights guarantees. While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict him. Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible. The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of highhandedness from the authorities, however praiseworthy their intentions. Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminals should escape than that the government

should play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself. We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is innocent. ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so ordered. Narvasa, Gancayco and Medialdea, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 72301 July 31, 1987 ROLANDO PONSICA, ROGELIO ARNAIZ, FR. NICO HOFSTEDE, BERNARDINO PATIGAS, ZACHEUS ROJO, GODOFREDO RETIRACTON, LORETO BERING, ROGELIO ARTAJO, JOVITO MARATAS, CARLOS ALLEONES, MILO PICCIO, ADOLFO MAGUATE, GONZALO CASTILLA, RONNIE DESUYO, FEDERICO AYO, ROLANDO BERNABE, MARIANO REYES, DANIEL GEMPESALA, WILFREDO SARATOBIAS, MILDRED SAGUIRE, CRESENCIO ENCARGUEZ, JOHN BUSTAMANTE, JOHN DOE and RICHARD DOE, petitioners, vs. HON. EMILIO M. IGNALAGA, Presiding Judge, Municipal Trial Court of Escalante, Negros Occidental, MAYOR BRAULIO LUMAYNO, CAPT. MODESTO SAN-SON, CAPT. RAFAEL JUGAN, respondents. NARVASA, J.: The chief issue raised by the petitioners in this case is whether or not Section 143 of the Local Government Code1 granting power to the municipal mayor to conduct preliminary investigations and order the arrest of the accused, was repealed by the 1985 Rules on Criminal Procedure promulgated by this Court; and is, in addition, unconstitutional as vesting the power to conduct preliminary investigations in an official who cannot be deemed a "neutral and detached magistrate" within the contemplation of Section 3, Article IV of the 1973 Constitution. The issue is hereby resolved adversely to the petitioners, with the stressed qualification that the mayor's power to order arrest ceased to exist as of February 2, 1987 when the new Constitution was ratified by the Filipino people, and that, in any event, the investigation actually conducted by respondent mayor in the case at bar was fatally defective. Shortly after noon on September 20, 1985, an attempt was made by firemen and soldiers to disperse a crowd of demonstrators massed in front of the Municipal Building of Escalante, Negros Occidental, with the use first, of water spewed from fire hoses, and later, tear gas. Eventually there was gunfire. Within moments, rallyists lay dead on and by the National Road. The fatalities numbered fifteen (15), according to the military officers; twenty-nine (29), according to the demonstrators. In the afternoon of that day, Escalante Town Mayor Braulio Lumayno, in view of the absence of the Municipal Circuit Court Judge (Emilio Ignalaga), took cognizance of a complaint filed by the Military Station Commander charging some of the rallyists with the felony of inciting to sedition, and after avowedly conducting an investigation of the witnesses presented by the complainant, issued an order for the arrest of certain of the demonstrators. His order reads as follows: It appearing that the Presiding Municipal Circuit Court Judge, Hon. Emilio M. Ignalaga, is on official leave of absence and, in the interest of justice, the undersigned has to urgently act on the complaint filed by the Station Commander, against the above-named accused for "INCITING TO SEDITION" and, on the basis of the evidence submitted after a searching question and answer were conducted and, being satisfied that said crime has been committed, in order not to frustrate the ends of justice, it is necessary that the above-named accused be placed under custody. Let therefore, a warrant of arrest be issued for said above-named accused. Bail recommended: P12,000.00. 2 In the record of the Court a quo appear the following inter alia: 1) Complaint for "Inciting to Sedition" (RPC 142, as and by PD 183 and PD 1974), signed by a Capt. Jugan, and sworn to before Mayor Lumayno on Sept. 20, 1985, bearing the stamped notation of filing with the MTC: "9/24/85, 4:00 PM:" 3 2) 2-page Affidavit of Capt. Sanson, dated, and sworn to before Actg.. City Fiscal Abros (Cadiz City) on Sept. 20, 1985; 4 3) 3-page document, "Searching Questions and Answers" signed by Capt. Sanson, dated. and sworn to before Mayor Lumayno on, September 20, 1985; 5 4) 3-page sworn statement of Godofredo Hoyo-A y Jayme, General Manager of the Balintawak-Escalante Water District; 6 5) Affidavit of Leopoldo Villalon; 7 6) Affidavit of Elpidio Carbajosa; 8 and 7) Affidavit of Eduardo Flores. 9 The gist of the testimony of Capt. Sanson and the other affiants is that on September 20, 1985, the demonstrators, numbering "about 1,000, " had blockaded the main highway in front of the Escalante Municipal Building, by massing themselves on the road as well as by piling stones, coconut trunks and pieces of wood in the middle of the highway. They were also "shouting invectives, seditious and scurrilous words against the government." Negotiations with Ponsica, Chairman of the Escalante Chapter of "BAYAN" (Bagong Alyansang Makabayan), to have the road cleared having been unavailing, firemen on firetrucks began to train a "torrent of water" from their fire hoses on the demonstrators. The rallyists retaliated by hurling stones at the firemen. One of them "approached the security of the firetruck and stabbed him." Others climbed aboard the trucks and tried to grab the firehoses and firearms of the officers. At this point, on Capt. Sanson's orders, his "back-up teams" of soldiers commenced to throw tear gas at the crowd. One of the demonstrators picked up a tear gas canister and hurled it back at the soldiers. At the same time gunfire from "different assorted firearms" emanated from the rallyists; and some of the shots hit the blinker of a firetruck and

the headlight of another. The soldiers shot back. This exchange of gunfire resulted in "fourteen (14) demonstrators killed on the spot. " Recovered at the scene were a rifle; a U.S. 45 cal. pistol; 2 "homemade" pistols; 14 steel arrows and 4 assorted slings; 30 assorted knives; a "pogakhang" with 2 live cartridges; 2 grenades; and several empty shells of different caliber. Hours later, another corpse, Identified as that of a demonstrator, too, was brought to the PC Headquarters. The petitioners however give a different version of the facts. What happened, according to them, was that at 9 o'clock in the morning on that day, a group of demonstrators, "composed mostly of laid-off sugar field workers," gathered in front of Escalante Municipal Hall "in the exercise of their constitutionally guaranteed right to freedom of expression and to assemble peacefully to petition the government for redress of grievances."10 About an hour afterwards, fire trucks arrived one after another, as well as jeeploads of soldiers and CHDF members, in full combat gear, Shortly after noon, after "going thru the motions of negotiating with the demonstrators," the military officers ordered the crowd to disperse; but without warning, fire hoses were trained on and sprayed water at the demonstrators. When the rallyists did not budge, tear gas canisters were thrown at them. A demonstrator picked up a canister and threw it at an "empty space in the plaza" The soldier and CHDF members thereupon fired indiscriminately at the crowd, killing 29 and injuring at least 30 persons.11 After the Mayor had referred the case to Municipal Trial Court Judge Ignalaga on September 24, 1985,12 an "URGENT MOTION TO QUASH WARRANT OF ARREST" was filed on September 26, 1985 by petitioners' counsel on the ground that a mayor no longer has authority to conduct preliminary investigations or issue warrants of arrest that authority having been "withheld in the 1985 New Rules on Criminal Procedure."13 This was opposed by the Station Commander14 who invoked Section 143 of the Local Government Code providing that "(i)n case of temporary absence of the Judge assigned to the municipality, the mayor may conduct the preliminary examination in criminal cases when, in his opinion the investigation cannot be delayed without prejudice to the interest of justice." A reply was filed by the petitioners after their receipt of the opposition "only last October 8, 1985."15 They contended that the "power of the municipal mayor to conduct preliminary investigation and issue a warrant of arrest under the 1964 Revised Rules of Court** (had been) impliedly repealed by the 1985 New Rules on Criminal Procedure;" that "the 1985 New Rules on Criminal Procedure being a special law, controls over provisions of the Local Government Code (BP 337, 1983), which is a general law;" and in any case, "subject t warrants of arrest should be reviewed and revoked as done without observance of legal requisites." By Resolution dated Oct. 11, 1985,16 the Judge confirmed the mayor's arrest order. He opined that in the absence of the judge, the mayor still has authority to conduct preliminary investigations and issue arrest warrants, since Rule 112, Sec. 2 (d), of the 1985 Rules, includes as among those authorized to conduct preliminary investigations, "Such other officers as may be authorized by law;" and the Local G government Code of 1983, Section 143, grants a town mayor authority to conduct preliminary examinations in case of the temporary absence of the judge when such investigation cannot be delayed without prejudice to the interest of justice. The Judge declared that in the case at bar, the mayor had conducted the examination personally, and having in the exercise of his discretion found probable cause, issued the warrants of arrest in question; and conceding arguendo irregularity in that the preliminary examination was conducted without according the parties the assistance of lawyers (contrary to par. 2, Sec. 143, Chap. 3, Title 2, Book 11, Local Government Code), this does not render the proceedings void because at any rate, the mayor had duly observed the uniform procedure under PD 91 (citing: People v. Paran, 52 Phil. 712; Hashim v. Boncan, 71 Phil. 216; Lino v. Fugoso, 77 Phil. 933). It is Mayor Lumayno's order for the petitioners' arrest of September 20, 1985, and Jude Ignalaga's Order of October 11, 1985 "validating that order of arrest" that the petitioners would have this Court nullify and perpetually enjoin.17 In their petition for certiorari and prohibition filed on October 15, 1985, and their Memorandum of January 21, 1986,18 they assert that: 1) while Section 3,Rule 112 of the l964 Rules of Court,empowers the municipal mayor, "in case of temporary absence of both the municipal and the auxiliary municipal judges from the municipality, town or place wherein they exercise their jurisdiction, to make the preliminary examination in criminal cases when such examination cannot be delayed without prejudice to the interest of justice," that power has been removed from him by the 1985 New Rules on Criminal Procedure which "do not mention the Municipal Mayor as among the officers authorized to conduct preliminary investigation (Section 2, Rule 112), much less to issue an order of arrest (Section 6, Ibid.)19 2) Section 143 of BP Blg. 337 (Local Government Code) under which the order of arrest in question is presumably made to restcannot withstand the "constitutional test" of Section 3, Article IV,20 which safeguards the right against unreasonable searches and seizures, and requires the interposition of a "judge, or such other responsible officer as may be authorized by law," meaning "a neutral and detached magistrate competent to determine probable cause (Shadwick v. City of Tampa, 40 LW 4758; Castillo v. Jias, 62 SCRA 124; Ang Tibay v. CIR, 69 Phil. 635; Zambales Chromite, etc. v. C.A., 934 SCRA 2617);" and since a mayor is obviously not such a magistrate (U.S. v. Chadwick, 433 U.S. 197), the orders of arrest at bar are constitutionally infirm;21 moreover, said Section 143 of the Local Government Code is "merely a rule of procedure** (and is thus) deemed to have been superseded by the New Rules of Criminal Procedure;22 3) the Mayor's examination "falls short of the requirements of "searching questions and answers;" the statements of the witnesses supposedly interrogated by the mayor, are either merely conclusions of law or sterile as regards seditious utterances, hence, probable cause was non-existent23 and 4) Article 142 of the Revised Penal Code, as amended-under which the petitioners are charged is based on the US Sedition Act of 1978, which has been declared by the US Supreme Court as "repugnant to the constitutional guarantee of freedom of speech and expression (New York Times Co. v. Sullivan, 376 U.S. 254);" hence, said Article 142 is also fatally flawed and therefore, the warrant. of arrest in question was in effect issued for a "crime which in the context of the constitutionally guaranteed freedom of speech and expression does not exist."24 In his comment filed with this Court,25 Judge Ignalaga argues that

1) The validity of the preliminary examination on the basis of which the arrest warrants were issued, may not be raised for the first time in the Supreme Court, but should first be ventilated before the RTC having cognizance of the crime.26 In any case, upon the considerations set out in his resolution of October 11, 1985, the preliminary examination in question is valid.27 2) The petitioners raise factual issues which are best left for determination by the RTC, the Supreme Court not being a trier of facts.28 3) The Mayor in fact followed the procedure in the constitution prior to issuing the arrest warrants.29 4) The constitutionality of PD 1974 should be assailed by separate petition.30 The Solicitor General at the time, Estelito Mendoza, also filed a comment on December 6, 1985.31 The comment addressed itself only to the issue of "the validity of the law authorizing municipal mayors to issue warrants of arrest and the law punishing inciting to sedition," in view of the fact that the respondents had presented their own separate comments on the petition.32 The comment points out that: 1) Section 3, Article IV, of the 1973 Constitution, which mentions a "judge, or such other responsible officer as may be authorized by law" as vested with competence to conduct preliminary investigations, is an innovation. In implementation thereof, BP Blg. 337 was enacted on February 10, 1983, empowering mayors to conduct preliminary investigations (Sec. 143). This is a recognition of the truism that the determination of probable cause is but a quasi judicial function Ocampo v. US, 58 LED 1231).33 Petitioners' American authorities are not applicable: the mayor is the highest official in the municipality; he exercises only general supervision over the police but is not directly involved in police work; the old rules precisely expressed a recognition of the capability of i mayors to determine probable cause, and the omission of mayors in the 1985 Rules simply means that the determination of officers who may be authorized to conduct preliminary investigations was deemed best left to legislation.34 2) The Philippine sedition law is not akin to the US Sedition Law; in any event our own sedition law has passed the test of constitutionality (Espuelas v. People, 90 Phil. 524).35 Solicitor General Sedfrey A. Ordonez subsequently declared that he "stands by the constitutionality of the statutes the petitioners question and, therefore, sustains the position taken by his predecessor in office;"36 this, in response to this Court's resolution dated May 15, 1986, requiring the parties to state whether supervening events had transpired materially affecting the case.37 It is clear from the outset that the issue before this Court does not involved the adjudgment of the guilt or innocence of the soldiers in the tragic and regrettable killings in front of the Escalante Town Hall in the early afternoon of that day, the twentieth of September, 1985, an event that caused a great outcry of lamentation and condemnation throughout the land. This is a matter that should be and is in fact now subject of a separate criminal proceeding. Neither is the propriety of the victims' exercise of their constitutional rights of free speech and free assembly for redress of grievances in the premises at issue here. The basic question before the Court is divorced of the drama and the passion of those issues; it deals mainly with the dry, unexciting, but nonetheless important matter of whether or not the municipal mayor has the power to conduct preliminary investigations in the light of the 1985 amendments of the rules governing criminal procedure in the Rules of Court. The answer to the question entails a re-examination and analysis of the relevant legal provisions. The 1964 Rules of Court explicitly gave the mayor authority to conduct preliminary investigations. SEC. 3. Preliminary examination by the municipal mayor. In case of temporary absence of both the municipal and the auxiliary municipal judges from the municipality, town, or place wherein they exercise their jurisdiction, the municipal mayor shall make the preliminary examination in criminal cases when such examination cannot be delayed without prejudice to the interest of justice. He shall make a report of any preliminary examination so made to the municipal or to the auxiliary municipal judge immediately upon the return of one or the other. He shall have authority in such cases to order the arrest of the defendant and to grant him bail in the manner and cases provided for in Rule 114. 38 The Rules of 1940 contained an Identical provision, in Section 3, Rule 108. The 1985 Rules on Criminal Procedure did not reproduce this provision, and did not include the mayor in the enumeration of the officers authorized to conduct preliminary investigations, those listed being judges of municipal trial courts and municipal circuit trial courts; city or provincial fiscals and their assistants; national and regional state prosecutors; and "such other officers as may be authorized by law." 39 SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Upon the filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused (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. (n). 40 It is of course the deletion in the 1985 rules of reference to the municipal mayor as among those authorized to conduct preliminary investigations and order arrests upon which the petitioners chiefly rely as basis for their impugnation of Mayor Lumayno's preliminary investigation and order of arrest based thereon. The matter is however treated of not solely by the Rules of Court but also by the 1973 Constitution, Section 3, Article IV whereof reads: SEC. 3. 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 not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. 41 Parenthetically, it may be noted that Section 3, Rule III of the 1935 Constitution mentioned only "the judge" as having power to determine probable cause and issue search and arrest warrants.

The matter is further dealt with in Section 143 of Batas Pambansa Bilang 337, otherwise known as the Local Government Code, which took effect on February 10, 1983. This section evidently deems the mayor a "responsible officer" in contemplation of the cited constitutional provision, and explicitly authorizes him to conduct preliminary examination in criminal cases and order the arrest of the accused upon probable cause. SEC. 143. Authority of the Mayor to Conduct Preliminary Examination. (1) In case of temporary absence of the judge assigned to the municipalities the mayor may conduct the preliminary examination in criminal cases when, in his opinion the investigation cannot be delayed without prejudice to the interest of justice. (2) No examination shall be conducted unless the parties are assisted by lawyers. (3) In cases where he may conduct preliminary examination, the mayor shall upon probable cause after examination of witnesses, have authority order the arrest of the accused and to grant him bail in the manner and cases provided in the Revised Rules of Court and order his provisional release. (4) The mayor shall make a report of any preliminary examination so made immediately after the return of the judge assigned in the area, or upon the designation of his replacement. 42 The 1973 Constitution plainly and unmistakably grants to the legislature the power to determine which " responsible officers, " aside from judges, may issue warrants of arrest after examination under oath or affirmation of the complainant and the witnesses he may produce. And as plainly and unmistakably, the legislature, the Batas Pambansa, has in the Local Government Code made the determination that the mayor is such a "responsible officer "and has in consequence authorized him to conduct preliminary investigations in criminal cases and order the arrest of the accused upon a finding of probable cause. The first issue raised by the petitioners that in September ,1985 the mayor no longer had power to conduct preliminary investigations and issue arrest warrants43 must therefore be resolved against them. The argument that Section 143 of the Local Government Code is just "a rule of procedure merely having incorporated Rule 112, Section 2 of the old rules of Criminal Procedure," and should therefore be deemed "superseded by the New Rules of Criminal Procedure pursuant to the power of this ** Court to promulgate rules of procedure (Article X, Section 5 151, Constitution **)"44 cannot be sustained. However superior the Supreme Court may be to the other branches of government in the realm of adjudication, its power to ordain rules of court was at the time inferior to the lawmaking power of the legislature.45 It is true that the 1935 Constitution repealed all procedural laws then in force "as statutes" and declared them to be "rules of court;" but this was only so that they could be subject to repeal or modification by the Supreme Court, which was given the power to promulgate rules of procedure,46 and has since been exercising such power by promulgating the Rules of Court of 1940 and of 1964, and the 1985 Rules on Criminal Procedure, etc. But the 1935 and 1973 Constitutions explicitly conferred on the legislature the power to repeal, alter or supplement those rules of court, although it would appear that that power is no longer granted to it by the 1987 Charter.47 Now, the conditions under which the mayor could conduct preliminary investigations are also clearly indicated by the law, to wit: 1) in case of the temporary absence of the judge assigned to the municipality; and 2) in his (the mayor's) opinion, the investigation cannot be delayed without prejudice to the interests of justice. On these occasions, the mayor may order the arrest of the accused upon a finding of probable cause after searching examination of the complainant and the witnesses the latter may present. In the case at bar, there is no showing that these conditions have not been met. Indeed, quite apart from the presumption that official duty has been regularly performed.48 and the affirmative statements of respondent official that on that fateful 20th day of September, 1985, Judge Ignalaga was in Manila"49 on official leave or absence,"50 the petitioners have not put the fulfillment of those conditions at issue at all, or the matter of whether or not the accused were "assisted by lawyers" in the course of the investigation.51 The petitioners also challenge the constitutionality of Section 143 of the Local Government Code, it being claimed that the mayor has been thereby authorized to conduct pre investigations and issue warrants of arrest, although he can not be deemed a "neutral and detached magistrate" within the contemplation of Section 3, Article IV of the 1973 Constitution.52 The competence of the Batasang Pambansa to decide and declare by statute which "responsible officers," aside from judges, should be entrusted with the authority to conduct preliminary investigations and issue arrest warrants cannot be doubted in view of the clear language of the Constitution.53 And the determination by the Batasan that a municipal mayor is one such "responsible officer" who may properly be entrusted with the function of conducting preliminary investigations and ordering arrests of suspects upon probable cause, can not be subject of judicial review, absent any indication that the legislative proceedings leading to that statutory determination are void on account of some grave cause. Certainly, the wisdom of the statute, or the validity of the reasons underlying it, or the adequacy of the statistics, facts and circumstances considered by the legislature in its enactment, are beyond the sphere of inquiry of the courts54 The Batasan was apparently of the belief that a municipal mayor could be sufficiently objective and impartial as to be relied upon to conduct preliminary investigations and issue orders of arrest in the exceptional situation when the judge assigned in the municipality was absent. The petitioners disagree. They contend that the mayor cannot in the very nature of things be "neutral and detached." The disagreement, and the fact that plausible reasons may be adduced by one side or the other on the proposition does not make the question a justiciable one. The theory advocated by the petitioners that the mayor's "deep involvement in law enforcement functions is likely to color his judgment as a trier of probable cause,"55 does not induce persuasion. In the first place the premise cannot be conceded. While it is true that the mayors do "exercise general supervision over units and elements of the INP stationed or assigned in their respective jurisdictions," they are not themselves directly involved in police work and cannot in any sense be described, as the petitioners do, as being deeply involved in law enforcement functions. And even if that "deep involvement" be conceded, it does not follow that this would necessarily preclude their assuming "the cold neutrality of an impartial judge" in conducting preliminary investigations of persons suspected of crimes. But it must be emphasized here and now that what has just been described is the state of the law as it was in September, 1985. The law has since been alter. No longer does the mayor have at this time the power to conduct preliminary investigations, much less issue orders of arrest. Section 143 of the Local Government Code, conferring this power on the mayor has been abrogated, rendered functus officio by the 1987

Constitution which took effect on February 2, 1987, the date of its ratification by the Filipino people. Section 2, Article III of the 1987 Constitution pertinently provides 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, and particularly describing the place to be searched and the person or things to be seized. " The constitutional proscription has thereby been manifested that thenceforth, the function of determining probable cause and issuing, on the basis thereof, warrants of arrest or search warrants, may be validly exercised only by judges, this being evidenced by the elimination in the present Constitution of the phrase, "such other responsible officer as may be authorized by law" found in the counterpart provision of said 1973 Constitution,56 who, aside from judges, might conduct preliminary investigations and issue warrants of arrest or search warrants. As the law now stands, the mayor may no longer conduct preliminary investigation, the authority to do so being limited under Section 2, Rule 1 1 2 of the Rules of Court to (1) provincial or city fiscals and their assistants; (2) judges of the Municipal Trial Courts and Municipal Circuit Trial Courts; (3) national and regional state prosecutors; and (d) such other officers as may be authorized by law.57 But only "the judge" may issue search and arrest warrants after due determination of probable cause.58 The petitioners' assault, on the other hand, upon the constitutionality of Article 141 of the Revised Penal Code, defining and penalizing the felony of inciting to sedition, upon the claim that it was "borrowed" from the U.S. Sedition Act of 1798 which in turn has been struck down as inconsistent with the First Amendment of the American Constitution,59 is repelled by the Solicitor General's arguments.60 In the first place, ** our law on inciting to sedition is not akin to the US Sedition Act of 1798 which was imposed on the American colonies by their British ruler. With the success of the American revolution, the 1798 Sedition Act naturally ceased to have effect as it would be utterly incongrous to punish those who sought the overthrow of the British government in America. xxxxxxxxx xxxxxxxxx To annul our law on sedition is to give license to those who seek the application of lawless methods in the advancement of their political views. Our constitution surely does not contemplate this. Finally, the petitioners postulate that in the determination of the existence of probable cause from the constitutional aspect, it is required that: "(1) The judge (or) officer must examine the ** witnesses personally; (2) The examination must be under oath; and (3) The examination must be reduced to writing in the form of searching questions and answers. (Marinas v. Siochio, 104 SCRA 403)." In the light of these principles they contend: firstly, that the mayor's questioning of the witnesses was not "searching" enough; and secondly, that the witnesses' testimony does not establish prima facie the commission of the felony of inciting to sedition. The fact is that is shown by the record, questions about the material events were in truth propounded by Mayor Lumayno to the chief witness. Capt. Sanson;61 and no proof to the contrary has been submitted. The circumstance that the answers given by Capt. Sanson to the mayor's questions are closely reflective of the contends of his affidavit should not come as a surprise and cannot, without more, be taken as debilitating or nullifying the interrogation. The petitioner's second point is much more substantial and is decisive of the controversy. The petitioners are correct in their claim that Capt. Sanson's testimony62 does not in truth contain any facts demonstrating the actuality of the crime of inciting to sedition, which is the crime for which arrest warrants were issued by Mayor Lumayno. The facts recited by Capt. Sanson may perhaps warrant a charge of traffic obstruction, or grave coercion, or malicious mischief, or illegal possession of firearms or deadly weapons, or maybe, attempted murder or homicide. But it is barren of facts to support an accusation of inciting to sedition. The other evidence on record exhibits the same barreness. Two witnesses, Godofredo Hoyo-A and Elpidio Carbajosa, advert in their affidavits63 to the shouting of "seditious words," etc. Hoyo-A is quoted as deposing that "the demonstrators were already unruly ** (and kept) on shouting anti-government slogans, ** invectiues and seditious words against the government,"64 that certain of the petitioners were Identified as being "against the government, ** and using the (Mt. Carmel) School in doctrining (sic) the students against the government,"65 that petitioner Rogelio Arnaiz had delivered a speech in which he had said, "Rumpagon ang dictatorial na regimen ni Pres. Marcos, pamatukan ang NSL, ibagsak ang military kagwalaon ang CHDF, suklan nato ang gobyerno," a woman speaker had said the same thing, and a third speaker, petitioner Daniel Gempesala, also stated: Lumpagon and dictatorial na regimen ni Marcos, kag ibagsak ang Gobyerno;"66 and they had elicited a response from the people there who had raised their right hands and repeated the shouted "slogan."67 Carbajosa in his turn declared that the demonstrators ** were shouting for trouble and ready to make revolution with the use of arms."68 Another affiant, Eduardo Flores, stated that the demonstrators were unruly, "tumultuously shouting seditious words against the government and shouting for revolution."69 The sworn statement of the only other witness, Leopoldo Villalon,70 is totally innocuous as far as proving the elements of inciting to sedition is concerned. The evidence can not justify the action taken by the respondent Mayor and Judge. The Court thus declares as sorely inadequate and mortally defective the avowed evidentiary foundation for Mayor Lumayno's finding of probable cause respecting the commission by the petitioners of the crime of inciting to sedition. The affiants declarations in their sworn statements which might otherwise be pertinent to the offense, are generalities, mere conclusions of their, not positive averments of particular facts within their personal knowledge. 'They do not Identify the specific persons supposed to have perpetrated the crime charged, except two. But even the Identification of these two is of no moment. For except as regards Capt. Sanson, whose testimony, to repeat, is in any case ineffectual to prove the precise offense ascribed to the petitioners, there had been no searching interrogation by Mayor Lumayno of the witnesses as required by the Constitution. Hence, whatever credit could possibly have been accorded to the affidavit of Hoyo-A which ventures to quote the exact words allegedly shouted by petitioners Arnaiz and Gempesala, and an unidentified woman was thereby effectively foreclosed.

WHEREFORE, the writs of certiorari and prohibition are granted. The order of respondent Mayor Lumayno issued on September 20, 1985 and the resolution promulgated by respondent Judge Ignalaga on October 11, 1985 are annulled and set aside, and the respondents are perpetually forbidden to enforce or in any way implement the orders for the arrest of any of the petitioners. No costs. Teehankee, C.J, Yap, Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Cortes, JJ., concur. Sarmiento, J., took no part. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-69866 April 15, 1988 ROGELIO ABERCA, RODOLFO BENOSA, NESTOR BODINO NOEL ETABAG DANILO DE LA FUENTE, BELEN DIAZ-FLORES, MANUEL MARIO GUZMAN, ALAN JAZMINEZ, EDWIN LOPEZ, ALFREDO MANSOS, ALEX MARCELINO, ELIZABETH PROTACIO-MARCELINO, JOSEPH OLAYER, CARLOS PALMA, MARCO PALO, ROLANDO SALUTIN, BENJAMIN SESGUNDO, ARTURO TABARA, EDWIN TULALIAN and REBECCA TULALIAN petitioners, vs. MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON, COL. ROLANDO ABADILLA, COL. GERARDO B. LANTORIA, COL. GALILEO KINTANAR, 1ST LT. COL. PANFILO M. LACSON, MAJ. RODOLFO AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT. PEDRO TANGO, 1ST LT. ROMEO RICARDO, 1ST LT. RAUL BACALSO, MSGT BIENVENIDO BALABA and REGIONAL TRIAL COURT, National Capital Judicial Region, Branch XCV (95), Quezon City, respondents. YAP, J.: This petition for certiorari presents vital issues not heretofore passed upon by this Court. It poses the question whether the suspension of the privilege of the writ of habeas corpus bars a civil action for damages for illegal searches conducted by military personnel and other violations of rights and liberties guaranteed under the Constitution. If such action for damages may be maintained, who can be held liable for such violations: only the military personnel directly involved and/or their superiors as well. This case stems from alleged illegal searches and seizures and other violations of the rights and liberties of plaintiffs by various intelligence units of the Armed Forces of the Philippines, known as Task Force Makabansa (TFM) ordered by General Fabian Ver "to conduct pre-emptive strikes against known communist-terrorist (CT) underground houses in view of increasing reports about CT plans to sow disturbances in Metro Manila," Plaintiffs allege, among others, that complying with said order, elements of the TFM raided several places, employing in most cases defectively issued judicial search warrants; that during these raids, certain members of the raiding party confiscated a number of purely personal items belonging to plaintiffs; that plaintiffs were arrested without proper warrants issued by the courts; that for some period after their arrest, they were denied visits of relatives and lawyers; that plaintiffs were interrogated in violation of their rights to silence and counsel; that military men who interrogated them employed threats, tortures and other forms of violence on them in order to obtain incriminatory information or confessions and in order to punish them; that all violations of plaintiffs constitutional rights were part of a concerted and deliberate plan to forcibly extract information and incriminatory statements from plaintiffs and to terrorize, harass and punish them, said plans being previously known to and sanctioned by defendants. Plaintiffs sought actual/compensatory damages amounting to P39,030.00; moral damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; exemplary damages in the amount of at least P150,000.00 each or a total of P3,000,000.00; and attorney's fees amounting to not less than P200,000.00. A motion to dismiss was filed by defendants, through their counsel, then Solicitor-General Estelito Mendoza, alleging that (1) plaintiffs may not cause a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2) assuming that the courts can entertain the present action, defendants are immune from liability for acts done in the performance of their official duties; and (3) the complaint states no cause of action against the defendants. Opposition to said motion to dismiss was filed by plaintiffs Marco Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and Rolando Salutin on July 8, 1983, and by plaintiffs Edwin Lopez, Manuel Mario Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo Tabara, Joseph Olayer, Rodolfo Benosa, Belen Diaz, Flores, Rogelio Aberca, Alex Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7, 1983, a Consolidated Reply was filed by defendants' counsel. Then, on November 8, 1983, the Regional Trial Court, National Capital Region, Branch 95, Judge Willelmo C. Fortun, Presiding, 1 issued a resolution granting the motion to dismiss. I sustained, lock, stock and barrel, the defendants' contention (1) the plaintiffs may not cause a judicial inquiry into the circumstances of their detention in the guise of a damage suit because, as to them, the privilege of the writ of habeas corpus is suspended; (2) that assuming that the court can entertain the present action, defendants are immune from liability for acts done in the performance of their official duties; and (3) that the complaint states no cause of action against defendants, since there is no allegation that the defendants named in the complaint confiscated plaintiffs' purely personal properties in violation of their constitutional rights, and with the possible exception of Major Rodolfo Aguinaldo and Sergeant Bienvenido Balabo committed acts of torture and maltreatment, or that the defendants had the duty to exercise direct supervision and control of their subordinates or that they had vicarious liability as employers under Article 2180 of the Civil Code. The lower court stated, "After a careful study of defendants' arguments, the court finds the same to be meritorious and must, therefore, be granted. On the other hand, plaintiffs' arguments in their opposition are lacking in merit." A motion to set aside the order dismissing the complaint and a supplemental motion for reconsideration was filed by the plaintiffs on November 18, 1983, and November 24, 1983, respectively. On December 9, 1983, the defendants filed a comment on the aforesaid motion of plaintiffs, furnishing a copy thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez, Antonio L. Rosales, Pedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas Aquino.

On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting himself from further proceeding in the case and leaving the resolution of the motion to set aside the order of dismissal to Judge Lising, "to preclude any suspicion that he (Judge Fortun) cannot resolve [the] aforesaid pending motion with the cold neutrality of an impartial judge and to put an end to plaintiffs assertion that the undersigned has no authority or jurisdiction to resolve said pending motion." This order prompted plaintiffs to reesolve an amplificatory motion for reconsideration signed in the name of the Free Legal Assistance Group (FLAG) of Mabini Legal Aid Committee, by Attys. Joker P. Arroyo, Felicitas Aquino and Arno Sanidad on April 12, 1984. On May 2,1984, the defendants filed a comment on said amplificatory motion for reconsideration. In an order dated May 11, 1984, the trial court, Judge Esteban Lising, Presiding, without acting on the motion to set aside order of November 8, 1983, issued an order, as follows: It appearing from the records that, indeed, the following plaintiffs, Rogelio Aberca, Danilo de la Fuente and Marco Palo, represented by counsel, Atty. Jose W. Diokno, Alan Jasminez represented by counsel, Atty. Augusta Sanchez, Spouses Alex Marcelino and Elizabeth Protacio-Marcelino, represented by counsel, Atty. Procopio Beltran, Alfredo Mansos represented by counsel, Atty. Rene Sarmiento, and Rolando Salutin, represented by counsel, Atty. Efren Mercado, failed to file a motion to reconsider the Order of November 8, 1983, dismissing the complaint, nor interposed an appeal therefrom within the reglementary period, as prayed for by the defendants, said Order is now final against said plaintiffs. Assailing the said order of May 11, 1984, the plaintiffs filed a motion for reconsideration on May 28,1984, alleging that it was not true that plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin failed to file a motion to reconsider the order of November 8, 1983 dismissing the complaint, within the reglementary period. Plaintiffs claimed that the motion to set aside the order of November 8, 1983 and the amplificatory motion for reconsideration was filed for all the plaintiffs, although signed by only some of the lawyers. In its resolution of September 21, 1984, the respondent court dealt with both motions (1) to reconsider its order of May 11, 1984 declaring that with respect to certain plaintiffs, the resolution of November 8, 1983 had already become final, and (2) to set aside its resolution of November 8, 1983 granting the defendants' motion to dismiss. In the dispositive portion of the order of September 21, 1984, the respondent court resolved: (1) That the motion to set aside the order of finality, dated May 11, 1984, of the Resolution of dismissal of the complaint of plaintiffs Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez Alex Marcelino, Elizabeth ProtacioMarcelino, Alfredo Mansos and Rolando Salutin is deed for lack of merit; (2) For lack of cause of action as against the following defendants, to wit: 1. Gen Fabian Ver 2. Col. Fidel Singson 3. Col. Rolando Abadilla 4. Lt. Col. Conrado Lantoria, Jr. 5. Col. Galileo Montanar 6. Col. Panfilo Lacson 7. Capt. Danilo Pizaro 8. 1 Lt Pedro Tango 9. Lt. Romeo Ricardo 10. Lt. Raul Bacalso the motion to set aside and reconsider the Resolution of dismissal of the present action or complaint, dated November 8, 1983, is also denied but in so far as it affects and refers to defendants, to wit: 1. Major Rodolfo Aguinaldo, and 2. Master Sgt. Bienvenido Balaba the motion to reconsider and set aside the Resolution of dismissal dated November 3, 1983 is granted and the Resolution of dismissal is, in this respect, reconsidered and modified. Hence, petitioners filed the instant petition for certiorari on March 15, 1985 seeking to annul and set aside the respondent court's resolution of November 8, 1983, its order of May 11, 1984, and its resolution dated September 21, 1984. Respondents were required to comment on the petition, which it did on November 9, 1985. A reply was filed by petitioners on August 26, 1986. We find the petition meritorious and decide to give it due course. At the heart of petitioners' complaint is Article 32 of the Civil Code which provides: ART. 32. Any public officer or employee, or any private individual who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process (7) of law; (8) The right to a just compensation when private property is taken for public use; (9) The right to the equal protection of the laws; (10) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;

(11) The liberty of abode and of changing the same; (12) The privacy of cmmunication and correspondence; (13) The right to become a member of associations or societies for purposes not contrary to law; (14) The right to take part in a peaceable assembly to petition the Government for redress of grievances; (15) The right to be free from involuntary servitude in any form; (16) The rigth of the accused against excessive bail; (17) The rigth of the aaccused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in behalf; (18) Freedom from being compelled to be a witness against ones self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (19) Freedom from excessive fines or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (20) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the against grieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield borrowing the words of Chief Justice Claudio Teehankee to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. "Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is made. Now this respect implies a maximum of faith, a minimum of Idealism. On going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls. 2 Seeking to justify the dismissal of plaintiffs' complaint, the respondents postulate the view that as public officers they are covered by the mantle of state immunity from suit for acts done in the performance of official duties or function In support of said contention, respondents maintain that Respondents are members of the Armed Forces of the Philippines. Their primary duty is to safeguard public safety and order. The Constitution no less provides that the President may call them "to prevent or supress lawless violence, invasion, insurrection or rebellion, or imminent danger thereof." (Constitution, Article VII, Section 9). On January 17, 1981, the President issued Proclamation No. 2045 lifting martial law but providing for the continued suspension of the privilege of the writ of habeas corpus in view of the remaining dangers to the security of the nation. The proclamation also provided "that the call to the Armed Forces of the Philippines to prevent or suppress lawless violence, insuitection rebellion and subversion shall continue to be in force and effect." Petitioners allege in their complaint that their causes of action proceed from respondent General Ver's order to Task Force Makabansa to launch pre-emptive strikes against communist terrorist underground houses in Metro Manila. Petitioners claim that this order and its subsequent implementation by elements of the task force resulted in the violation of their constitutional rights against unlawful searches, seizures and arrest, rights to counsel and to silence, and the right to property and that, therefore, respondents Ver and the named members of the task force should be held liable for damages. But, by launching a pre-emptive strike against communist terrorists, respondent members of the armed forces merely performed their official and constitutional duties. To allow petitioners to recover from respondents by way of damages for acts performed in the exercise of such duties run contrary to the policy considerations to shield respondents as public officers from undue interference with their duties and from potentially disabling threats of hability (Aarlon v. Fitzgerald 102 S. Ct. 2731-1 Forbes v. Chuoco Tiaco, 16 Phil. 634), and upon the necessity of protecting the performance of governmental and public functions from being harassed unduly or constantly interrupted by private suits (McCallan v. State, 35 Cal. App. 605; Metran v. Paredes, 79 Phil. 819). xxx xxx xxx The immunity of public officers from liability arising from the performance of their duties is now a settled jurisprudence Alzua v. Johnson, 21 Phil. 308; Zulueta v. Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40 L. Ed. 780, 16 S. Ct. 631; Barr v. Mateo, 360; Butz v. Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct. 2894; Scheuer v. Rhodes, 416 US 232; Forbes v. Chuoco Tiaco, supra; Miller v. de Leune, 602 F. 2d 198; Sami v. US, 617 F. 2d 755).

Respondents-defendants who merely obeyed the lawful orders of the President and his call for the suppression of the rebellion involving petitioners enjoy such immunity from Suit. 3 We find respondents' invocation of the doctrine of state immunity from suit totally misplaced. The cases invoked by respondents actually involved acts done by officers in the performance of official duties written the ambit of their powers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield: 4 No one can be held legally responsible in damages or otherwise for doing in a legal manner what he had authority, under the law, to do. Therefore, if the Governor-General had authority, under the law to deport or expel the defendants, and circumstances justifying the deportation and the method of carrying it out are left to him, then he cannot be held liable in damages for the exercise of this power. Moreover, if the courts are without authority to interfere in any manner, for the purpose of controlling or interferring with the exercise of the political powers vested in the chief executive authority of the Government, then it must follow that the courts cannot intervene for the purpose of declaring that he is liable in damages for the exeercise of this authority. It may be that the respondents, as members of the Armed Forces of the Philippines, were merely responding to their duty, as they claim, "to prevent or suppress lawless violence, insurrection, rebellion and subversion" in accordance with Proclamation No. 2054 of President Marcos, despite the lifting of martial law on January 27, 1981, and in pursuance of such objective, to launch pre- emptive strikes against alleged communist terrorist underground houses. But this cannot be construed as a blanket license or a roving commission untramelled by any constitutional restraint, to disregard or transgress upon the rights and liberties of the individual citizen enshrined in and protected by the Constitution. The Constitution remains the supreme law of the land to which all officials, high or low, civilian or military, owe obedience and allegiance at all times. Article 32 of the Civil Code which renders any public officer or employee or any private individual liable in damages for violating the Constitutional rights and liberties of another, as enumerated therein, does not exempt the respondents from responsibility. Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute. This is not to say that military authorities are restrained from pursuing their assigned task or carrying out their mission with vigor. We have no quarrel with their duty to protect the Republic from its enemies, whether of the left or of the right, or from within or without, seeking to destroy or subvert our democratic institutions and imperil their very existence. What we are merely trying to say is that in carrying out this task and mission, constitutional and legal safeguards must be observed, otherwise, the very fabric of our faith will start to unravel. In the battle of competing Ideologies, the struggle for the mind is just as vital as the struggle of arms. The linchpin in that psychological struggle is faith in the rule of law. Once that faith is lost or compromised, the struggle may well be abandoned. We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the suspension of the privilege of the writ of habeas corpus. Respondents contend that "Petitioners cannot circumvent the suspension of the privilege of the writ by resorting to a damage suit aimed at the same purpose-judicial inquiry into the alleged illegality of their detention. While the main relief they ask by the present action is indemnification for alleged damages they suffered, their causes of action are inextricably based on the same claim of violations of their constitutional rights that they invoked in the habeas corpus case as grounds for release from detention. Were the petitioners allowed the present suit, the judicial inquiry barred by the suspension of the privilege of the writ will take place. The net result is that what the courts cannot do, i.e. override the suspension ordered by the President, petitioners will be able to do by the mere expedient of altering the title of their action." We do not agree. We find merit in petitioners' contention that the suspension of the privilege of the writ of habeas corpus does not destroy petitioners' right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension does not render valid an otherwise illegal arrest or detention. What is suspended is merely the right of the individual to seek release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty. Moreover, as pointed out by petitioners, their right and cause of action for damages are explicitly recognized in P.D. No. 1755 which amended Article 1146 of the Civil Code by adding the following to its text: However, when the action (for injury to the rights of the plaintiff or for a quasi-delict) arises from or out of any act, activity or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year. Petitioners have a point in contending that even assuming that the suspension of the privilege of the writ of habeas corpus suspends petitioners' right of action for damages for illegal arrest and detention, it does not and cannot suspend their rights and causes of action for injuries suffered because of respondents' confiscation of their private belongings, the violation of their right to remain silent and to counsel and their right to protection against unreasonable searches and seizures and against torture and other cruel and inhuman treatment. However, we find it unnecessary to address the constitutional issue pressed upon us. On March 25, 1986, President Corazon C. Aquino issued Proclamation No. 2, revoking Proclamation Nos. 2045 and 2045-A and lifting the suspension of the privilege of the writ of habeas corpus. The question therefore has become moot and academic. This brings us to the crucial issue raised in this petition. May a superior officer under the notion of respondent superior be answerable for damages, jointly and severally with his subordinates, to the person whose constitutional rights and liberties have been violated? Respondents contend that the doctrine of respondent superior is applicable to the case. We agree. The doctrine of respondent superior has been generally limited in its application to principal and agent or to master and servant (i.e. employer and employee) relationship. No such relationship exists between superior officers of the military and their subordinates. Be that as it may, however, the decisive factor in this case, in our view, is the language of Article 32. The law speaks of an officer or employee or person 'directly' or "indirectly" responsible for the violation of the constitutional rights and liberties of another. Thus, it is not the actor alone (i.e. the one directly responsible) who must answer for damages under Article 32; the person indirectly responsible has also to answer for the damages or injury caused to the aggrieved party.

By this provision, the principle of accountability of public officials under the Constitution 5 acquires added meaning and asgilrnes a larger dimension. No longer may a superior official relax his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of the factors that propelled people power in February 1986 was the widely held perception that the government was callous or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be go naive to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should nonetheless be made clear in no ones terms that Article 32 of the Civil Code makes the persons who are directly, as well as indirectly, responsible for the transgression joint tortfeasors. In the case at bar, the trial court dropped defendants General Fabian Ver, Col. Fidel Singson, Col. Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, lst Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the acts of their subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba were kept as defendants on the ground that they alone 'have been specifically mentioned and Identified to have allegedly caused injuries on the persons of some of the plaintiff which acts of alleged physical violence constitute a delict or wrong that gave rise to a cause of action. But such finding is not supported by the record, nor is it in accord with law and jurisprudence. Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article 19. to 'acts of alleged physical violence" which constituted delict or wrong. Article 32 clearly specifies as actionable the act of violating or in any manner impeding or impairing any of the constitutional rights and liberties enumerated therein, among others 1. Freedom from arbitrary arrest or illegal detention; 2. The right against deprivation of property without due process of law; 3. The right to be secure in one's person, house, papers and effects against unreasonable searches and seizures; 4. The privacy of communication and correspondence; 5. Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make a confession, except when the person confessing becomes a state witness. The complaint in this litigation alleges facts showing with abundant clarity and details, how plaintiffs' constitutional rights and liberties mentioned in Article 32 of the Civil Code were violated and impaired by defendants. The complaint speaks of, among others, searches made without search warrants or based on irregularly issued or substantially defective warrants; seizures and confiscation, without proper receipts, of cash and personal effects belonging to plaintiffs and other items of property which were not subversive and illegal nor covered by the search warrants; arrest and detention of plaintiffs without warrant or under irregular, improper and illegal circumstances; detention of plaintiffs at several undisclosed places of 'safehouses" where they were kept incommunicado and subjected to physical and psychological torture and other inhuman, degrading and brutal treatment for the purpose of extracting incriminatory statements. The complaint contains a detailed recital of abuses perpetrated upon the plaintiffs violative of their constitutional rights. Secondly, neither can it be said that only those shown to have participated "directly" should be held liable. Article 32 of the Civil Code encompasses within the ambit of its provisions those directly, as well as indirectly, responsible for its violation. The responsibility of the defendants, whether direct or indirect, is amply set forth in the complaint. It is well established in our law and jurisprudence that a motion to dismiss on the ground that the complaint states no cause of action must be based on what appears on the face of the complaint. 6 To determine the sufficiency of the cause of action, only the facts alleged in the complaint, and no others, should be considered. 7 For this purpose, the motion to dismiss must hypothetically admit the truth of the facts alleged in the complaint. 8 Applying this test, it is difficult to justify the trial court's ruling, dismissing for lack of cause of action the complaint against all the defendants, except Major Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba. The complaint contained allegations against all the defendants which, if admitted hypothetically, would be sufficient to establish a cause or causes of action against all of them under Article 32 of the Civil Code. This brings us to the last issue. Was the trial court correct in dismissing the complaint with respect to plaintiffs Rogelio Aberca, Danilo de la Puente, Marco Palo, Alan Jazminez, Alex Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando Salutin, on the basis of the alleged failure of said plaintiffs to file a motion for reconsideration of the court's resolution of November 8, 1983, granting the respondent's motion to dismiss? It is undisputed that a timely motion to set aside said order of November 8, 1983 was filed by 'plaintiffs, through counsel. True, the motion was signed only by Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido; Atty. Antonio Rosales, counsel for Edwin Lopez and Manuel Martin Guzman; Atty. Pedro B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V. Sanidad, counsel for Arturo Tabara; Atty. Felicitas S. Aquino, counsel for Joseph Olayer; and Atty. Alexander Padilla, counsel for Rodolfo Benosa. But the body of the motion itself clearly indicated that the motion was filed on behalf of all the plaintiffs. And this must have been also the understanding of defendants' counsel himself for when he filed his comment on the motion, he furnished copies thereof, not just to the lawyers who signed the motion, but to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran, Rene Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales, Pedro Efla Jr., Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas S. Aquino. In filing the motion to set aside the resolution of November 8, 1983, the signing attorneys did so on behalf of all the plaintiff. They needed no specific authority to do that. The authority of an attorney to appear for and in behalf of a party can be assumed, unless questioned or challenged by the adverse party or the party concerned, which was never done in this case. Thus, it was grave abuse on the part of respondent judge to take it upon himself to rule that the motion to set aside the order of November 8, 1953 dismissing the complaint was filed only by some of the plaintiffs, when by its very language it was clearly intended to be filed by and for the benefit of all of them. It is obvious that the respondent judge took umbrage under a contrived technicality to declare that the dismissal of the complaint had already become final with respect to some of the plaintiffs whose lawyers did not sign the motion for reconsideration. Such action tainted with legal infirmity cannot be sanctioned.

Accordingly, we grant the petition and annul and set aside the resolution of the respondent court, dated November 8, 1983, its order dated May 11, 1984 and its resolution dated September 21, 1984. Let the case be remanded to the respondent court for further proceedings. With costs against private respondents. SO ORDERED. Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur. Gutierrez, Jr., J., concur in the result. Padilla, J., took no part. Separate Opinions TEEHANKEE, C.J., concurring: The Court's judgment at bar makes clear that all persons, be they public officers or employees, or members of the military or police force or private individuals who directly or indirectly obstruct, defeat, violate or in any manner impede or impair the constitutional rights and civil liberties of another person, stand liable and may be sued in court for damages as provided in Art. 32 of the Civil Code. The case at bar specifically upholds and reinstates the civil action for damages filed in the court below by petitioners-plaintiffs for illegal searches conducted by military personnel and other violations of their constitutional rights and liberties. At the same time it rejects the automatic application of the principle of respondeat superior or command responsibility that would hold a superior officer jointly and severally accountable for damages, including moral and exemplary, with his subordinates who committed such transgressions. However, the judgment gives the caveat that a superior officer must not abdicate his duty to properly supervise his subordinates for he runs the risk of being held responsible for gross negligence and of being held under the cited provision of the Civil Code as indirectly and solidarily accountable with the tortfeasor. The rationale for this rule of law was best expressed by Brandeis in wise: "In a government of laws, existence of the government be imperilled following it fails to observe the law scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes the law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy. To declare that in the administration of criminal law the end justifies the means ... would bring terrible retribution." 1 As the writer stress in Hildawa vs. Enrile 2 Which Was an action to enjoin the operations of the dreaded secret marshals during the past regime, 'In a democratic state, you don't stoop to the level of criminals. If we stoop to what they do, then we're no better than they ... there would be no difference. ... The Supreme Court stands as the guarantor of the Constitutional and human rights of all persons within its jurisdiction and cannot abdicate its basic role under the Constitution that these rights be respected and enforced. The spirit and letter of the Constitution negates as contrary to the basic precepts of human rights and freedom that a person's life be snuffed out without due process in a split second even if he is caught in flagrante delicto unless it was caned for as an act of self-defense by the law agents using reasonable means to prevent or repel an unlawful aggression on the part of the deceased. Needless to say, the criminal acts of the "Sparrow Units" or death squads of the NPA which have infutrated the cities and suburbs and performed their despicable killings of innocent civilians and military and police officers constitute an equally perverse violation of the sanctity of human life and must be severely condemned by all who adhere tothe Rule of the Law. It need only be pointed out that one of the first acts of the present government under President Corazon C. Aquino after her assumption of office in February, 1986 was to file our government's ratification and access to all human rights instruments adopted under the auspices of the United Nations, declaring thereby the government's commitment to observe the precepts of the United Nations Charter and the Universal Declaration of Human Rights. More than this, pursuant to our Constitution which the people decisively ratified on February 2, 1987, the independent office of the Commission on Human Rights hats been created and organized with ample powers to investigate human rights violations and take remedial measures against all such violations by the military as well as by the civilian groups. Separate Opinions TEEHANKEE, C.J., concurring: The Court's judgment at bar makes clear that all persons, be they public officers or employees, or members of the military or police force or private individuals who directly or indirectly obstruct, defeat, violate or in any manner impede or impair the constitutional rights and civil liberties of another person, stand liable and may be sued in court for damages as provided in Art. 32 of the Civil Code. The case at bar specifically upholds and reinstates the civil action for damages filed in the court below by petitioners-plaintiffs for illegal searches conducted by military personnel and other violations of their constitutional rights and liberties. At the same time it rejects the automatic application of the principle of respondeat superior or command responsibility that would hold a superior officer jointly and severally accountable for damages, including moral and exemplary, with his subordinates who committed such transgressions. However, the judgment gives the caveat that a superior officer must not abdicate his duty to properly supervise his subordinates for he runs the risk of being held responsible for gross negligence and of being held under the cited provision of the Civil Code as indirectly and solidarily accountable with the tortfeasor. The rationale for this rule of law was best expressed by Brandeis in wise: "In a government of laws, existence of the government be imperilled following it fails to observe the law scrupulously. Our government is the potent omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes the law breaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy. To declare that in the administration of criminal law the end justifies the means ... would bring terrible retribution." 1 As the writer stress in Hildawa vs. Enrile 2 Which Was an action to enjoin the operations of the dreaded secret marshals during the past regime, 'In a democratic state, you don't stoop to the level of criminals. If we stoop to what they do, then we're no better than they ... there would be no difference. ... The Supreme Court stands as the guarantor of the Constitutional and human rights of all persons within its jurisdiction and cannot abdicate its basic role under the Constitution that these rights be respected and enforced. The spirit and letter of the

Constitution negates as contrary to the basic precepts of human rights and freedom that a person's life be snuffed out without due process in a split second even if he is caught in flagrante delicto unless it was caned for as an act of self-defense by the law agents using reasonable means to prevent or repel an unlawful aggression on the part of the deceased. Needless to say, the criminal acts of the "Sparrow Units" or death squads of the NPA which have infutrated the cities and suburbs and performed their despicable killings of innocent civilians and military and police officers constitute an equally perverse violation of the sanctity of human life and must be severely condemned by all who adhere tothe Rule of the Law. It need only be pointed out that one of the first acts of the present government under President Corazon C. Aquino after her assumption of office in February, 1986 was to file our government's ratification and access to all human rights instruments adopted under the auspices of the United Nations, declaring thereby the government's commitment to observe the precepts of the United Nations Charter and the Universal Declaration of Human Rights. More than this, pursuant to our Constitution which the people decisively ratified on February 2, 1987, the independent office of the Commission on Human Rights hats been created and organized with ample powers to investigate human rights violations and take remedial measures against all such violations by the military as well as by the civilian groups.