#CJSearch: Judges must thoroughly examine search warrants – Gesmundo

Supreme Court Associate Justice Alexander Gesmundo said on Friday, March 12, that judges must thoroughly examine all evidence and bases before issuing search warrants.

"[The Judge] cannot solely rely on the affidavits of the complainant in the witneses they produced because that would be in violation of the Constitution, as well as the rules on criminal procedure," said Gesmundo during his Judicial and Bar Council (JBC) public interview on Friday for the position of chief justice.

The question was asked by Chief Justice Diosdado Peralta, JBC's ex-officio chairperson, in light of the criticism that some courts have turned into "warrant factories." Search warrants issued by judges in Manila resulted in killings of activists in the Calabarzon region.

But the question fell short of probing what the Supreme Court can do to address these concerns.

Peralta said it was just an academic discussion, and not a prejudgment of any case. The question was not asked of Senior Associate Justice Estela Perlas Bernabe who was first interviewed in the morning. The JBC took a break, after which members asked more about issues related to current events.

Gesmundo said the judge must do his own personal examination on the need 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," said Gesmundo.

Activists have pointed out that judges had issued a set of several search warrants in one day for multiple people, raising the question of how thorough their examinations were.

Getting records

Gesmundo also said that it's important to get records of the search warrant when charges are eventually filed against the person searched.

This is another crucial issue in the activists' cases, since search warrants also usually resulted in arrests and charges being filed against them.

When activists sought to quash the validity of the search warrants, lower court judges differed in treating the cases.

Reina Mae Nasino's judge in Manila did not subpoena records. Lady Ann "Icy" Salem's judge in Mandaluyong subpoenaed the records. The judge of 5 activists in Bacolod did not subpoena records, but she conducted an ocular inspection of the property.

"The judge before whom the case was filed should secure the records in the other court that issued the search warrant, because how can you possibly...what will be your basis to quash a search warrant unless you have seen the records of the proceedings in the other court?" asked Gesmundo.

The judge in the Nasino case, Manila Regional Trial Court (RTC) Branch 20 Judge Marivic Balisi Umali, is facing an administrative complaint before the Supreme Court's Judicial Integrity Board (JIB).

Human rights lawyers also asked that the Supreme Court direct all judges to automatically require policemen to report how the search warrant was executed if the search resulted in a death. In Cavite, activist Manny Asuncion was killed in Dasmariñas town as the police searched his home in Rosario town.

But no follow-up was asked about this issue.

Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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