6/7/2020
E-Library - Information At Your Fingertips: Printer Friendly
The DOJ stresses the necessity of the restraint imposed in DOJ Circular No. 41 in that
to allow the petitioners, who are under preliminary investigation, to exercise an
untrammelled right to travel, especially when the risk of flight is distinctly high will
surely impede the efficient and effective operation of the justice system. The absence
of the petitioners, it asseverates, would mean that the farthest criminal proceeding
they could go would be the filing of the criminal information since they cannot be
arraigned in absentia.[105]
The predicament of the DOJ is understandable yet untenable for relying on grounds
other what is permitted within the confines of its own power and the nature of
preliminary investigation itself. The Court, in Paderanga vs. Drilon,[106] made a
clarification on the nature of a preliminary investigation, thus:
A preliminary investigation is x x x an inquiry or proceeding for the purpose
of determining whether there is sufficient ground to engender a well founded
belief that a crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof, and should be
held for trial. x x x A preliminary investigation is not the occasion for the full
and exhaustive display of the parties' evidence; it is for the presentation of
such evidence only as may engender a well grounded belief that an offense
has been committed and that the accused is probably guilty thereof.[107]
It bears emphasizing that the conduct of a preliminary investigation is an implement of
due process which essentially benefits the accused as it accords an opportunity for the
presentation of his side with regard to the accusation.[108] The accused may, however,
opt to waive his presence in the preliminary investigation. In any case, whether the
accused responds to a subpoena, the investigating prosecutor shall resolve the
complaint within 10 days after the filing of the same.
The point is that in the conduct of a preliminary investigation, the presence of the
accused is not necessary for the prosecutor to discharge his investigatory duties. If the
accused chooses to waive his presence or fails to submit countervailing evidence, that
is his own lookout. Ultimately, he shall be bound by the determination of the prosecutor
on the presence of probable cause and he cannot claim denial of due process.
The DOJ therefore cannot justify the restraint in the liberty of movement imposed by
DOJ Circular No. 41 on the ground that it is necessary to ensure presence and
attendance in the preliminary investigation of the complaints. There is also no authority
of law granting it the power to compel the attendance of the subjects of a preliminary
investigation, pursuant to its investigatory powers under E.O. No. 292. Its investigatory
power is simply inquisitorial and, unfortunately, not broad enough to embrace the
imposition of restraint on the liberty of movement.
That there is a risk of flight does not authorize the DOJ to take the situation upon itself
and draft an administrative issuance to keep the individual within the Philippine
jurisdiction so that he may not be able to evade criminal prosecution and consequent
liability. It is an arrogation of power it does not have; it is a usurpation of function that
properly belongs to the legislature.
elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/64165
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