SECRETARY OF JUSTICE, COMPLAINANT, VS. HONORABLE PIO MARCOS, DISTRICT JUDGE, SECOND JUDICIAL DISTRICT, CFI OF BENGUET AND BAGUIO CITY, BRANCH I, STATIONED AT THE CITY OF BAGUIO,…

The administrative complaint for gross inefficiency filed by
Secretary of Justice Vicente Abad Santos against the
then respondent Judge Pio Marcos of the Court of
First Instance of Benguet and Baguio
City, now retired after having reached the age of seventy,^[1] arose from
the issuance of a search warrant past 12:00 midnight of April 4, 1971, and
thereafter served and executed approximately two hours later, long before
dawn.  The grounds alleged were that the
search warrant was not limited to one offense covering both illegal possession
of firearms and violation of Central Bank rules and regulations; that it did
not particularly describe the property to be seized; that he did not carefully
examine under oath the applicant and his witnesses; that articles not mentioned
were taken; and that thereafter the return and the inventory although appearing
to have been prepared on said date were not actually submitted to respondent
Judge until April 13, 1971 and the objects seized delivered only about a week
later on April 19.

There was a lengthy and detailed answer submitted by respondent
Judge, the essence of which was substantial compliance with the requirements of
the Constitution and the Rules of Court, the procedure followed by him
conforming to the practice he found quite conducive to fruitful results in the
campaign against smuggling, resulting in intensified tax collection.  He asserted that he is legally and morally
convinced of his innocence of the charge of gross inefficiency, his actuations
being guided by the prescriptions of the Constitution and the rules or the
spirit thereof as well as the best interest of the State.  He then alleged that the application for the
search warrant was filed by the Chief of Police of Baguio
City, Colonel Victorino S. Calano,
duly supported by the affidavit of one Romeo Amansec,
who was subjected to intensive examination and interrogation, the other
witness, one Sergeant Victorino de Vera of the
Philippine Constabulary, also being thus examined and interrogated, all three
of them describing with particularity and in detail the place to be searched
and the things to be seized; that the applicant and his witnesses arrived at
his place at about 10:30 p.m. and the warrant issued at 11:45, the promptness
with which he acted being due to the urgency of the matter; that there was only
one specific offense therein covered, namely robbery in band with the use of a
firearm then in the possession of the alleged leader Rogelio Roxas, who had allegedly taken by force a treasure in the
form of a golden Buddha; that after the interrogation, he was convinced that
the offense of robbery in band was committed and that the Buddha had to be
seized before dawn as it would be taken out of Baguio
and smuggled out of the country; that the delay in the delivery to the court
could be explained by the conclusion reached by him that from the angle of
security and safety, the articles seized should be kept and guarded by the CIS
agents at Camp Holmes, only a few kilometers from Baguio,
under tight security and personal responsibility of Colonel Calano;
and that as to those things taken or seized not covered by the warrant, the
persons aggrieved could file a motion for their return, his duty to act on the matter starting to commence only when it
is submitted judicially.  Respondent
Judge prayed that the complaint be dismissed for lack of merit.

The complaint and the
answer were then referred for investigation, report and recommendation to the
then Associate, now Acting Presiding, Justice Magno
S. Gatmaitan of the Court of Appeals.  He conducted a thorough investigation and
thereafter submitted an exhaustive and comprehensive report on May 31,
1974.  The grounds alleged in the complaint to show
inefficiency he classified into the following: 
The first, the failure to follow the legal procedure by respondent Judge
when he issued the warrant; the second, the defects manifest on the face
thereof as two offenses were included and the description of the premises to be
searched and the objects to be seized being too general; the third, the absence
of a probable cause; and the fourth, the articles seized having included
objects not mentioned in the warrant and the delay in the delivery thereof to
respondent Judge.

As to the first ground,
the failure to follow the legal procedure by respondent Judge when he issued
the warrant, Justice Gatmaitan stated the following
in his Report: “There can be no question that from a reading of the
application for search warrant by Col. Calano, and
the affidavit by witness Romeo Amansec, as well as
the search warrant itself, it can be deduced that—the deposition in writing of
Sgt. De Vera had not been taken contrary to Sec. 4 of Rule 126; but
Investigator must agree with Defense that Respondent did examine under oath,
both applicant, Col. Calano, and witnesses, Romeo Amansec and Sgt. De Vera; for Investigator notes that
complainant Secretary of Justice himself presented as his sole witness, Clerk
of Court, Fernando R. Romero, and this witness declared that, ‘Q. Would you be
able to tell us more or less what sorts of questions were propounded by Judge
Marcos by way of interrogating these witnesses? A. I cannot repeat the words
because it was a long time ago, but if I may be permitted to make a gist I may
be able to relate.  Q. Please do so.  A. After administering the oath individually
to Col. Calano, Amansec and
de Vera, after giving their names and other personal circumstances, he dealt on
the questions “What were those articles that were the subject of the
application? And they described the articles, what I heard are a golden Buddha,
a rifle with some ammunitions.” ‘ This being the case, Investigator is
bound to accept this testimony and must hold that outside of the literal defect
in that Respondent had not taken the written deposition of Sgt. de Vera, the
proceedings he had adopted were not fatally wrong; in fact, it might as well be
added that there is something very probable and therefore credible, in the
testimony of this witness that time was of the extreme essence, the urgency of
the situation could no longer permit further going back to the Office of the
Clerk of Court for renewed typing of application and affidavits and warrant, at
any rate, since it was complainant Secretary of Justice himself who presented
Clerk of Court Romero, he should be bound by latter’s testimony; * * *.”^[2]
As to the second ground consisting of the warrant itself being defective
because it was issued for two offenses and the description of the premises to
be searched and the objects to be seized being too general, Justice Gatmaitan discussed the matter thus: “Since the
warrant really stated that it was issued for, ‘Illegal possession of firearms
and Violation of Central Bank Rules and Regulations,’ and the body recited
that, ‘Accused Rogelio Roxas illegally possess[es] firearms and ammunition without license or permit to
possess the same and a golden Buddha which he is keeping and concealing at his
premises at No. 47 Ledesma St., Baguio
City in violation of Central Bank Rules and Regulations; Investigator must
concur with complainant that this warrant violated Sec. 3 of Rule 126 which
provides that, ‘No Search warrant shall issue for more than one specific
offense. ‘Investigator must even add that the particular Central Bank circular
or regulation is not determined; as to the attack on the description of the
premises to be searched and the objects to be seized, what Investigator
understands is that the test of a good description for purposes of sufficiency
of the warrant is that it be one that would not permit seizure of the wrong
property, * * * indeed the very jurisprudence cited by Complainant * * * where
the search warrant described the objects as, ‘books, documents, receipts,
lists, chits and other papers used by him in connection with his activities as money
lender charging a usurious rate of interest in violation of the law,’ this
description was held to be good enough, the Supreme Court reasoning, ‘Taking
into consideration the nature of the articles so described, it is clear that no
other more adequate and detailed description could be given, particularly
because it is difficult to give
a particular description of the contents thereof.  The description so made substantially
complies with the legal provisions because the officer of the law who executed the
warrant was thereby placed in a position enabling him to identify the articles
in question, which he did,’ * * * so that here, since certainly, no one would
be mistaken in identifying the Buddha, whose image is well known, and even the
firearms and ammunition because these were those without permit to possess, and
all located at No. 47 Ledesma St., Baguio City, so far
as description was concerned, the search warrant perhaps could not be said to
have suffered fatal defects.”^[3]
As to the third charge that the search warrant was issued without probable
cause, Justice Gatmaitan started with the affidavit
of Amansec showing that “‘on or about 6:30 a.m.
of March 31, 1971, I went to Baguio City and while I
passed by a house at No. 47 Ledesma Street, Baguio City I was attracted by several persons inside the
house; That I peeped from outside the house and when the curtain was moved I
saw a Buddha that was inside the house; That I observed what was going on
inside the house and I heard someone say that the golden Buddha was actually
for sale and when I observed them closer I overheard that it was being offered
for sale for 100, 000 pesos; That I peeped
again and I actually saw for myself again the Buddha and I heard one of the
persons inside whom I later found out to be Mr. Rogelio Roxas
that it was a golden Buddha but that a down payment was needed; That I am
executing this affidavit because I actually saw the Buddha and that I also saw
a firearm and some bullets inside the house.’ * * * which can easily sustain, contrary to complainant’s position, that Amansec’s knowledge was not hearsay at all; as to Sgt. De
Vera, it will be seen that according to his testimony, ‘Q.  Upon arrival in Baguio, did you seek the
coordination of the Police Force in Baguio?
A.  Not upon our arrival, but late in the
evening, sir.  Q.  What else did you do between 10:00 a.m. and 4:00
p.m. that same day, April
4, 1971, when you went to see Col. Calano?  A.  We
conducted a survey and tried to find out and I found out that the Buddha is really existing in the house of Rogelio Roxas, at No. 47 Ledesma Street.  Q. 
Were you able to pinpoint where the Buddha is?  A. 
Yes, sir.  We went to the place at
No. 47 Ledesma Street,
Baguio City to
determine that.  Q.  What did you find out?  A.  That it was really existing.’ * * * from which investigator concludes
that Sgt. de Vera’s knowledge neither was hearsay either; now complainant
point[ed] out * * * certain alleged
discrepancies between the affidavit of Amansec and
his interrogation, * * * but perhaps, neither should it be overlooked that all
these if they existed at all were directed to the conscience of examining
Judge, who was the one called upon to grade their credibility, to act with
precision; the point is that while at the beginning the knowledge of witnesses
had come thru their information from their undercover men, the fact also was
that they were able to confirm the same with their own eyes, the existence of
the suspected articles within the premises, and that was what they certified
under interrogation, —from respondent, — as declared no less by complainant’s
own witness, the Clerk of Court, Fernando R. Romero who was present
thereat.”^[4] As to the fourth accusation of gross
inefficiency, based on the delay in the return as well as the delivery of
the objects seized, Justice Gatmaitan did concur
“with complainant that the return was quite delayed; for in the words of
Sec. 11, Rule 126, the searching officer should forthwith deliver the seized
articles, yet, while search had been made on the night of 5 April, or better
stated, early morning of 6 April, 1971, the return was made only on 13 April,
1971.  As to the Buddha, it was stated in
the return that it was, ‘under the control and custody of Government Security Agents
for safekeeping and will be turned over to this Honorable Court when directed
to do so.’ * * * Now if it be remembered that Police Chief Calano
kept the Buddha in his residence in Camp Holmes, * * * for several days, that
provided the most fertile ground for suspicion of possible substitution;
however, Investigator will concede that the duty to make immediate return
devolved upon the searching party, perhaps a Judge cannot, considering that he
has other duties, be expected to immediately act and require immediate return;
perhaps, if there might and probably could be, danger of substitution, the
attention of the Judge should be immediately called to that, here it was not
ever, at least, there is nothing in the evidence to that effect; * * * However,
the searching officer’s duty is to immediately return to the Court with the
seized articles; here the raiding party returned 7 days later, but without the
Buddha, although Investigator sees that on that date, 13 April, 1971, when the
return was made without the Buddha, respondent issued the order reading,
“In the 1st Indorsement dated April 5, 1971
signed by the Acting Chief of Police of Baguio, the
following articles were seized by virtue of Search Warrant No. 296 issued by
the under­signed, to wit:  One (1) Buddha allegedly golden about 28
inches in height more or less; * * *. 
All these articles were delivered to this Court, except the first item
which is ‘one (1) Buddha allegedly golden about 28 inches in height more or
less.’ To complete the record of search warrant No. 296, the Acting Chief of
Police is hereby ordered to deliver to this Office the ‘one (1) Buddha
allegedly golden about 28 inches in height more or less.’ [It is so
ordered].  City of Baguio, Philippines,
this 13th day of April, 1971. * * * Although
not mentioned in the memorandum but mentioned in the complaint, is the fact
that articles not mentioned in the warrant, i.e., ‘1 old saber with scabbard,
and 14 pieces of brassbars, appearance similar to
gold bars.’ were seized * * * —as to this, respondent’s answer that
Fiscal had the right to take action, as well as aggrieved person to file
corresponding pleading in court, * * * — this is correct.  Therefore, as to the delay in the return and
the seizure of other articles not mentioned
in the search warrant, Investigator must conclude that he can find no way to
blame respondent.”^[5]

The conclusions reached
by Justice Gatmaitan follow: “From foregoing,
Investigator has come to the conclusions that Respondent:  1st—Issued subject search warrant after
examining the witnesses as well as complainant thereof under oath, that the
examination sufficiently complied with the requirements as to the description
of the place to be searched and the object to be seized and that the knowledge
of the witnesses was not hearsay but on their own knowledge; however, insofar
as the fact that the written deposition of witness Sgt. De Vera was not taken
down and the same attached to the record, Respondent violated Sec. 4 of Rule
126; 2nd—There was probable cause to issue the warrant; but the warrant itself suffered
of the defect that it was for two (2) offenses and one of these was not even
specified by stating with precision what Central Bank circular or regulation
had been infringed, contrary to Rule 126, Sec. 3; 3rd—As to the delay in the
return, and as to the seizure of brass bars and a saber not mentioned in the
warrant, herein Investigator has not seen that Respondent should be made
liable.”^[6]

Then came his recommendation: “In view whereof, while
Investigator believes that aforecited defects in the
search warrant might perhaps have justified setting it aside on certiorari,
this being however an administrative case, maybe something more should have
been shown to justify punishment, for otherwise, all Judges whose orders are
assailed and annulled under the extraordinary legal remedies must be visited
with definite sanctions, ? something more should have been shown, some
partiality, bias, prejudice, wrongful motive, — but which Complainant has not
shown nor even attempted to show, and Investigator after some reflection having
come to believe that in the extreme urgency in which Respondent had found
himself, even other Judges, even Investigator himself, would have fallen into
the same mistakes, — therefore, he respectfully desists from recommending a
specific severe or even less than severe punishment, — this subject of course
to this Highest Court’s other wiser criterion.”^[7]

What immediately attracts attention in the above sentence of
Justice Gatmaitan’s recommendation is the extreme
care he took to indicate that he is not to be understood as intruding in any
way with the full discretion that appropriately belongs to this Court.  It reflects his high sense of delicadeza. 
Nonetheless, it would appear obvious, considering the exhaustive report
and the language employed after his pains­taking appraisal of the evidence of
record, that there is not sufficient
warrant for any disciplinary action against respondent.  As he correctly pointed out, a certiorari
proceeding could have been availed of for corrective purposes.  Moreover, it must have been Justice Gatmaitan’s sense of realism fortified by long years of
service as a trial judge and possibly excessive modesty that did lead him to
say that he could have fallen into the same mistake.  As was categorically
affirmed by retired Chief Justice Makalintal in Dizon v. de Borja:^[8]
“To hold a judge administratively accountable for every erroneous ruling
or decision he renders, assuming that he has erred, would be nothing short of
harassment and would make his position unbearable.”^[9] Nonetheless, it is not inappropriate to
place on record that a trial judge in the position of respondent ought to have
abided with the settled juristic norm that a search warrant should not be
issued for more than one offense and that the depositions of the witness should
be made in writing and thereafter attached to the record.

One
last word.  It is to be recalled that, as noted at the
outset, respondent Judge retired on July 11, 1975.  The
writer of this opinion is of the view, following Diamalon
v. Quintillan,^[10]
that as an administrative proceeding is predicated on the holding of an
office or position in the government, the resignation or retirement calls for
its dismissal.  Nonetheless, in Perez v. Abiera,^[11] this Court, in an opinion by Justice Muñoz Palma, ruled:
“In short, the cessation from office of a respondent Judge either because
of resignation, retirement or some other similar cause does not per se
warrant the dismissal of an administrative complaint which was filed against
him while still in the service.  Each
case is to be resolved in the context of the circumstances present
thereat.”^[12]

WHEREFORE, the administrative complaint for gross
inefficiency against Judge Pio Marcos is
dismissed.  Let a copy of this resolution
be placed on his record.

Makasiar, Antonio, Muñoz Palma, Aquino, Concepcion, Jr., and
Martin, JJ.,
concur.

Castro, C.J., did not take part.

Teehankee, J., dissents in a separate opinion.

Barredo, J., in the result.

^[1]
He reached the compulsory retirement age of seventy on July 11, 1975. 
As he was appointed under the 1935 Constitution, the present retirement
age of sixty did not apply as to him.

^[2]
Report, 7-8.

^[3]
Ibid, 8-9

^[4]
Ibid, 10-11.

^[5]
Ibid, 11-14.

^[6]
Ibid, 14-15.

^[7]
Ibid, 15.

^[8]
Adm. Case No. 163-J, January 28, 1971, 37 SCRA 46.

^[9]
Ibid, 52. 
Cf. Santiago v. Santos, Adm. Case No. 772-CJ, April 18, 1975, 63 SCRA 392, per Aquino, J. and De Nacional v. Zosa, Adm.
Case No. 392, July 31, 1975, 65 SCRA 532, per Martin,
J.

^[10]
Adm. Case No. 116, August
29, 1969, 29 SCRA 347.

^[11]
Adm. Case No. 223-J, June 11, 1975, 64 SCRA 302.

^[12]
Ibid, 308. 
The writer of this opinion did not take part in Perez v. Abiera.  However, as
he is speaking for the Court, he is bound by such a doctrine.

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