Dear Chief Justice Artemio Panganiban:
I read with keen interest your Oct. 4 article “Probable cause, De Lima, GMA, and Guevarra.”
I agree that the standard of probable cause in preliminary investigations of criminal information is problematic in relation to the requirement of guilt beyond reasonable doubt when it comes to trial and conviction.
During my stint as DOJ secretary, I initiated the close coordination between the National Prosecution Service and the National Bureau of Investigation in the case build-up of criminal complaints, starting at least with the high-profile cases. The intent was to institutionalize the mindset among investigators and prosecutors that while it is easy to file criminal cases, they should be prepared as early as the preliminary investigation stage to establish the evidence that will also meet the standards of guilt beyond reasonable doubt. This is also to avoid fishing expeditions, where the prosecution, due to lack of evidence acquired during the preliminary investigation stage that would meet the standard of guilt beyond reasonable doubt, is faced with two options during the trial stage: either let the case be dismissed, or to be more enterprising and imaginative in the procurement of evidence, either legally or illegally.
Unfortunately, the latter is what is happening in my three illegal drug cases. No amount of rules on standards of proof can possibly prevent the President from using the entire machinery of government to send one person to jail due to a deep-seated personal and political vendetta.
This is why part of the solution lies in looking at the nature of political persecution cases and the power of the executive vis-à-vis the other stakeholders in the justice system from the judicial and legislative branches of government. I always turn to the rationale of the three-judge system for the Sandiganbayan. For cases involving officials with Salary Grade 27 and above, which sometimes partake of highly political criminal cases that usually involve politicians, the law saw it fit that such cases be tried by three judges as a necessary means to avoid political pressure or corruption in their decision-making. This is not foolproof, but it is certainly better than one judge deciding the fate of a politician who could merely have been the victim of a politically-motivated setup and trumped-up charges, like myself.
The answer to our problem probably lies between resolving the problematic probable cause as a standard in preliminary investigations and ensuring the independence of our justice system and judges from political pressures coming from the executive branch, especially the kind that is brought to bear by strongmen and authoritarian presidents.
I already filed a bill restructuring the initial stages of our criminal justice system. It has two features: First, it makes the prosecution service an active part in the criminal investigation and case build-up stage. Second, the preliminary investigation stage is basically taken over by a trial judge whose court has jurisdiction to try the case, thereby roughly adopting the grand jury system in the United States, where a judge with the power to summon witnesses and require the production of evidence, primarily decides on whether a criminal charge should be brought before the courts. Varying standards of proof, which are higher than the probable cause standard, are proposed for these stages.
I hope I have contributed to your unceasing and laudable reimagination of the justice system to better serve our people and legal practitioners. (The letter has been edited to fit space.—Ed.)
SEN. LEILA M. DE LIMA