Probable cause, De Lima, GMA, and Guevarra

To file a criminal case in court, all that the prosecutors of the Department of Justice (DOJ) need is to determine “probable cause,” which — according to jurisprudence — is “… a state of facts in the mind of the prosecutor as would lead a person of ordinary caution to believe, or entertain an honest or strong suspicion, that a thing is so.” The definition is so abstruse that it really gives almost blanket discretion to fiscals.

And yet, to secure a conviction, the prosecutors are required to show “proof beyond reasonable doubt,” a much higher standard that — according again to jurisprudence — refers to “that degree of proof which, after an examination of the entire records of the case, produces in an unprejudiced mind moral certainty of the culpability of the accused.”

This huge difference in the standard for filing criminal charges and for securing conviction accounts to a large degree for the poor conviction rate of prosecutors.

No less than the Supreme Court in an en banc resolution dated Jan. 8, 2013, noted the startling statistic that “80% of the backlog in the first and second level courts involves criminal cases…” And in another resolution, dated Sept. 5, 2012, it cryptically observed that “about 40% of criminal cases are dismissed annually…” due to mishandling.

The net result of this poor conviction rate is the needless clogging of court dockets, the unnecessary detention of the poor who could not afford to post bail, and the appalling congestion of our jails.

Worse, in capital offenses, the accused is detained indefinitely without bail when the evidence of guilt is strong. This is the internationally reverberating lament of Sen. Leila De Lima, who has been detained without bail for four years now due to an arrest warrant issued by a regional trial court arising from a criminal charge involving prohibited drugs which the DOJ prosecutors filed on the basis of “probable cause.”

This was the same pitiful lament of former president Gloria Macapagal-Arroyo (GMA) who was chased and arrested at the Ninoy Aquino International Airport — ironically, and some say, with a dash of karma — because of the so-called “watch list orders” of then Justice Secretary Leila De Lima that defied a temporary restraining order of the Supreme Court; and later on, by an order of arrest issued by a regional trial court arising from an information filed by the DOJ prosecutors; and much later on, by another one for plunder by the Office of the Ombudsman.

All these detentions were made on the basis of “probable cause,” only for GMA to be acquitted and released by the Supreme Court on the main ground that the prosecutors failed to prove the charges “beyond reasonable doubt.” Her acquittal came after more than four years of detention in a hospital near where De Lima is now confined.

This revolving door of “probable cause” and “proof beyond reasonable doubt” must end. And I think this can be ended by Justice Secretary Menardo I. Guevarra who, in my book, possesses sufficient gravitas, integrity, and independence to do it without partisanship, having served the immediate past — and is still serving the present — President of the Republic.

How? By issuing a new set of guidelines defining “probable cause” with higher thresholds than the current confusing characterization, in order to bar prosecutors from filing cases that are dismissible on the plain ground that the information is wantonly insufficient and/or that the evidence is direly wanting. Why should they sue if they cannot secure the conviction of the accused? (See my 11/23/14 piece.)

Those guidelines should require prosecutors — as suggested by a reader who requested anonymity — to certify under oath that the allegations in the information are enough to constitute the crime charged, that the evidence on hand would pass the test of legal admissibility, and that such evidence would be sufficient to secure the conviction of the accused despite the defenses proffered by the accused during the preliminary investigation, or reasonably expected to be proffered during the trial.

This sworn certification should deter the filing of frivolous, reckless, malevolent, and politically motivated charges that merely clog the judicial dockets, deprive our people of their constitutional right to “life, liberty or property without due process of law (and)… den(y) [them] the equal protection of the laws.”

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