Air-tight proof must be the rule

Privileged Spits

Air-tight proof must be the rule

Dyaryo Magdalo columnist and Editor-in-Chief

         This is urging Justice Secretary Leila De Lima to adopt the “air-tight evidence” rule in deciding whether to charge a person in court.

            This is necessary in the face of rampant abuse by the prosecutors of the phrase “probable cause” and the fact that majority of the people have lost trust in the prosecutors they call “fix-cals.”

Abuse of "probable cause":

         “Probable cause” is the most abused and most misunderstood legal phrase in criminal law, at least in the Philippines where the power to say there is “probable cause” to hail a person to court is in the hands of a prosecutor.

        Actually, the same is the definition of “probable cause” in the United States of America where the power to say there is “probable cause” is  in the hands of a grand jury, a group of ordinary laymen, not lawyers, raffled and interviewed from the community whose faces and names are hidden while they serve for six months.

         If no complaint is heard about “probable cause” abuse from the USA, complaints about “probable cause” abuse is plenty in the Philippines where fairness is the exception.

Who abuse “probable cause” in the Philippines?

Primarily, it is abused by the prosecutors who are so bold in doing so because they believe that the law that makes it their exclusive power to do so protects their works that no one can question them in their exercise of their sole power.  

Courts' abdication of duty:

These abuses often come unchecked because of the actual happening of the tradition of respect given by judges to the prosecutors.  

Contrary to their obligations to Section 2 of Article III of the Philippine Constitution, that is the equivalent of the Fourth Amendment of the US Constitution, the courts almost automatically approve the criminal information sheets filed by the prosecutors.

What does Section 2 of Article III of the Constitution say that is material to the issue of “probable cause”?

This is the statement in that section that says: “…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.”

The command of the constitution is very clear.

This provision clearly says that “probable cause” must be determined “personally” by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.

With this command of the Constitution, the people unfairly charged by the prosecutors could have been protected by the judges who could rule there was no “probable cause” to hold the accused for trial and detain him as long as the trial and the judgment are not completed.

If that is the command of the Constitution that is the highest law of the land, why is it that the courts in the country are behaving otherwise and not taking pains to examine first all the cases filed by the prosecutors?

This author cannot answer this question except for stating the nearest he can think of: respect by the judge to the prosecutors and to the prosecutors’ exclusive power to determine who they want to hail to court.   

In other occasions, it is conspiracy that compelled the judges to approve immediately the charges even without examining the complainant, the witnesses, and other evidence.

It is sad.  The judges who are supposed to be the first court protector against injustices are abdicating their duties to guard against abuses by the prosecutors.  This is the real thing.
Given the fact of life that the judges respect the prosecutors’ words, it is with more reason that the prosecutors should be prudent, conscientious, and unbiased.

This is what the prosecutors should be in deciding whether to hail to court the persons being accused, either by means of an arrest made by the police or other law enforcers, or by means of a regular preliminary investigation initiated by private complainants.

Prosecutors can destroy life:

Sigh. The abusive prosecutors sit comfortably on the thought that the “probable cause” they proclaim is too tricky and too abstract to be understood by laymen and too hard to be undone even by a judge.  Among the difficult questions is whether a set of evidence presented is sufficient to say whether there is “probable cause” to charge a person in court and hold him for trial.

Because of these realities, the prosecutors can easily take advantage of the lack of understanding by the laymen if the prosecutors want to file a case in court against persons for motives of money, defense of ego, or defense of the reputation of a class of persons or a group. 

The abuse of “probable cause” is also done by prosecutors who never care that their decisions are products of guess-works due to laziness or lack of intellectual capacity to discern issues of facts.

            In other words, even with just little probability that one person could have been the perpetrator of any crime that is punishable with life imprisonment or reclusion perpetua, our prosecutors can destroy one’s life by just filing any case that accuses of an offense. 

Much more destruction would be caused to persons charged by the prosecutors with criminal offense that do not allow bail for a temporary liberty.

            Imagine the consequence of being charged with a non-bailable offense!

A person has to surrender and consent to be detained as long as the case is not terminated if he wants to prove his innocence to the charge of murder or parricide filed by the concerned prosecutor.

Much more revolting it becomes upon knowing that the case would run to at least one year and this means one year of detention of the innocent.   If the person succeeded in proving his innocence, how can the honor and freedom lost be recovered?

            So that it is seen how a prosecutor becomes a menace of the society when he gets mad at anybody and he say there is “probable cause” out of fabricated or insufficient testimonies and documents to impugn the worst assault against the man he is angry at. 

He is equally an instrument of evil even if the prosecutor is honest but he does not care whether his decision is correct or not.

For being lazy or for the purpose of compelling the accused to give at least P200,000 in exchange for non-filing of the accused, the prosecutors have many tools in law that are instead used for abuse.

Some of these tools that this writer will write about in separate articles are "evidentiary" rule, positive-over-negative assertions rule, and presumption of regularity in the affidavits signed by police and other law enforcers.

 (Note that "evidentiary" is not found in the English dictionary and yet the Supreme Court invented this word.)

Cases of Lacson and Webb:

            Look at Senator Panfilo Lacson.

Lacson hid because if he faced the accusations that he allegedly masterminded the murders of publicist Salvador “Bubby” Dacer and the latter’s driver Emmanuel Corbito, it meant Lacson must be imprisoned first while his case was being tried. 

And if Lacson is indeed innocent, it is devastating to his person, to his family, and to his honor to be charged with double murder that does not allow bail for temporary liberty.

Knowing that the Court of Appeals threw out the case against Lacson that the appellate tribunal found there was no probable cause that Lacson could have killed Dacer and Corbito, it means that the CA was not convinced that the evidence presented by the prosecutors have not been enough to say there was “probable cause” that the senator is guilty.

In other words, it confirms the argument of the lawmaker that he was only charged because his political opponents, Gloria Arroyo and Mike Arroyo, ordered the state prosecutors to do so as the couple’s revenge for exposing “Jose Pidal” scandals and many others.

So that if Lacson ran and hid, it shows more now that it does not necessarily follow, or it is non sequitor, that he is guilty.   From that, we say it is a fallacy to state that flight means guilt and to say that the innocent is bold as a lion. Rather, these phrases born by time are not true for all cases.

Supposing Lacson did not hide and he squarely faced the charges but he had to be jailed, can we say there is a good reason to justify his detention after the Court of Appeals declared there was no sufficient evidence to prove the case against him?

            See Hubert Webb and assume that the decision of the Supreme Court acquitting him is correct. 

Will it be justice to be detained for the long time that his case was yet being tried by the Parañaque Regional Trial Court only to be proclaimed as “innocent” by the Supreme Court after 15 years?

            If persons possessed of power and wealth like Lacson and Webb have become victims, how much worse would happen to ordinary individuals?

            The bottom line here is conscience.

Air-tight evidence standard:

            This means that if a prosecutor decides to file a case of murder or other case that carries non-bailable offense, the prosecutor must satisfy his impartial conscience that he is more or less convinced that he has a good chance to get conviction.  Otherwise, even if he knows that the whole mass of evidence he has are not enough, he will be pricked by the revolt in his mind and of the upright’s.

            The judges must also now do their duty to examine and approve or disapprove what the prosecutors are feeding them.  Else, it will be a repetition of injustice and an abdication of their constitutional duty to determine personally “probable cause” to justify holding the accused in detention while the trial is going on.

            If ever there is a legal standard that is followed to avoid charging persons of crimes even if there is lack of evidence, American jurisprudence says that the grand juries must satisfy their conscience that the evidence presented to them by the prosecutor are just a little less than the amount needed to convict.

            In the mind of this writer, the fair standard shall be one where the available pieces of evidence stand a good chance to win conviction.  By this way, at least the prosecution cannot be pricked by his conscience even if it turns out that the best of his evidence was not enough to convict. To follow a standard lower than this will result in injustice.

            Much better is when the prosecutors and the judges follow the standard of “air-tight” evidence.  This is the standard that retired Supreme Court Justice Conchita Carpio Morales said she would use in dispensing her duties as the Ombudsman.

            I quote what she said in her first press conference: “You just don’t go berserk in filing a case if you believe the case does not merit conviction just to please the public expectation.” In determining whether to file a criminal case in court, she added a caution not to rely too much on witnesses who sometimes are “barking left and right.”

Weakness of the system:

            This “probable cause” abuse can be blamed on the natural weakness of the system of deciding who to charge in court, which system exposes the prosecutors to influences of money, power and fear.  The same vulnerability opens one-judge court to the same forces when deciding the fate of the accused, as to the approval or disapproval of the “probable cause” being recommended by the prosecutors and as to the conviction or acquittal.

            One thing is sure here, though.  The system of grand juries removes almost all possibilities for influences to dictate on how “probable cause” is decided by the 23 persons because their names and faces are hidden from the public. 

The system of trial jury puts up a very high obstacle for the rich or powerful accused or accuser to try to influence the jurors. 

One reason why trial jury is almost air-tight against influence is that once the trial begins, it was only at that time when jurors are seen by those who attend court hearings. 

The hearing continues daily until the jurors give their decision and the judge applies punishments based on the findings of the jury.

Besides, jurors are kept in a secret place if those involved in the case are big personalities like the Ampatuans to remove virtually all opportunities to get in touch with the jurors.   

Other justifications for air-tight evidence rule:

        This is not invoking the setting aside of the rule of detention while the case for a heinous crime is being tried. This is because its purpose is noble and that is to protect the rest of the citizens from the dangers posed by criminals. 

However, it must be recognized also that it is more injustice to detain an innocent person than committing murder or another heinous crime. 

It must still be recognized that it is better to let a hundred criminals roam the streets than imprison one innocent man. 

It must also be recognized that in deciding to charge one person in court for a heinous crime, the prosecutors must recognize the need to think over a thousand times whether they can conscience charging one person for a heinous crime in court considering that they would be detaining these persons for years while the cases are being tried.

Perhaps, for the prosecutors to better understand the call of conscience, they should place their selves in the shoes of the accused and think a thousand times whether they will not revolt in injustice.


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