Probable cause

In at least two cases this past week, the concept of "probable cause" has been in the headlines, in the context of a court refusing to dismiss a case and resolving to proceed with it and move to arraignment, where an accused can plead his innocence and guilt, and then to trial.

But because both were high-profile cases, and the rulings were attended by somewhat noisy protests by the accused and their supporters, the notion of probable cause needs to be revisited. One case was, of course, that of Anakpawis Representative Crispin Beltran and his co-accused Magdalo leader First Lieutenant Lawrence San Juan.

The other was one among several libel cases filed against leaders of the Parents Enabling Parents (PEP) Coalition, a group of plan holders whose children allegedly lost educational benefits purchased from the financially-strapped Pacific Plans Inc. (PPI).

The Makati Regional Trial Court Branch 145, with Judge Encarnacion Moya presiding, upheld the warrantless arrests of Beltran and San Juan by finding probable cause that they had committed the crime of rebellion which, incidentally, is non-bailable. Several courts in Makati, including Judge Moya’s branch, found probable cause that the PEP leaders had committed the crime of libel, and set bail at P10,000 per accused.

But since the complainants, members of the Yuchengco family, had filed something like 13 libel cases sprinkled throughout the Makati courts, each PEP accused has to be ready to cough up P130,000 each to avoid arrest and confinement at the Makati city jail. Newly-minted philanthropist Mark Jimenez, who hates politics and is not running for any public office, then came to the rescue with pledges of P50 million. Thus, the PEP officers will be able to post bail and, more importantly, provide tuition funds for several PPI plan holders left holding the bag.

The irony of the fate of the PEP leaders is, of course, unmistakable. Their own case for "syndicated plunder" against PPI, its affiliated companies and owners (the Yuchengco family), has not progressed at the same breathless pace as the libel cases. But that’s a matter for another column. Also, since the Beltran/San Juan and PEP Coalition cases are sub judice, we won’t discuss the legal issues in both.

Still, we can discuss the notion of "probable cause," especially in light of the reactions of the disadvantaged parties. Beltran’s lawyers, for instance, rue the absence of any meaningful discussion in Judge Moya’s "judicial determination" of probable cause.

The PEP leaders interpret the "one-sided" findings of "probable cause" as judicial blessing of the alleged fraud perpetrated by a giant business enterprise which took their money but reneged on contractual obligations.

The problem, which is obviously difficult to see if one is under detention or is the subject of a warrant of arrest, is that "probable cause" does not finally resolve any of the issues in a case. Much less is it a judgment finding an accused guilty of a crime.

What then is "probable cause"? A failure to grasp the concept has admittedly led to considerable grief and anger on the part of an accused who staunchly maintains his innocence and is eager to put an end to an undeserved ordeal he is convinced either a vicious government or a callous business giant is inflicting on him.

In the sense in which we are considering it (as distinguished, say, from probable cause for a search warrant), Black’s Law Dictionary simply defines it as "a reasonable ground to suspect that a person has committed or is committing a crime." Further, probable cause amounts to more than a bare suspicion but less than evidence that would justify a conviction and must be shown before an arrest warrant may be issued.

Joaquin Bernas, S.J., in his book on the 1987 Philippine Constitution, quotes a United States Supreme Court case which teaches that "(i)n dealing with probable cause, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act."

Fr. Bernas, citing several Philippine cases, distills the rule, as follows: Probable cause for an arrest or the issuance of a warrant of arrest would mean such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested."

Who makes the determination of "probable cause"? Well, under our 1987 Constitution, "no ‘warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce’" (Article III. Section 2).

You get the idea. The issuance of a warrant of arrest, as in the Beltran/San Juan case or the PEP cases, does not require that sufficient evidence be on the record to support a conviction. In fact, in both cases, trial has not even begun. At the trial, all the accused could be acquitted. This does not mean that their arrest was illegal or improper.

On the other hand, the Constitution also guarantees a right to bail to all accused before conviction except those charged with a capital offense when the evidence of guilt is strong (Article III, Section 13). Similarly, under the Rules of Court, bail is a matter of right before or after conviction by a metropolitan or municipal trial court, and before conviction by a regional trial court of an offense not punishable by death or life imprisonment.

This is the way the system works. Although the law also allows for appeals of judgments and final orders of courts, there is no question that findings of probable cause, which justify arrests with and without warrants, can make the lives of innocent persons miserable and aggravate injustices which have already been perpetrated.

Rationalizing mistakes or injustices on the ground that a judge, who personally determines probable cause, is "only human" and can be dead wrong in appreciating the evidence and witnesses before him does little to assuage the hurt and damage caused.

Nor does it help matters much to intone that "dura lex, sed lex," or the law may be harsh but that is the law. The argument against that legal truism is often that the law has become so harsh, and is already so heavily tilted in favor of established authority, that the possibility of abuse has increased substantially. But that argument presupposes that law enforcers and judges are engaged in a conspiracy to violate human rights, and even that the state uses the justice system to rationalize blatant violations of liberties.

Although it won’t be the first time that argument, with the necessary supposition is made, it would be, so far anyway, a huge stretch. But what it does affirm is that the people’s defense of their basic rights is a never-ending struggle.