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[RESEARCH ON PROBABLE CAUSE] December 15, 2016

Determination of probable cause in the


OMBUDSMAN and in the SANDIGANBAYAN:
EXECUTIVE and JUDICIAL determination
There are two kinds of determination of
probable cause: executive and judicial.
The executive determination of probable
cause is one made during preliminary
investigation. It is a function that properly
pertains to the public prosecutor who is
given a broad discretion to determine
whether probable cause exists and to charge
those whom he believes to have committed
the crime as defined by law and thus should
be held for trial. Otherwise stated, such
official has the quasi-judicial authority to
determine whether or not a criminal case
must be filed in court. 1 Whether or not that
function has been correctly discharged by
the public prosecutor, i.e., whether or not he
has made a correct ascertainment of the
existence of probable cause in a case, is a
matter that the trial court itself does not and
may not be compelled to pass upon.2
The judicial determination of probable
cause, on the other hand, is one made by the
judge to ascertain whether a warrant of
arrest should be issued against the accused.
The judge must satisfy himself that based on
the evidence submitted, there is necessity for
placing the accused under custody in order
not to frustrate the ends of justice. 3
Thus, absent a finding that an information is
invalid on its face or that the prosecutor
committed manifest error or grave abuse of
discretion, a judges determination of
probable cause is limited only to the judicial
kind or for the purpose of deciding whether

the arrest warrants should be issued against


the accused.4
Judiciarys Standing Policy: Noninterference by courts of the investigatory
and prosecutor powers
The Sandiganbayan and all courts for that
matter should always remember the
judiciarys standing policy on noninterference in the Office of the
Ombudsmans
exercise
of
its
constitutionally mandated powers. This
policy is based not only upon respect for the
investigatory and prosecutory powers
granted by the Constitution to the Office of
the Ombudsman but upon practicality as
well, considering that otherwise, the
functions of the courts will be grievously
hampered
by
innumerable
petitions
regarding complaints filed before it, and in
much the same way that the courts would be
extremely swamped if they were to be
compelled to review the exercise of
discretion on the part of the prosecutors each
time they decide to file an information in
court or dismiss a complaint by a private
complainant.5
A similar ruling is made in Redulla v. The
Hon. Sandiganbayan (First Division), et
al.,6 where the Supreme Court said:
This Court has almost always adopted, quite
aptly, a policy of non-interference in the
exercise
of
the
Ombudsmans
constitutionally mandated powers. This rule
is based not only upon respect for the
investigatory and prosecutory powers
granted by the Constitution to the Office of
4
5

2
3

People of the Philippines vs. Jessie B. Castillo and


Felicito R. Mejia, G.R. No. 171188, 19 June 2009,
citing Paderanga v. Drilon, G.R. No. 96080, 19 April
1991, 196 SCRA 86, 90.
Id., citing Roberts, Jr. v. Court of Appeals, G.R. No.
113930, 05 March 1996, 254 SCRA 307, 350.
Id., citing Ho v. People, G.R. Nos. 106632 & 106678,
October 9, 1997, 280 SCRA 365, 380.

People of the Philippines vs. Jessie B. Castillo and


Felicito R. Mejia, G.R. No. 171188, 19 June 2009.
Id.,, citing Go v. Fifth Division, Sandiganbayan, G.R.
No. 172602, April 13, 2007, (521 SCRA 293) and
Andres v. Cuevas, G.R. No. 150869, 09 June 2005,
460 SCRA 32
TEOTIMO M. REDULLA v. THE HON.
SANDIGANBAYAN (FIRST DIVISION), THE OFFICE
OF THE OMBUDSMAN, and THE OFFICE OF THE
SPECIAL PROSECUTOR, G.R. No. 167973 28
February 2007

Ut In Omnibus Glorificetur Dei | ATTY. ODESSA GRACE E. GONZAGA

the Ombudsman but upon practicality as


well. Otherwise, the functions of the courts
will be grievously hampered by innumerable
petitions x x x with regard to complaints
filed before it, in much the same way that
the courts would be extremely swamped if
they were compelled to review the exercise
of discretion on the part of the fiscals, or
prosecuting attorneys, each time they decide
to file an information in court or dismiss a
complaint by a private complainant. 7

2. The preliminary inquiry made by


a prosecutor does not bind the
judge. It merely assists him in
making the determination of
probable cause. It is the report, the
affidavits, the transcripts of
stenographic notes, if any, and all
other
supporting
documents
behind
the
prosecutors
certification which are material in
assisting the judge in his
determination of probable cause;
and

Significance
of
the
OMBUDSMANs
certification in the SBs determination of
probable cause.

3. 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
be released. Even if the two
inquiries be made in one and the
same proceeding, there should be
no
confusion
about
their
objectives. The determination of
probable cause for purposes of
issuing 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.

May the SB rely solely on the


Ombudsmans certification of probable
cause?
NO. In Sales v. Sandiganbayan (4th
Division), et al.8, the Supreme Court had the
occasion to rule that:
x x x [I]t was patent error for the
Sandiganbayan to have relied purely on the
Ombudsmans certification of probable
cause given the prevailing facts of this case
much more so in the face of the latters
flawed report and one-sided factual findings.
In the order of procedure for criminal cases,
the task of determining probable cause for
purposes of issuing a warrant of arrest is a
responsibility which is exclusively reserved
by the Constitution to judges.9

Stated differently, while the task of


conducting a preliminary investigation is
assigned either to an inferior court
magistrate or to a prosecutor, 11 only a
judge may issue a warrant of arrest. When
the preliminary investigation is conducted
by an investigating prosecutor, in this
case the Ombudsman, 12 the determination
of probable cause by the investigating
prosecutor cannot serve as the sole basis
for the issuance by the court of a warrant
of arrest. This is because the court with
whom the information is filed is tasked to
make its own independent determination

People v. Inting10 clearly delineated the


features of this constitutional mandate, viz:
1. The determination of probable
cause is a function of the judge; it
is not for the provincial fiscal or
prosecutor to ascertain. Only the
judge and the judge alone makes
this determination;

7
8

9
10

Citing Nava v. Commission on Audit, 419 Phil. 544,


553 (2001).
Reynolan T. Sales v. Sandiganbayan (4th Division),
Ombudsman, People of the Philippines and Thelma
Benemerito, G.R. No. 143802, 16 November 2001.
Article III, Section 2, Constitution.
187 SCRA 788, 792-793 [1990].

11
12

Section 2, Rule 112, 2000 Revised Rules on Criminal


Procedure.
See Section 11 (4), R.A. No. 6770 otherwise known as
the Ombudsman Act of 1989.

of probable cause for the issuance of the


warrant of arrest. Indeed

improbabilities in the prosecution evidence. 13


Certainly

x x x [T]he Judge cannot ignore the


clear words of the 1987 Constitution
which requires x x x probable cause
to be personally determined by the
judge x x x not by any other officer
or person.

x x x probable cause may not be


established simply by showing that a trial
judge subjectively believes that he has good
grounds for his action. Good faith is not
enough. If subjective good faith alone were
the test, the constitutional protection would
be demeaned and the people would be
secure in their persons, houses, papers and
effects only in the fallible discretion of the
judge.14 On the contrary, the probable cause
test is an objective one, for in order that
there be probable cause the facts and
circumstances must be such as would
warrant a belief by a reasonably discreet and
prudent man that the accused is guilty of the
crime which has just been committed.15

xxx

xxx

xxx

The extent of the Judges personal


examination of the report and its
annexes
depends
on
the
circumstances of each case. We
cannot determine beforehand how
cursory or exhaustive the Judges
examination should be. The Judge
has to exercise sound discretion for,
after all, the personal determination
is vested in the Judge by the
Constitution. It can be brief or as
detailed as the circumstances of each
case may require. To be sure, the
Judge must go beyond the
Prosecutors
certification
and
investigation
report
whenever
necessary. He should call for the
complainant
and
witnesses
themselves to answer the courts
probing
questions
when
the
circumstances so require.
xxx

xxx

May a determinative finding on the


presence or absence of the elements of the
offense charged be made during a
determination of probable cause for the
purpose of issuance of warrant of arrest?
NO. In People vs. Castillo & Mejia,16 the
Supreme Court held that:
x x x [I]t was clearly premature on the part
of the Sandiganbayan to make a
determinative finding prior to the parties
presentation of their respective evidence that
there was no bad faith and manifest
partiality on the respondents part and undue
injury on the part of the complainant. x x x
[T]he presence or absence of the elements of
the crime is evidentiary in nature and is a
matter of defense that may be best passed
upon after a full-blown trial on the
17
merits.

x x x

We reiterate that in making the required


personal determination, a Judge is not
precluded from relying on the evidence
earlier gathered by responsible officers.
The extent of the reliance depends on the
circumstances of each case and is subject
to the Judges sound discretion. However,
the Judge abuses that discretion when
having no evidence before him, he issues
a warrant of arrest.

Can the SB require that the prosecution


present all the evidence needed to secure
Duty of the SB in determining probable cause,
when faced with conflicting evidence; Good
faith is not enough.
What the Sandiganbayan should [do when] faced
with x x x a slew of conflicting evidence from
the contending parties, [is] to take careful note of
the contradictions in the testimonies of the
complainants witnesses as well as the

13
14
15
16
17

Allado v. Diokno, 232 SCRA 192 (1994).


Beck v. Ohio, 379 U.S. 89, 85 S Ct. 223, 13 L Ed. 2d
142 (1964).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L Ed. 2d
889 (1968).
People of the Philippines vs. Jessie B. Castillo and
Felicito R. Mejia, G.R. No. 171188, 19 June 2009
Id., citing Go v. Fifth Division, Sandiganbayan,
G.R. No. 172602, 13 April 2007 (521 SCRA 270).

in this case. Although the prosecutor enjoys


the legal presumption of regularity in the
performance of his official duties and
functions, which in turn gives his report the
presumption of accuracy, the Constitution,
we repeat, commands the judge to
personally determine probable cause in the
issuance of warrants of arrest. This Court
has consistently held that a judge fails in his
bounden duty if he relies merely on the
certification or the report of the investigating
officer.21

the conviction of accused upon filing of


the information?
NO. In People vs. Castillo & Mejia,18 the
Supreme Court held that:
"x x x [I]t would be unfair to expect the
prosecution to present all the evidence
needed to secure the conviction of the
accused upon the filing of the information
against the latter. The reason is found in
the nature and objective of a preliminary
investigation. Here, the public prosecutors
do not decide whether there is evidence
beyond reasonable doubt of the guilt of
the person charged; they merely
determine whether there is sufficient
ground to engender a well-founded belief
that a crime has been committed and that
respondent is probably guilty thereof, and
should be held for trial. 19 his, as we said
is the standard. x x x

Are the entire records during the preliminary


investigation required to be submitted and
examined during the judicial determination of
probable cause?
NO. Cojuangco, Jr. v. Sandiganbayan (First
Division)20 teaches that:
It is not required that the complete or entire
records of the case during the preliminary
investigation be submitted to and examined
by the judge. We do not intend to unduly
burden trial courts by obliging them to
examine the complete records of every case
all the time simply for the purpose of
ordering the arrest of an accused. What is
required, rather, is that the judge must have
sufficient supporting documents (such as the
complaint, affidavits, counter-affidavits,
sworn statements of witnesses or transcripts
of stenographic notes, if any) upon which to
make his independent judgment or, at the
very least, upon which to verify the findings
of the prosecutor as to the existence of
probable cause. The point is: he cannot rely
solely and entirely on the prosecutors
recommendation, as Respondent Court did
18
19
20

People of the Philippines vs. Jessie B. Castillo and


Felicito R. Mejia, G.R. No. 171188, 19 June 2009
Id., citing People v. Court of Appeals, G.R. No.
126005, 21 January 1999 (301 SCRA 475, 488).
Eduardo M. Cojuangco, Jr. v. Sandiganbayan (First
Division) and People of the Philippines, G.R. No.
134307, 21 December 1998.

Motion for Judicial Determination of Probable


Cause

Is a motion for judicial determination of


probable cause necessary?
NO. In Leviste v. Hon. Alameda, et al.,22 it
was held that to move the court to conduct a
judicial determination of probable cause is a
mere superfluity, for with or without such
motion, the judge is duty-bound to
personally evaluate the resolution of the
public prosecutor and the supporting
evidence. In fact, the task of the presiding
judge when the Information is filed with the
court is first and foremost to determine the
existence or non-existence of probable cause
for the arrest of the accused.23
What the Constitution underscores is the
exclusive and personal responsibility of the
issuing judge to satisfy himself of the
existence of probable cause. But 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
prosecutor regarding the existence of
probable cause, and on the basis thereof, he
may already make a personal determination
of the existence of probable cause; and (2) if
21
22

23

Citing Ho v. People, 280 SCRA 380, 382 (1997).


Jose Antonio C. Leviste v. Hon. Elmo M. Alameda,
Hon. Raul M. Gonzalez, Hon. Emmanuel Y. Velasco,
Heirs of the late Rafael de las Alas, G.R. No. 182677,
03 August 2010
Leviste, citing Baltazar v. People, G.R. No. 174016, 28
July 2008 (560 SCRA 278, 293).

he is not satisfied that probable cause exists,


he may disregard the prosecutors 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.24 (emphasis supplied)

NO. In Ramiscal, Jr., v. Sandiganbayan (4th


Division),28 the Supreme Court ruled:
We agree with the Sandiganbayans ruling
that the Revised Rules of Criminal
Procedure do not require cases to be set for
hearing to determine probable cause for the
issuance of a warrant for the arrest of the
accused before any warrant may be issued.
Section 6, Rule 112 mandates the judge to
personally evaluate the resolution of the
Prosecutor (in this case, the Ombudsman)
and its supporting evidence, and if he/she
finds probable cause, a warrant of arrest or
commitment order may be issued within 10
days from the filing of the complaint or
Information; in case the Judge doubts the
existence of probable cause, the prosecutor
may be ordered to present additional
evidence within five (5) days from notice.
The provision reads in full:

The rules do not require cases to be set for


hearing to determine probable cause for the
issuance of a warrant of arrest of the accused
before any warrant may be issued.25
Petitioner thus cannot, as a matter of right,
insist on a hearing for judicial determination
of probable cause. Certainly, petitioner
cannot determine beforehand how cursory or
exhaustive the judge's examination of the
records should be since the extent of the
judges examination depends on the exercise
of his sound discretion as the circumstances
of the case require. 26 In one case, the Court
emphatically stated:

SEC. 6. 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 if the accused has
already been arrested pursuant to a
warrant issued by the judge who
conducted the preliminary investigation
or when the complaint or information
was filed pursuant to section 7 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 of
information.29

The periods provided in the Revised Rules


of Criminal Procedure are mandatory, and as
such, the judge must determine the presence
or absence of probable cause within such
periods. The Sandiganbayans determination
of probable cause is made ex parte and is
summary in nature, not adversarial. The
Judge should not be stymied and
distracted from his determination of
probable cause by needless motions for
determination of probable cause filed by
the accused.27 (emphasis and italics
supplied)

Do the rules require that a hearing be set


for the judicial determination of probable
cause?

28

24
25

26
27

Borlongan, Jr. v. Pea, G.R. No. 143591, 23 November


2007 (538 SCRA 235).
Leviste, citing Ramiscal, Jr. v. Sandiganbayan, G.R.
Nos. 169727-28, August 18, 2006, 499 SCRA 375,
398.
Vice Mayor Abdula v. Hon. Guiani, 382 Phil. 757, 776
(2000).
Id., at 399.

29

Brig. Gen. (Ret.) Jose S. Ramiscal, Jr., v.


Sandiganbayan (4th Division) and People of the
Philippines, G.R. Nos. 169727-28, 18 August 2006.
In Administrative Matter No. 05-8-26-SC dated 26
August 2005, which took effect 03 October 2005, the
rule reads:
SEC. 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

The periods provided in the Revised Rules


of Criminal Procedure are mandatory, and as
such, the judge must determine the presence
or absence of probable cause within such
periods. The Sandiganbayans determination
of probable cause is made ex parte and is
summary in nature, not adversarial. The
Judge should not be stymied and distracted
from his determination of probable cause by
needless motions for determination of
probable cause filed by the accused.

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.
Rule 1, Section 2, of the Revised Internal Rules of the
Sandiganbayan provides:
The Rules of Court, resolutions, circulars,
and other issuances promulgated by the
Supreme Court relating to or affecting the
Regional Trial Courts and the Court of
Appeals, insofar as applicable, shall govern
all actions and proceedings filed with the
Sandiganbayan.