LTL mid 2.docx

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Issuance of warrant of arrest

A lot of people might know what an arrest is. Under our law the definition1of an arrest is the

taking of a person into custody in order that he may be bound to answer for the commission of an

offense. It is made by an actual restrain of a person to be arrested or by his submission to the custody of

the person making the arrest. This is an intrusion of our freedom hence a person cannot be just arrested

anytime there should be lawful causes such as but not exclusively is when a warrant of arrest is issued

against a person. All persons are protected against unreasonable arrest and his is manifested in the

Constitution, According to Sec. 2 of Article III of the Constitution of the Philippines

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. (Emphasis supplied)

The words determined personally have been the biggest issue for several cases decided by the

Supreme Court and the Court has been consistent with the interpretation of this provision.

It was first interpreted in the case of Soliven v Makasiar2 in which the petitioner calls for the

interpretation of the said provision of the Constitution the court held that the interpretation of the said

provision is that

What the Constitution underscores is the exclusive and personal responsibility of the issuing

judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence

of probable cause for the issuance of a warrant of arrest, the judge is not required to personally

examine the complainant and his witnesses. Following established doctrine and procedure, he

shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal

regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or

1Sec. 1 Rule 113 Rules of Court

2G.R. No. 82585, November 14, 1988


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(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and

require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion

as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the

preliminary examination and investigation of criminal complaints instead of concentrating on

hearing and deciding cases filed before their courts.

Now, can a judge issue a warrant of arrest by relying on the resolution of the prosecutor that a probable

exist? The Supreme Court disagreed as manifested in the case of Lim v Felix3 in which the Petitioners

Vicente Lim, Sr. and Susana Lim filed with the respondent court several motions and manifestations,

among others was an order be issued requiring the transmittal of the initial records of the preliminary

inquiry or investigation conducted by the Municipal Judge Barsaga of Masbate for the best

enlightenment of this Honorable Court in its personal determination of the existence of a probable

cause or prima facie evidence as well as its determination of the existence of guilt, pursuant to the

mandatory mandate of the constitution that no warrant shall issue unless the issuing magistrate shall

have himself been personally convinced of such probable cause. Respondent court issued an order

denying for lack of merit the motions and manifestations and issued warrants of arrest against the

accused including the petitioners herein.

The Court held that 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 notpersonallydetermined 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. And that The extent of the Judge's

personal examination of the report and its annexes depends on the circumstances of each case. We

cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge

has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the

Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the

Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He

3G.R. Nos. 94054-57, February 19, 1991.


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should call for the complainant and witnesses themselves to answer the court's probing questions when

the circumstances of the case so require.

This was reiterated in a relatively recent case of Okabe v. Gutierrez4 in which during the preliminary

investigation, the complainant submitted the affidavit of her witnesses and other documentary

evidence. After the requisite preliminary investigation, 2nd Assistant City Prosecutor came out with a

resolution, finding probable cause for estafa against the petitioner which was subsequently approved by

the city prosecutor. The trial court then issued a warrant of arrest with a recommended bond of

P40,000. The petitioner filed a verified motion for judicial determination of probable cause and to defer

proceedings/arraignment, alleging that the only documents appended to the Information submitted by

the investigating prosecutor were respondent affidavit-complaint for estafa and the resolution of the

investigating prosecutor; the affidavits of the witnesses of the complainant, the respondents counter-

affidavit and the other evidence adduced by the parties are not attached thereto.

It was held that

In determining the existence or non-existence of probable cause for the arrest of the accused,

the RTC judge may rely on the findings and conclusions in the resolution of the investigating

prosecutor finding probable cause for the filing of the Information. After all, as the Court held

in Webb v. De Leon, the judge just personally reviews the initial determination of the

investigating prosecutor finding a probable cause to see if it is supported by substantial

evidence. However, in determining the existence or non-existence of probable cause for the

arrest of the accused, the judge should not rely solely on the said report. The judge should

consider not only the report of the investigating prosecutor but also the affidavit/affidavits and

the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses,

as well as the transcript of stenographic notes taken during the preliminary investigation, if any,

submitted to the court by the investigating prosecutor upon the filing of the Information.

After the personal determination of probable cause of the judge the following are the next step as

manifested in the Sec 6. Rule 112 of the Rules of Court

4G.R. No. 150185, May 27, 2004.


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the judge should not personally determine the existence of probable cause it would constitute to a

violation of the right of the accused and frustrate the ends of justice.

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