No prima facie case

The general policy of courts is not to interfere in the preliminary investigations conducted by the office of the prosecutor unless there is grave abuse of discretion. So, as a general rule, the Supreme Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. This is explained in this case of Romy.

Romy used to be under the care of a caring agency run by the Good Shepherd sisters and licensed by the Department of Social Welfare and Development. When Romy was then over a year old, the spouses Jorge and Luna and their four daughters Nina, Lina, Dona and Tina came to know Romy and have him spend a few days at their home and then return him to the orphanage. When Romy was two years and nine months old, he formally became the ward of the spouses Jorge and Luna by virtue of an “Affidavit of Consent To Legal Guardianship” executed in their favor by sister Cora, superior of the caring agency.

As Romy was growing up, the spouses and their children noticed that Romy’s physical and cognitive growth was remarkably delayed and did not appear normal. At the age of three to four years, he could only crawl on his tummy like a frog and did not say his first word until he turned five years old.

At age six, the spouses enrolled Romy but he experienced significant learning difficulties. So, at age 11 Romy was taken to specialists for neurological and psychological evaluation. The evaluation revealed that Romy was suffering from mild mental deficiency, so he was transferred to another school for special children.

When Romy was already 24 years old, the spouses approached a urologist/surgeon, Dr. Amado, to have him vasectomized. Dr. Amado asked that Romy be first evaluated by a psychiatrist to confirm and validate whether he could validly give his consent to the medical procedure on account of his mental deficiency.

The psychiatrist, Dr. Perez, recommended that the responsibility of decision making be given to the parent or guardian because of mild to moderate mental deficiency by reason of which he may never understand the nature, the foreseeable risk, benefits and consequences of vasectomy that his family wants for his protection. Hence Dr. Amado performed a bilateral vasectomy on Romy.

Five months thereafter, Nina, the eldest daughter of Jorge and Luna, instituted a criminal complaint for violation of Articles 172 and 262 of the Revised Penal in relation to Republic Act 7616 for falsification mutilation and child abuse.

The Assistant City Prosecutor, however, found that there was no sufficient evidence to establish a prima facie case for the crimes complained of, particularly mutilation because, though the vasectomy rendered Romy unable to procreate, it was not the permanent damage contemplated under the pertinent provisions of the Penal Code (Article 262) which defines the crime as “intentionally mutilating another by depriving him either totally or partially of some essential organs of reproduction.” This ruling was affirmed by the Department of Justice (DOJ) and by the Court of Appeals.

In resolving said appeal, the Chief State Prosecutor held that under Section 12, in relation to Section 7, of Department Circular No. 70 dated July 3, 2000, the Secretary of Justice may, motu proprio, dismiss outright the petition if there is no showing of any reversible error in the questioned resolution or finds the same to be patently without merit. A careful examination of the petition and its attachments shows no error that would justify a reversal of the assailed resolution which is in accord with the law and evidence on the matter. Petitioner’s Motion for Reconsideration was likewise denied with finality by the DOJ in another Resolution dated Nov. 12, 2004. Resolute in her belief, petitioner went to the Court of Appeals by means of a Petition for Certiorari, Prohibition and Mandamus under Rule 65 of the Rules of Court, as amended.

On July 21, 2005, the Court of Appeals promulgated its decision dismissing petitioner’s appeal for lack of merit. Consequently, the assailed resolutions dated Feb. 11, 2004 and Nov. 12, 2004 of the Secretary of Justice in I.S. No. 02-12466 were affirmed.

Is the CA correct in affirming the DOJ and the assistant city prosecutor?

Yes, said the Supreme Court (SC). According to the SC, vasectomy does not deprive a man totally or partially of some essential organ of reproduction. In vasectomy, the tubular passage called the vas deferens, through which the sperm cells are transported from the testicle to the urethra where they combine with the semenal fluid to form the ejaculant, is divided, and the cut ends merely tied. Even assuming that the tubular passage can be considered an organ, its cutting does not divest or deny a man of any essential organ of reproduction for the simple reason that it does not entail the taking away of a part or portion of the male reproductive system. Thus, it does not constitute the crime of mutilation or the deprivation of a limb or essential part of the body. The SC said that courts try and absolve or convict the accused but, as a rule, they have no part in the initial decision to prosecute him. The exception to this rule is where there is an unmistakable showing of grave abuse of discretion amounting to lack or excess of jurisdiction that will justify judicial intrusion into the precincts of the executive department. That is not the case herein (Aguirre vs. Secretary, Department of Justice, et. al. G.R No. 170723, March 3, 2008).

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