Don’t charge what you can’t prove | Inquirer Opinion
With Due Respect

Don’t charge what you can’t prove

Praiseworthy, though IMHO can still be improved, is the Feb. 10, 2023 order of Justice Secretary Jesus Crispin C. Remulla to “all prosecutors handling criminal cases … cognizable by the Municipal Trial Courts (MTCs), Municipal Trial Courts in Cities (MTCCs), and Metropolitan Trial Courts (MeTCs) … to carefully assess all their cases and to determine if each has a reasonable certainty of conviction based on the evidence (at) hand, availability of witnesses, and continued interest of private complainants. If, upon assessment by the handling prosecutor, it is determined that there is no such reasonable certainty of conviction, the said handling prosecutor is ordered to immediately file the proper motion to withdraw [the] information.”

IN SHORT, DON’T FILE AND PROSECUTE CHARGES YOU CAN’T PROVE with “reasonable certainty of conviction,” and withdraw those already filed. One does not have to be a lawyer to understand the logic of this statement. If this is so, why then has it not been said and done soon enough? The answer lies in the many befuddling standards used in judging legal controversies and investigations.


Thus, to file a criminal case in court, prosecutors are required by existing law to determine merely “probable cause,” a standard 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.”

This definition is so abstruse that it really gives prosecutors almost blanket discretion because “probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that … the act or omission complained of constitutes the offense charged…”


And yet, to secure a conviction, prosecutors are required—also by existing law—to show “proof beyond reasonable doubt,” a much higher standard that—according also 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 …”

GIVEN THE FOREGOING EXPLANATION, Remulla’s order is ground-breaking because it changes the standard for filing and prosecuting cases from “probable cause” to “reasonable certainty of conviction.” In fact, I will go even further to say that the standard for filing prosecuting cases should be the same as that for securing conviction; that is, the evidence—both testimonial and documentary—at hand before a case is filed should be enough to convict the accused “beyond reasonable doubt.” To effect these changes, the law—particularly the Rules of Court—needs to be revised.

As I earlier stated, Remulla’s order, IMHO, can be improved to cover not only minor cases that are cognizable by the lowest courts—the MTCs, MTCCs, and MeTCs but also, and more vitally, ALL CRIMINAL CASES, including those cognizable by the Sandiganbayan and the regional trial courts (or RTCs) where capital offenses are prosecuted. In this way, his order will also unclog court dockets, relieve prosecutors from overwork, and decongest our jails as well.

As early as Jan. 8, 2013, the Supreme Court, in an en banc resolution, noted a startling statistic that “80% of the backlog in the first and second level courts involves criminal cases…” And earlier, on Sept. 4, 2012, it cryptically observed that “about 40% of criminal cases are dismissed annually…” Since then, the situation has not improved; it has deteriorated.

WORSE, IN CAPITAL OFFENSES, THE ACCUSED CAN BE DETAINED INDEFINITELY. This is the repeated lament of former senator Leila de Lima who has been detained without bail for over six years now due to a charge filed on the basis of “probable cause.”

And as I wrote years ago, this was the same pitiful lament of former president Gloria Macapagal Arroyo who was chased and arrested at the Ninoy Aquino International Airport because of the so-called “watch list orders” of—ironically—then DOJ Secretary De Lima that defied a temporary restraining order of the Supreme Court. After more than four years of detention, Arroyo was acquitted and released by the Supreme Court on the main ground that the prosecutors failed to prove the charges “beyond reasonable doubt.”

To implement the above changes and to achieve their noble purposes, Remulla’s order, I believe, should require prosecutors to certify under oath that the allegations in the information are enough to constitute the crime charged, that the evidence at hand would pass the test of legal admissibility and that such evidence would be sufficient to secure the conviction of the accused.


This sworn certification should deter the cyclical weaponization of criminal prosecutions, the filing of frivolous, reckless, malevolent, and politically motivated charges that merely clog the judicial dockets, harass political opponents, and 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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