Discretionary

This case finds relevance in the current controversy surrounding the State Prosecutors. It tells us of the extent of their power in determining whether or not to dismiss a criminal complaint filed against a person. It may explain why there are suspicions of rampant “fixing” in the Department of Justice (DOJ). And it all boils down to the word, “discretion”. Based on human experience, suspicions of fixing, founded or unfounded, will always arise in any government transaction where the decision makers are given discretion.

The case is about the complaint of unfair competition filed against Louie doing business under the name of VT Clothing Company (VTC) by a multinational garment corporation (LS & Co.). The latter claimed that Louie was engaged in the manufacture, sale and distribution of jeans and pants under the brand name of LIVE’S which are confusingly similar to its product bearing the LEVI’S trademark registered in its name.

In his counter-affidavit, Louie alleged among others that his products bearing the LIVE’S brand name are not fake LEVI’S garments; and that LIVE’S is a registered trademark that has an entirely different spelling and meaning from LS & Co’s LEVI’S trademark which when read and pronounced would resonate different sounds.  

The investigating prosecutor agreed with Louie and dismissed the complaint. On appeal, the DOJ affirmed the prosecutor’s dismissal. The Secretary discounted the element of actual intent to deceive by taking into consideration the differences in spelling, meaning and phonetics between LIVE’S and LEVI’S as well as the fact that Louie had registered his own mark which is a prima facie sign of good faith.

But when a new DOJ Secretary assumed office, he granted the motion for reconsideration filed by LS & Co., reversed and set aside the ruling of his predecessor and directed the filing of the information against Louie. He said that, exact similarity of the competing products is not required to be liable for unfair competition under Art. 189 of the Revised Penal Code..

When Louie in turn filed his Motion for Reconsideration of the order of the new DOJ, another DOJ Secretary has been appointed and granted his motion. Thus the third DOJ Secretary ordered the dismissal of the charges against him reasoning out that there is no possibility of confusion and of intent to deceive the public since jeans are not inexpensive so the casual buyer is more cautious and discerning and would prefer to mull over his purchase, making confusion and deception less likely.

Hence LS & Co. asked the Court to determine that probable cause exist to charge Louie with the crime of unfair competition and to direct the DOJ Secretary to cause the filing of the appropriate information for unfair competition. Will its petition prosper?

No. While the resolution of the Justice Secretary may be reviewed by the Court, it is not empowered to substitute his judgment for that of its own when there is no grave abuse of discretion. Courts are without power to directly decide matters over which full discretionary authority has been delegated to the legislative or executive branch of the government. The determination of probable cause is one such matter because that authority has been given to the executive branch through the DOJ.

A government prosecutor’s main function is to determine the existence of probable cause and to file the corresponding information if warranted. Thus the decision whether or not to dismiss a criminal complaint is necessarily dependent on his sound discretion and ultimately on that of the DOJ Secretary. While this power and prerogative is not absolute and subject to judicial review, the court’s duty is confined to a determination of whether the prosecutor committed grave abuse in the exercise of his discretion as to amount to excess or lack of jurisdiction. Grave abuse exist when discretion is exercised in an arbitrary and despotic manner, by reason of passion or personal hostility, and it must be patent and gross as would amount to an evasion, or to a unilateral refusal to perform the duty enjoined by law.

In this case the prosecutor and the two DOJ secretaries may have erroneously exercised their discretion but there is no showing of grave abuse as the records show that their finding of no probable cause is supported by the evidence, law and jurisprudence (Levi Strauss (Phils.) Inc. vs. Tony Lim, G.R. 162311, December 4, 2008).

When the Supreme Court however determines whether there is grave abuse of discretion, it also exercises discretion. So, we just have to accept and presume that it has exercised that discretion fairly and reasonably since it is already the Court of last resort. 

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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