With Due Respect

Overprotective of the guilty?

Why is our criminal justice system overprotective of the guilty? Why does it take so long to investigate, prosecute and convict criminals? After the tedious process is completed, why is the conviction rate still dismal? Why are our neighbors, like Singapore and Malaysia, better able to control criminality and corruption? So readers keep asking week after week.

Adversarial system. Let me attempt some explanations and answers. To begin with, our criminal justice system passionately safeguards individual life and liberty. It adheres to the maxim that it is better to acquit 10 guilty persons than to convict one innocent. (Unfortunately, the ratio of 10 to 1 sometimes worsens to 100 to 1, or even 1,000 to 1, when corruption, negligence and incompetence, if not outright malevolence, seep into the system.)


Pursuant to this adage, our judiciary has adopted the adversarial method of dispensing justice whereby magistrates sit passively and objectively during trials. They are not allowed to assist prosecutors by asking too many questions that tend to show the guilt of the accused. Magistrates must always maintain the “cold neutrality of an impartial judge.” They act like referees, not players, in a basketball game. They cannot take sides.

Hence, judges must depend entirely on (1) the facts proven by the parties according to the law on evidence, or (2) those admitted or confessed by the accused, or (3) those “judicially noticed,” again according to the law on evidence.


Judges cannot convict or acquit an accused based on their personal knowledge of events or facts they may have witnessed or experienced. Should they have such information, they should inhibit as judges and take the stand as ordinary witnesses, and be subjected to cross-examination by the opposite party.

Inquisitorial or nonadversarial is the system employed in some countries in Europe and Latin America. Under this system, judges are authorized and encouraged to participate actively (1) in searching for evidence, both incriminatory and exculpatory, and (2) in examining witnesses proactively, all in the name of speedy justice. This system stresses the attainment of substantial justice, sometimes at the expense of procedural rights.

While our judiciary strictly adheres to the adversarial system, the prosecutorial agencies, including the Office of the Ombudsman (OOO), the Department of Justice (DOJ) and the various city/provincial prosecutors use the inquisitorial method.

Hence, prosecutors are mandated to help victims of crimes. Moreover, during preliminary investigations, affidavits of both parties are enough. Trial-type questions and answers are not required. Opposing parties are not allowed to cross-examine the affiants. At most, prosecutors may, if they so desire, ask “clarificatory” questions.

Prosecutors may even call police agencies and the National Bureau of Investigation to assist them. They need not wait for complaints to be filed before conducting their crime investigations.

To be more specific, the Constitution mandates the OOO to “investigate on its own or on complaint by any person any act or omission of any public official … [that] appears to be illegal, unjust, improper or inefficient.” Thus, it can investigate any public official without need of any outside complainant.

Accordingly, the OOO has an internal unit called Field Investigation Office (FIO) that could file complaints in the OOO. In fact, the FIO served as the complainant in the plunder case against former president Gloria Macapagal-Arroyo, which I wrote about last week and which


Ombudsman Conchita Carpio Morales dismissed for lack of “any factual or legal basis.”

Probable cause. Prosecutors, whether of the OOO or the DOJ, are authorized by law to file criminal charges once they find “probable cause.” Let me repeat, to file criminal charges, including capital offenses that are not bailable “when the evidence of guilt is strong,” all the prosecutors need is “probable cause,” which is defined as “the existence of such facts and circumstances as would excite the belief in a reasonable mind that the respondent is guilty of the crime complained of.”

Yet, to secure the conviction of the accused, the law requires “proof beyond reasonable doubt.” To stress, to file a criminal case and thus cause the arrest and indefinite detention of the accused in capital offenses like plunder or illegal detention, all that is needed is probable cause. But to secure conviction, prosecutors are required to reach a very high standard: “proof beyond reasonable doubt.”

Consequently, if all that prosecutors would prove during the trial is probable cause (since that is all they may have at hand), then the

accused would surely be acquitted because their guilt could not be proven beyond reasonable doubt by the evidence submitted. No wonder prosecutors have such low conviction rates.

Is this not unfair to those accused of capital offenses and detained indefinitely while the case is pending trial (which could take several years), only to be acquitted due to insufficiency of evidence? Is this not also a waste of time and resources of the prosecutors and the state? Should not prosecutors make sure they have enough evidence to convict before filing criminal cases, especially capital offenses?

In future columns, I will continue discussing this subject and take up constitutional rights including the oft-cited concept of “due process” that, ironically, is sometimes abused and misused to miscarry justice.

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TAGS: criminal justice system, Guilty, innocent, justice, probable cause
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