Maribeth M. Ora vs. Judge Romeo A. Almajar.

Republic of the PhilippinesSUPREME COURT

SECOND DIVISION

A.M. No. MTJ-05-1599 October 14, 2005

(Formerly OCA I.P.I. No. 04-1569-MTJ)

MARIBETH M. ORA, Complainant, JUDGE ROMEO A. ALMAJAR, Municipal Circuit Trial Court, Salay, Misamis Oriental, Respondent.

D E C I S I O N

PUNO, J.:

This is an administrative case for Gross Ignorance of the Law filed by Maribeth M. Ora against Judge Romeo A. Almajar, Municipal Circuit Trial Court (MCTC) of Salay, Misamis Oriental.

Complainant alleged¹estafa was filed against her by the Chief of Police of Binuangan, Misamis Oriental, before the MCTC of Salay and Binuangan,²

In his comment,³Rules of Court when he issued the warrant of arrest against complainant. When Crim. Case No. 2003-37 was filed on June 30, 2003, he issued an Order⁴⁵⁶ in order not to frustrate the ends of justice. While he had the initial impression that the case against complainant is civil in nature, he did not immediately dismiss the case as he had to base his resolution on the testimonies of both parties to the case. Respondent judge charged that the complaint against him was malicious and baseless.

After evaluation, the Office of the Court Administrator (OCA) recommended that respondent be held liable for gross ignorance of the law as charged, and fined two thousand pesos (₱2,000.00).

Section 3, Rule 112 of the Revised Rules of Criminal Procedure⁷ outlines the procedure for the conduct of a preliminary investigation, viz:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.

With respect to issuances of warrants of arrest, Sec. 6 (b) of the same rule provides:

SEC. 6. When warrant of arrest may issue.- x x x x (b) By the Municipal Trial Court.- x x x x When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds 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.

Although judges of first level courts are now no longer authorized to conduct preliminary investigations,⁸ respondent judge nevertheless betrayed unfamiliarity with the aforequoted rules at the time that he was expected to apply them.

First, he issued a warrant of arrest against herein complainant upon her mere non-appearance during the first date scheduled for the preliminary investigation of the case. What respondent judge should have done was to follow Sec. 3 (d) which clearly authorizes him to resolve the complaint instead based on the evidence presented by the complainant alone. Respondent judge cannot coerce herein complainant into attending the preliminary investigation. An accused can waive his right to be present thereat, and cannot be compelled to attend the same.⁹ Certainly, a warrant of arrest may not be issued simply to secure his presence.

Second, respondent judge disregarded Sec. 6 (b) which provides that a warrant of arrest may be issued only after examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers. Three (3) conditions must concur before a warrant of arrest may be issued, viz: (1) the investigating judge must have examined in writing and under oath the complainant and his witnesses by searching questions and answers; (2) he must be satisfied that probable cause exists; and (3) there is an immediate necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.¹⁰1987 Constitution which provides:

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. (emphasis ours)

and Batas Pambansa Blg. 129, otherwise known as The Judiciary Reorganization Act of 1980, which provides:

No warrant of arrest shall be issued by the judge in connection with any criminal complaint filed with him for preliminary investigation, unless after an examination in writing and under oath or affirmation of the complainant and his witnesses he finds that a probable cause exists.¹¹

Respondent judge is charged with gross ignorance of the law. However, to warrant a finding of gross ignorance of the law, the error must be so gross and patent as to produce an inference of bad faith.¹² The acts complained of must not only be contrary to existing law and jurisprudence, but were also motivated by bad faith, fraud, dishonesty, and corruption.¹³¹⁴

In the case at bar, there was no allegation whatsoever that respondent judge was motivated by bad faith, malice or corruption when he issued the premature warrant of arrest. Be that as it may, however, we hold him administratively liable for his unfamiliarity with the rules on the conduct of preliminary investigations. We have always exhorted judges to be conversant with basic legal norms and precepts as well as with statutes and procedural rules.¹⁵¹⁶Code of Judicial Conduct¹⁷¹⁸

Since herein complainant was not actually detained by reason of the warrant issued by the respondent, we accept the OCA’s recommendation that respondent be imposed a fine of ₱2,000.00.

IN VIEW WHEREOF, respondent Judge Romeo A. Almajar, MCTC-Salay, Misamis Oriental, is FINED Two Thousand Pesos (₱2,000.00), for ignorance of the rules on preliminary investigations, with WARNING that a repetition thereof or of similar offenses shall be dealt with more severely.

SO ORDERED.

REYNATO S. PUNO

Associate Justice

WE CONCUR:

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

ROMEO J. CALLEJO, SR. DANTE O. TINGA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice

Footnotes

¹ Complaint dated October 10, 2003, with Annexes; Rollo, pp. 16-28.

² Criminal Case No. 2003-37.

³ Dated June 18, 2004, with Annexes; Rollo, pp. 31-40.

⁴ Id., p. 34.

⁵ SEC. 6. When warrant of arrest may issue.- x x x x (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 may be conducted by either the judge or the prosecutor. x x x x When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds 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.

⁶ SEC. 5. Inherent powers of courts.- Every court shall have power: x x x x

(e) To compel the attendance of persons to testify in a case pending therein.

⁷ Effective December 1, 2000.

⁸ Effective October 3, 2005 per Resolution dated August 30, 2005 in A.M.

No. 05-8-26-SC Re: Amendment of Rules 112 and 114 of the Revised Rules on Criminal Procedure by Removing the Conduct of Preliminary Investigation from Judges of the First Level Courts.

⁹ Cruz v. Salva, 105 Phil. 1151 (1959).

¹⁰Samulde v. Salvani, Jr., 165 SCRA 734 (1988).

¹¹ Sec. 37, penultimate paragraph.

¹²Joaquin v. Madrid, 439 SCRA 567 (2004).

¹³ Dadizon v. Asis, 419 SCRA 456 (2004).

¹⁴ Joaquin v. Madrid, supra.

¹⁵ Almonte v. Bien, A.M. No. MTJ-04-1532, June 27, 2005; Pascual v.

Jovellanos, 390 SCRA 333 (2002); Panganiban v. Cupin-Tesorero, 388 SCRA 44 (2002); Villanueva v. Almazan, 328 SCRA 230 (2000).

¹⁶ Cabrera v. Zerna, 388 SCRA 249 (2002).

¹⁷ Promulgated on September 5, 1989 and took effect on October 20, 1989.

¹⁸ See Canon 1, Rule 1.01, and Canon 3, Rule 3.01.