PEOPLE OF THE PHILIPPINES, PETITIONER, VS. HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38, DUMAGUETE CITY, AND OIC MAYOR DOMINADOR S. REGALADO, JR…

Does a preliminary investigation conducted by a Provincial
Election Supervisor involving election offenses have to be coursed through the
Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court
may take cognizance of the investigation and determine whether or not probable
cause exists?

On February 6, 1988,
Mrs. Editha Barba filed a
letter-complaint against OIC-Mayor Dominador Regalado of Tanjay, Negros Oriental with the Commission on Elections (COMELEC),
for allegedly transferring her, a permanent Nursing Attendant, Grade I, in the
office of the Municipal Mayor to a very remote barangay
and without obtaining prior permission or clearance from COMELEC as required by
law.

Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of Dumaguete City:  (1)
to conduct the preliminary investigation of the case; (2) to prepare and file
the necessary information in court; (3) to handle the prosecution if the
evidence submitted shows a prima facie case and (3) to issue a
resolution of prosecution or dismissal as the case may be.  The directive to conduct the preliminary
investigation was pursuant to COMELEC Resolution No. 1752 dated January 14, 1986.  The resolution, in turn, is based on the constitutional
mandate that the COMELEC is charged with the enforcement and administration of
all laws relative to the conduct of elections for the purpose of ensuring free,
orderly and honest elections (Sec. 2, Article XII-C of the 1973 Constitution)
and on the Omnibus Election Code which implements the constitutional
provision.  The Resolution provides,
among others:

xxx                                                    xxx                                                       xxx

“Further, Regional Election Directors and Provincial Election
Supervisors are hereby authorized to conduct preliminary investigations of
election offenses committed in their respective jurisdictions, file the
corresponding complaints and/or informations in court
whenever warranted, and to prosecute the same pursuant to Section 265 of the
Omnibus Election Code.” (Rollo, p. 15)

After a preliminary
investigation of Barba’s complaint, Atty. Lituanas found a prima facie case.  Hence, on September 26, 1988, he filed with the respondent trial court a
criminal case for violation of section 261, Par. (h), Omnibus Election Code
against the OIC-Mayor.

In an Order dated September
30, 1988, the
respondent court issued a warrant of arrest against the accused OIC Mayor.  It also fixed the bail at five thousand pesos
(P5,000.00) as recommended by the Provincial Election
Supervisor.

However, in an order
dated October 3, 1988
and before the accused could be arrested, the trial court set aside its September
30, 1988 order on
the ground that Atty. Lituanas is not authorized to
determine probable cause pursuant to Section 2, Article III of the 1987
Constitution.  The court stated that it
“will give due course to the information filed in this case if the
same has the written approval of the Provincial Fiscal after which
the prosecution of the case shall be under the supervision and control of the
latter.” (at p. 23, Rollo,
emphasis supplied)

In another order dated November
22, 1988, the court
gave Atty. Lituanas fifteen (15) days from receipt to
file another information charging the same offense
with the written approval of the Provincial Fiscal.

Atty. Lituanas failed to comply with
the order.  Hence, in an order dated December 8, 1988, the trial court
quashed the information.  A motion for
reconsideration was denied.

Hence,
this petition.

The respondent trial court justifies its stand on the ground that
the COMELEC through its Provincial Election Supervisor lacks jurisdiction to
determine the existence of probable cause in an election offense which it seeks
to prosecute in court because:

“While under Section 265 of the Omnibus Election Code approved
on December 3, 1985 duly authorized legal officers of the Commission on
Elections have the exclusive power to conduct preliminary investigation of all
election offenses and to prosecute the same, it is doubtful whether said
authority under the auspices of the 1973 Constitution, still subsists under the
1987 Constitution which has deleted in its Section 2, Article III, the phrase
‘and such other responsible officer as may be authorized by law’ in the
equivalent section and article of the 1973 Constitution.” (Rollo, p. 24)

The petition is impressed with merit.

We emphasize important features of the constitutional mandate
that “x x no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
xx.” (Article III, Section 2, Constitution)

First, the determination of probable cause is a function of the
Judge.  It is not for
the Provincial Fiscal or Prosecutor nor for the Election Supervisor to
ascertain.  Only the Judge
and the Judge alone makes this determination.

Second,  the preliminary inquiry made by a Prosecutor
does not bind the Judge.  It merely
assists him to make the determination of probable cause.  The Judge does not have to follow what the
Prosecutor presents to him.  By itself,
the Prosecutor’s certification of probable cause is ineffectual.  It is the report, the affidavits, the
transcripts of stenographic notes (if any), and all other supporting documents
behind the Prosecutor’s certification which are material in assisting the Judge
to make his determination.

And third, Judges and
Prosecutors alike should distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest from the preliminary
investigation proper which ascertains whether the offender should be held for
trial or released.  Even if the two
inquiries are conducted in the course of one and the same proceeding, there
should be no confusion about the objectives. 
The determination of probable cause for the warrant of arrest is made by
the Judge.  The preliminary investigation
proper – whether or not there is reasonable ground to believe that the
accused is guilty of the offense charged and, therefore, whether or not he
should be subjected to the expense, rigors and embarrassment of trial – is the
function of the Prosecutor.

The Court made this clear
in the case of Castillo v. Villaluz (171
SCRA 39 [1989]):

“Judges of Regional Trial Courts (formerly Courts of First
Instance) no longer have authority to conduct preliminary investigations.  That authority, at one time reposed in them
under Sections 13, 14 and 16, Rule 112 of the Rules of Court of 1964, (See Sec.
4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in
Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal
Procedure, effective on January 1, 1985, (Promulgated on November 11, 1984)
which deleted all provisions granting that power to said Judges.  We had occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as
well certain other basic propositions, namely: 
(1) that the conduct of a preliminary
investigation is ‘not a judicial function x x (but)
part of the prosecution’s job, a function of the executive,’ (2) that wherever
‘there are enough fiscals or prosecutors to conduct preliminary investigations,
courts are counseled to leave this job which is essentially executive to them,’
and the fact ‘that a certain power is granted does not necessarily mean that it
should be indiscriminately exercised.’

“The 1988 Amendments to the 1985 Rules on Criminal Procedure,
declared effective on October 1, 1988, (The 1988 Amendments were published in
the issue of Bulletin Today of October 29, 1988) did not restore that authority
to Judges of Regional Trial Courts; said amendments did not in fact deal at all
with the officers or courts having authority to conduct preliminary
investigations.

“This is not to say, however, that somewhere along the line
RTC Judges also lost the power to make a preliminary examination for the purpose
of determining whether probable cause exists to justify the
issuance of a warrant of arrest (or
search warrant).  Such a power — indeed,
it is as much a duty as it is a power — has been and remains vested in every
judge by the provision in the Bill of Rights in the 1935, the 1973 and the
present (1987) Constitutions securing the people against unreasonable searches
and seizures, thereby placing it beyond the competence of mere Court rule or
statute to revoke.  The distinction must,
therefore, be made clear while an RTC Judge may no longer conduct preliminary
investigations to ascertain whether there is sufficient ground for the filing
of a criminal complaint or information, he retains the authority, when such a
pleading is filed with his court, to determine whether there is probable cause
justifying the issuance of a warrant of arrest. 
It might be added that this distinction accords, rather than conflicts,
with the rationale of Salta
because both law and rule, in restricting to judges the authority to order
arrest, recognize that function to be judicial in nature.”

We reiterate that
preliminary investigation should be distinguished as to whether it is an
investigation for the determination of a sufficient ground for the filing of
the information or it is an investigation for the determination of a probable
cause for the issuance of a warrant of arrest. 
The first kind of preliminary investigation is executive in nature.  It is part of the prosecution’s job.  The second kind of preliminary investigation
which is more properly called preliminary examination is judicial in nature and
is lodged with the judge.  It is in this
context that we address the issue raised in the instant petition so as to give
meaning to the constitutional power vested in the COMELEC regarding election
offenses.

Article IX C Section 2 of
the Constitution provides:

“Sec. 2.  The Commission on Elections shall exercise
the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall.

xxx                                                    xxx                                                       xxx

(6) File, upon a verified complaint, or on its own initiative,
petitions in court
for inclusion or exclusion of votes, investigate and, where
appropriate, prosecute cases of violation of election
laws, including acts or omission constituting
election frauds, offenses, and malpractices.  (Emphasis supplied)

In effect the 1987
Constitution mandates the COMELEC not only to investigate but also to prosecute
cases of violation of election laws. 
This means that the COMELEC is empowered to conduct preliminary
investigations in cases involving election offenses for the purpose of helping
the Judge determine probable cause and for filing an
information in court.  This power
is exclusive with COMELEC.

“The grant to the COMELEC of the power, among others, to
enforce and administer all laws relative to the conduct of election and the concomittant authority to investigate and prosecute
election offenses is not without compelling reason.  The evident constitutional intendment in
bestowing this power to the COMELEC is to insure the free, orderly and honest
conduct of elections, failure of which would result in the frustration of the
true will of the people and make a mere idle ceremony of the sacred right and
duty of every qualified citizen to vote. 
To divest the COMELEC of the authority to investigate and prosecute
offenses committed by public officials in relation to their office would thus
seriously impair its effectiveness in achieving this clear constitutional
mandate.

From a careful scrutiny of the constitutional provisions relied
upon by the Sandiganbayan, We perceived neither
explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to investigate, prosecute and
hear election offenses committed by public officers in relation to their office
as contradistinguished from the clear and categorical bestowal of said authority
and jurisdiction upon the COMELEC and the courts of first instance under
Sections 182 and 184, respectively, of the Election Code of 1978.

An examination of the provisions of the Constitution and the
Election Code of 1978 reveals the clear intention to place in the COMELEC exclusive jurisdiction to
investigate and prosecute election offenses committed by any person, whether
private individual or public officer or employee, and in the latter instance,
irrespective of whether the offense is committed in relation to his official
duties or not.  In other words, it is the
nature of the offense and not the personality of the offender that
matters.  As long as the offense is an election
offense jurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing
power over the conduct of elections.” (Corpus v. Tanodbayan,
149 SCRA 281 [1987])

Hence, the Provincial Fiscal, as such, assumes no role in the
prosecution of election offenses.  If the
Fiscal or Prosecutor files an information charging an
election offense or prosecutes a violation of election law, it is because he
has been deputized by the COMELEC.  He does not do so under the sole
authority of his office.  (People v. Basilla, et al. G.R. Nos.
83938-40, November 6, 1989).  In the
instant case, there is no averment or allegation that the respondent Judge is
bringing in the Provincial Fiscal as a deputy of COMELEC.  He wants the
Fiscal to “approve” the COMELEC’s preliminary investigation.

It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in
effect) the President issued Executive Order No. 134 which was the ENABLING ACT
FOR ELECTIONS FOR MEMBERS OF CONGRESS ON MAY 11, 1987 AND FOR OTHER
PURPOSES.” Section 11 thereof provides:

“Prosecution.  The Commission shall, through its duly
authorized legal officers, have exclusive power to conduct preliminary
investigation of all election offenses punishable as provided for in the
preceding section, and to prosecute the same: 
Provided, That in the event that the Commission fails to act on any
complaint within two (2) months from filing, the complainant may file the
complaint with the Office of the Fiscal or with the Department of Justice for
proper investigation and prosecution, if warranted.

The Commission may avail of the assistance of other prosecuting
arms of the government.”

It is only after a
preliminary examination conducted by the COMELEC through its officials or its
deputies that section 2, Article III of the 1987 Constitution comes in.  This is so, because, when the application for
a warrant of arrest is made and the information is filed with the court, the
judge will then determine whether or not a probable cause exists for the
issuance of a warrant of arrest.

Bearing these principles
in mind, it is apparent that the respondent trial court misconstrued the
constitutional provision when it quashed the information filed by the
Provincial Election Supervisor.  As
indicated above what the respondent trial court should have done was to enforce
its September 30, 1988 order, to wit:

“Pursuant to Circular No. 12 of the Chief Justice of the
Supreme Court dated June 30, 1987 and considering that after a personal
examination of the evidence submitted by the investigating Provincial Election
Supervisor IIl Negros Oriental
(Designated Legal Officer), there is reasonable ground for this Court to rely
on the certification of said Provincial Election Supervisor III in the
information that a probable cause exists, let a warrant issue for the arrest of
the accused fixing the bail at FIVE THOUSAND (P5,000.00) PESOS as recommended
by the Provincial Election Supervisor III.”

The order to get the approval of the Provincial Fiscal is not
only superfluous but unwarranted.

WHEREFORE, the instant petition is GRANTED.  The questioned Orders dated October 3, 1988, November 22, 1988 and December 8, 1988 are
REVERSED and SET ASIDE.  The respondent
trial court’s Order dated September
30, 1988 is REINSTATED.  The
respondent court is ordered to proceed hearing the case with deliberate speed
until its termination.

SO ORDERED.

Fernan, C.J., (Chairman), Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento,
Cortes, Grino-Aquino, Medialdea, and Regalado, JJ., concur.