If there are searching questions in case of search warrants, shouldn't there be arresting questions for warrants of arrest?
This was what I asked Atty. Dr. Pat Belciña, M.D., our professor in Political Law Review, one evening in class. Prof. Pat was in his usual effervescent self and quick to a repartee. But the question got him flatfooted. :-)
That evening we were reviewing Article III, Section 2 of the
Constitution:
Section 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.
When it comes to search warrant, any discussion by textbook authors or in class usually leads to Rule 126, Search and Seizure, particularly these sections:
Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense 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 things to be seized which may be anywhere in the Philippines. (3a)
Section 5. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (4a)
But I have always wondered why there is no equivalent provision for personal examination through searching questions (or arresting questions?) for warrants of arrest in all of the 14 sections of Rule 113 (Arrest).
There is, however, this provision in Rule 112 (Preliminary Investigation) as to when a warrant of arrest may be issued:
Section 5. When warrant of arrest may issue. — (a) By the Regional Trial Court. — Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order when the complaint or information was filed pursuant to section 6 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information.
(b) By the Municipal Trial Court. — When required pursuant to the second paragraph of section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court shall be conducted by the prosecutor. The procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section.
(c) When warrant of arrest not necessary. — A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 6 of this Rule or is for an offense penalized by fine only. The court shall then proceed in the exercise of its original jurisdiction. (6a)
Nowhere in the section is it required of a judge to personally examine witnesses through searching questions. But curiously in the final section of Rule 112 we find this (underlining mine):
Section 8. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. —
(a) If filed with the prosecutor. — If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing.
(b) If filed with the Municipal Trial Court. — If the complaint or information is filed directly with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching question and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest. (9a)
In the 1985 and 1988 editions of the Rules on Criminal Procedure there was a requirement for examination of witnesses in searching questions by the judge. But it was buried again in Rule 112.
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 satisfied after 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)
Note that only the MTC judge is required to examine witnesses with searching questions.
And this is Sec 9 in the 1985 and 1988 editions:
SEC. 9. Cases not falling under the original jurisdiction of the Regional Courts nor covered by the Rule on Summary Procedure.— (a) Where filed with the fiscal. If the complaint is filed directly with the fiscal or state prosecutor, the procedure outlined Section 3 (a) of this Rule shall be observed. The fiscal shall take appropriate action based on the affidavits and other supporting documents submitted by the complainant
(b)Where filed directly with the Municipal Trial Court.—If the complaint formation is filed directly with the Municipal Trial Court, the procedure provided for in Section 3 (a) of this Rule shall likewise be observed. If the judge finds no sufficient ground to hold the respondent trial, he shall dismiss the complaint or information. Otherwise, he shall issue a warrant of arrest after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, (n)
Now compare the 2000 and 1985/1988 editions of the Rules.
You can see that the requirement to personally examine through searching questions has been transposed from Sec. 6 in the 1985/1988 edition to Sec. 9 in the 2000 edition. The requirement for personal examination through searching questions was dropped in Sec.
6 5 but still retained in Sec.
9 8 of the 2000 Rules.
[Update: Section 5 was deleted by A.M. No. 05-8-26-SC and the following sections renumbered.]
In the 1964 edition of Rule 126 we find that the judge was also required to examine the complainant and the witnesses though there is no mention of searching questions.
Sec. 3. Requisites for issuing search warrant.—A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the judge or justice of the peace 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. No search warrant shall issue for more than one specific offense.
When it comes to warrants of arrest the judge may either examine personally the complainant and witnesses or rely on the preliminary investigation of the investigating officer before issuing a warrant of arrest.
Rule 112, Sec. 6. 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.
Something happened in between the 1964, 1988, and 2000 editions of the Rules which may have caused the changes.
In this post I tried to trace the history of the "searching questions" angle of the issue. In my next post I will explore why the Supreme Court says there is no need for personal examination of witnesses when it comes to warrants of arrests but there should be in search warrants.
