I
part 1 I asked why a judge is required to personally examine the complainant and witnesses in the form of searching questions before issuing a search warrant but there is no such equivalent requisite for an arrest warrant. I'll attempt in this post to fathom out the reason
First, let us trace the evolution of the rules.
1964 edition.
Search warrant. Judge personally examines the complainant and the witnesses. No mention of searching questions.
Warrant of arrest. Judge conducts preliminary examination or rely on the one done by the investigating officer before issuing a warrant of arrest.
1985/1988 edition.
Search warrant. Judge personally examines through searching questions.
Warrant of arrest. MTC judge personally examines through searching questions. But not such requirement for RTC judge. (Rule 112, Sec. 6 and 9)
2000 edition.
Search warrant. Same as in 1985/1988 edition.
Warrant of arrest. No more personal examination nor searching questions in Sec. 5 but retained in Sec. 8.
In summary, personal examination of witnesses has been required in search warrants in all reiteration of the Rules with the addition of "searching questions" beginning with the 1985 edition. For warrants of arrest, personal examination was not required in the 1964 Rules; added in 1985/1988 editions with the additional requirement of "searching questions"; dropped in the 2000 edition.
So what happened in between the 1964, 1985/1988 and 2000 editions of the Rules of Criminal Procedure?
On November 14, 1988 the case of
Soliven vs Makasiar, G.R. No. 82827, was decided by the Supreme Court. Relevant portion says,
The
addition of the word "personally" after the word
"determined" and the deletion of the grant of authority by the 1973
Constitution to issue warrants to "other responsible officers as may be
authorized by law," has apparently convinced petitioner Beltran that the
Constitution now requires the judge to personally examine the complainant and
his witnesses in his determination of probable cause for the issuance of
warrants of arrest. This is not an accurate interpretation.
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 (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.
This could be the reason for the change from the 1988 to 2000 Rules. But why? The SC in its decision in Soliven vs Makasiar added:
"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."
Yet the question still remains: why is personal examination required in search warrants but not in arrest warrants? Isn't what is good for the goose also good for the gander? The SC seems to have settled the question in
Lim vs Felix, G.R. Nos. 94054-57, Feb. 19, 1991:
There is no problem with search warrants which are relatively fewer and far between and where there is no duplication of work between the Judge and the Prosecutor. The problem lies with warrants of arrest especially in metropolitan or highly urban areas. If a Judge has to personally question each complainant and witness or go over the records of the Prosecutor's investigation page by page and word for word before he acts on each of a big pile of applications for arrest warrants on his desk, he or she may have no more time for his or her more important judicial functions.
When I threw the question at Judge Mein Paredes one evening in class he added that the process for issuing a search warrant, unlike that of warrant of arrest, is ex parte. I failed to ask for more explanation from him as we were winding up the session.
Seguro, research pa more tayo!
Addendum Jan 25, 2016: Have you been wondering why these comments pertaining to "searching questions and answers" on Rule 112. Sec. 5 are still on your textbooks?
Page 395 of Regalado's
Remedial Law Compendium, Vol. II, 2008 Edition -
Page 235 of Pamaran's
Revised Rules of Criminal Procedure, Annotated, 2012 Edition -
It's because the authors have carried over their annotation from the previous editions of their books before the advent of
Soliven vs Makasiar.
