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 …
NARVASA, J.:
The chief issue raised by the petitioners in this case is whether
or not Section 143 of the Local Government Code[1]
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order the arrest of the accused, was repealed by the 1985 Rules on Criminal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 amd 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
“backup 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 soldiers 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 Commander[14]
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
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 arrrest 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 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 II, 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: Peo 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 Judge 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 1964 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 rest — cannot 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-existent;[23] 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 1798, 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 L ED 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 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 involve 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
satisfiedafter 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 examinations 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 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.
“(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 to 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 warrants[43]
— 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 [5],
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 law-making 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 officials 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 fulfilment 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 preliminary 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 courts.[54]
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
altered. 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 112 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.
” * * *
” * * *.
“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 as 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 contents 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 testimony[62]
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 barrenness.
Two witnesses, Godofredo Hoyo-A and Elpidio Carbajosa, advert in
their affidavits[63]
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, ** invectives 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
ang 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 theirs, 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 Gempesela, 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., no part.
[1]
B.P. Blg. 337, eff. Feb. 10, 1983
[2]
Rollo, p. 85
[3]
Annex B, petition; rollo, p. 73
[4]
Annex A, id.; rollo, pp. 74-75
[5]
Annex A-1, id.; rollo, pp. 76-78
[6]
Annex 1-d, “Comment to the Petition” of respondent Judge Ignalaga; rollo,
pp. 79-81
[7]
Annex 1-e, id.; rollo, p. 82
[8]
Annex 1-f, id.; rollo, p. 83
[9]
Annex 1-g, id.; rollo, p. 84
[10]
Rollo, p. 4
[11]
Id., pp. 4-5
[12]
See footnote No. 2, and rollo, p. 8
[13]
Rollo, p. 28
[14]
Id., p. 92-93
[15]
Id., pp. 95-98
[16]
Petitioners’ Annex F, rollo, pp. 32-36; Respondent Judge’s Annex 7, rollo,
pp. 99-103
[17]
Rollo, pp. 2-3, 16
[18]
Id., pp. 2-17; 136-151
[19]
Id., p. 9.
[20]
1973 Constitution
[21]
Rollo, pp. 10-12, 137-139
[22]
Id., p. 140
[23]
Id., pp. 140-143
[24]
Id., pp. 13-15; 143-148
[25]
Id., pp. 64-104 (filed Nov. 13, 1985); see also, the comment filed on
November 13, 1985 by the other respondents, Capt. Modesto Sanson, Capt. Rafael
Jugan, and Mayor Braulio Lumayno: rollo,
pp. 59-62
[26]
Id., p. 68
[27]
Id., pp. 67-68
[28]
Id., pp. 68-70
[29]
Id., p. 70
[30]
Id.
[31]
Id., pp. 115-124
[32]
Id., pp. 115-116
[33]
Id., pp. 116-118
[34]
Id., pp. 118-122
[35]
Id., pp. 122-124
[36]
Compliance dated June 4, 1986; rollo, pp. 168-169
[37]
Rollo., p. 172
[38]
Rule 112, emphasis supplied
[39]
Sec. 2, Rule 112
[40]
Rule 112, emphasis supplied
[41]
Emphasis supplied. As will be noted, the
reference to “such other responsible
officer as may be authorized by law” is echoed in Sec. 2, Rule 112 earlier
cited [footnote No. 38], which mentions, as among those authorized to conduct
preliminary investigation, “Such other officers as may be authorized by
law.”
[42]
Emphasis supplied
[43]
SEE footnote No. 18
[44]
Petitioners’ Memorandum, p. 5; rollo, p. 140
[45]
See Martin, The New Constitution, etc., with Notes & Comments (1973 ed.),
pp. 485-486; Feria, Civil Procedure (1969 ed.), p. 3
[46] Sec. 13, ART. VIII, 1935 Constitution
[47]
Sec. 13, ART. VIII, 1935 Constitution; Sec. 5 [5], ART. X, 1973 Constitution; Sec.
5 [5], ART. VIII, 1987 Constitution; SEE, HOWEVER. SEC. 10, ART. XVIII
[48]
Sec. 5, m, Rule 131, Rules of Court
[49]
See p. 2, respondent Judge’s Comment, at p. 65 of the rollo
[50]
See Annex C, petition, rollo, p. 26
[51]
Sec. 143, (2), Local Government Code, supra; see also, footnote No. 15
[52]
Rollo, pp. 137-140; see footnotes No. 19-21
[53]
See footnote No. 40 and related text
[54]
U.S. v. Ten Yu, 24 Phil. 1; Morfe v. Mutuc, 22 SCRA 424; Province
of Pangasinan v. Secretary of Public Works and Communications, 30 SCRA
134; Sand v. Abad Santos Educational Institution, 58 SCRA 33
[55]
Rollo, p. 138
[56]
See footnote No. 41 and related text, supra. The phrase, “such other responsible
officer as may be authorized by law,” is also found in Section 2, Rule
112 of the 1985 Rules on Criminal Procedure, which enumerates the officers
authorized to conduct preliminary investigation. But the 1935 Constitution (Sec. 3, Art. III),
as already earlier noted, also restricted the power to “the judge.”
[57]
Sec. 2, Rule 112, 1985 Rules on Crim. Procedure
[58]
Sec. 2, ART. III, 1987 Constitution; see Sayo v. Chief of Police of
Manila, 80 Phil. 859, 866-867
[59]
Rollo, pp. 143-148; see footnote No. 23
[60]
Id., pp. 122-124
[61]
Annex A-1, petition: rollo, pp.
21-23
[62]
Annexes A and A-1, petition; Annexes 1-b and 1-c, Judge Ignalaga’s Comment
[63]
Annexes 1-d and 1-f, respectively, of Judge Ignalaga’s Comment
[64]
Q & A No. 09, Annex 1-d
[65]
Q & A No. 13, id.
[66]
Q & A No. 16, id.
[67]
Q & A No. 17, id.
[68]
Last paragraph, Annex 1-f
[69]
Annex 1-g; rollo, p. 84
[70]
Annex 1-e; rollo, p. 82