CJ applicant: Judges must scrutinize warrant applications

Trial court judges should not indiscriminately grant search warrants based merely on allegations by state agents without determining probable cause in issuing such court orders, a senior member of the Supreme Court on Friday said.

During the interview conducted by the Judicial and Bar Council for those applying for the post of chief justice, Associate Justice Alexander Gesmundo reiterated the constitutional mandate on judges to conduct a “personal searching inquiry” before authorizing law enforcers to arrest individuals or raid establishments. In response to a question by outgoing Chief Justice Diosdado Peralta, Gesmundo also said that a lower court judge must review the entire records of the case before ruling on any motion seeking to quash a search warrant issued by another judge. “The Constitution and the Rules of Court are very clear,” Gesmundo said. “The Constitution says no search warrant or warrant of arrest shall be issued except upon probable cause determined by a judge after conducting searching inquiry, meaning asking questions from the complainant and the witnesses he may produce.”

‘Death warrants’

“The judge, in determining probable cause for purposes of issuing a search warrant, will have to resolve it on the basis of his own searching inquiry,” he said.

“He cannot solely rely on the affidavits of the complainants and the witnesses they produced because that would be in violation of the Constitution, as well as the Rules on Criminal Procedure,” the magistrate added. Peralta, who will be retiring on March 27, raised the issue amid mounting calls from lawyers urging the high tribunal to revisit the rules on the issuance of search warrants following the killings of nine activists who were shot dead by policemen serving such orders. Lawyers and human rights advocates had deplored the issuance of search warrants by judges from Metro Manila, which the Philippine National Police used in raiding the homes and offices of activists in the provinces. Antonio La Viña, dean of Ateneo de Manila University’s School of Government, said such court orders have been turned into “death warrants” against members of militant organizations. Rule 126, Section 4 of the Rules on Criminal Procedure states that a search warrant should not be granted “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.”

Specific descriptions

The rule also requires that the “place to be searched and the things to be seized” should be specifically described by those applying for a search warrant.

“The rules are clear. The judge must conduct a personal searching inquiry and therefore if he decided to issue a search warrant, his primary basis should be his own determination based on his examination of the applicant, as well as his witnesses,” Gesmundo said. Gesmundo, 64, a former assistant solicitor general who also served on the antigraft court Sandiganbayan, is vying for the country’s highest judicial office along with Senior Associate Justice Estela Perlas-Bernabe, 68, and Associate Justice Ramon Paul Hernando, 54. Hernando said judges should not be faulted if the enforcement of search warrants resulted in untoward incidents, such as the killings of persons covered by the court order.

He agreed, however, that the existing rules on the issuance of search warrant should be reviewed periodically by the Supreme Court.

“With respect to the process itself, there’s nothing wrong there as long as the judge has really been convinced by the quantum of evidence needed to issue the search warrant,” Hernando said in response to retired Associate Justice Jose Mendoza’s question. “If he really issued it on the basis of what the rules really required, I think the judge should not be blamed for that,” he said. Regarding the killings of lawyers, Gesmundo agreed with the suggestion of some lawyers that the high court should ask government agencies investigating the attacks on members of the legal profession to update the Supreme Court on the status of the cases. “Having supervisory power over the legal profession, we can immediately talk with the law enforcement authorities and perhaps require that they give us specifics on the extent of the investigation that have been conducted as regards to the killings,” Gesmundo said. He said the 15-member tribunal should also engage the Integrated Bar of the Philippines, the biggest mandatory organization of lawyers, in dialogues to come up with a unified action in preventing the violent attacks against lawyers. Replying to a question by retired Supreme Court Associate Justice Noel Tijam, Gesmundo said lawyers should be allowed to carry guns “if they feel they are adequate to handle firearms” to defend themselves.