G.R. Nos. 94054-57 Case Digest

G.R. Nos. 94054-57 February 19, 1991

Vicente Lim, Sr. and Mayor Susana Lim, petitioners

vs Hon. Nemesio Felix and Hon. Antonio Alfane, respondents

G.R. Nos. 94266-69 February 19, 1991

Jolly Fernandez, Florencio Fernandez, Jr., Nonilon Bagalihog, Mayor Nestor Lim and Mayor Antonio Kho, petitioners

vs Hon. Nemesio Felix and Prosecutor Antonio Alfane, respondents

Ponente: Gutierrez, Jr.

Facts:

March 17, 1989, at the Masbate Domestic  Airport, Congressman Espinosa, Sr. and his escorts were attacked and killed by a lone assassin. Only Dante Siblante survived although he suffered a gunshot wound. Investigation of the incident was made.

Thereafter, for the purpose of PI, the designated investigator Tandiado, filed an amended complaint with MTC of Masbate accusing the petitioners of the crime multiple murder and frustrated murder in connection with the airport incident.

After conducting PI, the court issued an order stating that: ". . . after weighing the affidavits and answers given by the witnesses for the prosecution during the preliminary examination in searching questions and answers, concludes that a probable cause has been established for the issuance of a warrant of arrest of named accused in the amended complaint, namely..."

Issue: May a Judge without ascertaining the facts through his own personal determination and relying solely on the certification or recommendation of a prosecutor that a probable cause exists issue a warrant of arrest?

Held:

1973 Constitution which provides:

. . . 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

The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule 112 of the Rules of Court.

Warrant of arrest, when issued. — If the judge be satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his arrest.

If a Judge relies solely on the certification of the Prosecutor as in this case where all the records of the investigation are in Masbate, he or she has not personally determined probable cause. The determination is made by the Provincial Prosecutor. The constitutional requirement has not been satisfied. The Judge commits a grave abuse of discretion.

Judge does not have to personally examine the complainant and his witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the Judge.

We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers. The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest.

Indubitably, the respondent Judge committed a grave error when he relied solely on the Prosecutor's certification and issued the questioned Order dated July 5, 1990 without having before him any other basis for his personal determination of the existence of a probable cause.