On October 4, 2020, former Chief Justice Artemio V. Panganiban wrote a column in the Philippine Daily Inquirer entitled “Probable Cause, De Lima, GMA, and Guevara”.

Its opening paragraph states: “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 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.

In the said column, Panganiban quoted the en banc resolution of the Supreme Court dated January 8, 2013 that “80% of the backlog in the first and second level courts involves criminal cases”. And another resolution dated September 5, 2012 where the SC “cryptically” observed that “about 40% of criminal cases are dismissed annually…” due to mishandling.

Panganiban noted that: “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.”

Panganiban continued: “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 criminal charge involving prohibited drugs which the DOJ prosecutors filed on the bases 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.”

Later on in the same column, he argued that: “This revolving door of “probable cause” and “proof beyond reasonable doubt” must end. And I think this can be ended by Justice Secretary Menardo Guevarra who, in my book, possesses sufficient gravitas, integrity, and independence to do it without partisanship, having served he 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 su if they cannot secure the conviction of the accused?”

On October 11, 2020, the former Chief Justice followed up with a column entitled “Encouraging reactions from SC, DOJ, and bar.”

He wrote that the chief of staff of Chief Justice Diosdado Peralta texted that he would include (probable cause) in the agenda on the Court’s Committee on the Revision of the Rules on Criminal Procedure chaired by the CJ.

He quoted Justice Secretary Guevarra’s reaction to his October 4 column via text message which says in part, “thank you for the many good things that you have said about me in your PDI column, which I regularly read! (E)specially…your article yesterday on probable cause. Alam ninyo, matagal na rin po naming pinag-uusapan ang issue na yan sa National Prosecution Service. You hit the nail right on its head. I intend to do further consultations…with the Supreme Court…”

A prosecutor friend sent me his research on his resolutions for dismissing cases which may have on their faces probable cause but which is insufficient to convict the accused.

A preliminary investigation is merely inquisitorial and is only conducted to aid the prosecutor in preparing the information. It serves a two-fold purpose: first, to protect the innocent against wrongful prosecutions; and second, to spare the state from using its funds and resources in useless prosecutions. 

It is worth emphasizing that preliminary investigation is in effect a realistic judicial appraisal of the merits of the case; sufficient proof of the guilt of the criminal respondent must be adduced so that when the case is tried, the trial court may not be bound, as a matter of law, to order an acquittal. Although a preliminary investigation is not a trial and is not intended to usurp the function of the trial court, it is not a casual affair; the officer conducting the same investigates or inquiries into the facts concerning the commission of the crime with the end in view of determining whether or not an information may be prepared against the accused. After all, the purpose of preliminary investigation is not only to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof and should be held for trial; it is just as well for the purpose of securing the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial. More importantly, in the appraisal of the case presented to him for resolution, the duty of a prosecutor is more to do justice and less to prosecute. (Ma. Belen Flordeliza C. Ang-Abaya, et al vs Eduardo G. Ang, GR no. 178511, December 4, 2008.)

It is also worth noting that in the case of People vs. Pineda, 20 SCRA 748, the Court ruled:

A prosecuting attorney, by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to prop up the averments thereof, or that the evidence at hand points to a different conclusion. This is not to discount the possibility of the commission of abuses on the part of the prosecutor. But we must have to recognize that a prosecuting attorney should not be unduly compelled to work against his conviction. In case of doubt, we should give him the benefit thereof. A contrary rule may result in our courts being unnecessarily swamped with unmeritorious case. Worse it will violate a criminal suspect’s right to due process — the sporting idea of fair play — may be transgressed.

Also in Alberto vs. de la Cruz, 98 SCRA 406, reiterated in Bautista vs. City Fiscal of Dagupan 131 SCRA 132, the Court further held:

It is the rule that a fiscal by the nature of his office, is under no compulsion to file a particular criminal information where he is not convinced that he has evidence to support the allegations thereof. Although this power and prerogative of the fiscal to determine whether or not the evidence at hand is sufficient to form a reasonable belief that a person committed an offense, is not absolute and subject to judicial review, it would be embarrassing for the prosecuting attorney to be compelled to prosecute a case when he is in no position to do so, because in his opinion he does not have the necessary evidence to secure a conviction, or he is not convinced of the merits of the case.

It is therefore fair to dismiss a complaint when after an investigation it was found that the evidence against the respondent is insufficient and weak to establish even a prima facie case.

Justice Hilarion Aquino in his article Revisiting Legal and Judicial  Ethics: Challenges and Perspectives gives an excellent and comprehensive discourse on this controversial topic and posed the following ethical dilemma and discussed it for serious consideration by the public prosecutors:

“Is it ethical for a prosecutor to file the Information in the awareness that all the evidence that he has establishes only “probable cause”, which of course is insufficient to convict the accused.”

According to Justice Aquino, the rule is that finding of probable cause is necessary for the filing of the information  but it does not follow that, where there is probable cause-without anything more-the information must be filed. Thus, it is incumbent upon public prosecutors to carefully balance the interests of the state with that of the accused as a private individual. 

Justice Aquino further said:

“Is it ethical to indict a person for the commission of an offense which immediately and inevitably puts him and the members of his family to shame, incarcerates him if the crime charged is non-bailable, or even if bailable, if he cannot afford to post bail, burdens him with expenses of litigation and attorney’s fees, and makes him suffer anxiety and the inconveniences of trial with time and effort spent, when all that the prosecutor has is evidence showing the probability of the indictee’s guilt?” 

In conclusion, Justice Aquino plainly concluded:

“To answer in the affirmative is, is to me, to tolerate an injustice, if not an oppression.” 

xxx

“Why indeed should a prosecutor be allowed to gamble with the honor, the liberty, the property, and the well being of a person in the crucible of a criminal proceedings on the basis of a mere expectancy: that his inadequate evidence might perchance be fortified or rehabilitated during trial?”

So even without the revision of the Rules on Criminal Procedure, there are some thoughtful prosecutors who are heading and practicing what former Chief Justice Panganiban wishes: the ending of the revolving door of “probable cause” and “proof beyond reasonable doubt” and the bridging of the huge chasm between “probable cause” and “proof beyond reasonable doubt” in effect helping the courts decongest their dockets and rendering justice more speedily.

A revision of the definition of probable cause will standardize the rulings of the prosecutors. But the suggestion of a reader in Panganiban’s October 4, 2020 column which states that the “guidelines should require prosecutors 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 trial,” will scare our prosecutors from filing cases and will have a negative effect. Less and less criminal cases will be filed in court even against those with proof beyond probable cause. Instead of justice, the prosecutors will be serving injustice to the victims in order to protect themselves from criminal prosecutions because of the oath they took when they file the case.