Probable cost

Amidst the ongoing PDAF saga, the term “probable cause” has attracted a fair share of attention (and confusion). Just like due process, it is an amorphous concept. Found in Article III, Section 2 of the 1987 Constitution (but originally taken from the 18th century Fourth Amendment to the US Constitution), this standard is also used in several provisions of our Rules of Court. In general, probable cause means such facts and circumstances that are in themselves sufficient to induce a cautious person to rely upon them. It posits reasonable probability based on everyday experience that certain facts are true. In the PDAF cases, the probable cause standard is used in two instances – the filing of an information and the issuance of a warrant.

The filing of a criminal information by the prosecutor (used to be called the fiscal) in court is an executive function. This occurs after the prosecutor conducts a preliminary investigation and has determined that there are facts and circumstances that would lead a reasonably prudent person to charge a person and bring him to trial.  

On the other hand, the issuance of a warrant (arrest or search) has been declared by the Constitution to be solely a judicial function (note that in the 1973 Constitution and in other jurisdictions, other government officials are authorized to issue warrants). After conducting a preliminary examination, the judge determines if there are facts and circumstances which would lead a reasonably prudent person to believe that an offense has been committed by the person sought to be arrested. This is also termed as the judicial determination of probable cause.

So if the prosecutor has already determined the existence of probable cause (in corruption cases, the Ombudsman is the prosecutor), does the judge (in whose sala the case is raffled) need to validate such finding (the Sandiganbayan with a division composed of three justices acts as the collective judge)?

Technically, the answer is yes as the “probable cause” determined by the prosecutor is different from the “probable cause” that is determined by the judge.  

The distinction between the two is academically fine and dandy.  But does this work in the real world?  If the prosecutor finds probable cause to file an information but the judge rules otherwise in respect of issuing the warrant of arrest, does this not mean that the judge believes that the information is insufficient and therefore should be dismissed?  If that is the case, the judge is essentially overruling the prosecutor’s determination of probable cause by simply refusing to issue the warrant?  Perhaps this is a good question that can be asked in the Political Law bar exam. 

The other issue deals with quantum of evidence.  To be convicted in a criminal proceeding, the prosecution must prove the accused’s guilt beyond a reasonable doubt (the Tagalog translation is more onomatopaeic—ebidensiyang walang kaduda-duda). However, for purposes of issuing warrants, the evidence required is mere probable cause which connotes possibility or probability, not absolute certainty. Given the foregoing, as a rule, a judge’s regular action would be to issue a warrant upon the filing of an information. Unless of course probable costs come into play.

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Non-bailable?: I am beginning to sound like a broken record, but friends in the media continue to use a legally incorrect term — “non-bailable” offense.  And since the media plays a pervasive role in educating the public, it has become our four centavo crusade to try and correct this mistake.  Just like the Loch Ness monster or the Himalayan yeti, there is currently no such animal in our statute books.  

Article III, section 13 of the 1987 Constitution provides:

“All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law.”

This means that in most instances, persons accused of any crime are entitled to bail as a matter of right. This principle not only honors an individual’s Constitutional presumption of innocence but recognizes that any imprisonment is a form of punishment. Thus, for a person to be denied bail, two requisites must concur: a) that a person is being charged with a crime being punishable by reclusion perpetua or life imprisonment; AND b) the evidence of guilt is strong.

Hence, just because an accused is charged with a heinous crime such as plunder does not automatically mean that such person cannot be admitted to bail. However, the judge hearing the case needs to be convinced that the evidence of guilt is not strong so as to allow the accused to post bail. And since the bail hearing will occur after the warrant of arrest is issued, regardless of how the judge eventually rules, chances are the accused will spend time in jail. In summary, “non-bailable” crimes do not exist, only offences where bail is not a matter of right.

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Legal exports:  The number of emails that I received on the topic pleasantly astounds me.  And it is truly heartening to know that many Filipino lawyers are practicing their profession outside of the country. It really goes to show we can compete with the best and the brightest around the world.  They do their country proud (and hopefully help the economy by remitting some their hard-earned foreign currency back to their families here or used to invest in Philippine real estate).

Last week, I received thoughtful emails from another two of our outstanding legal exports:  Earl Joyce Rivera-Dolera who has been appointed as the Tribunal Secretary on several disputes handled by the Singapore International Arbitration Centre and Gmeleen Tomboc who works with Sidley in Singapore. Together they identified another 20+ of our legal eagles working with corporations and international law firms in Singapore, Hong Kong, Tokyo and Jakarta. I do not have the space this week to list their names but I will do so in a forthcoming column.   

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“If people aren’t laughing at your dreams,

your dreams aren’t big enough” – Robin Sharma

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Email: [email protected]