Probable curse, not probable cause

Column title for Metro Flash:

Privilege spits

Probable curse, not probable cause

By BERTENI CATALUÑA CAUSING

In the Philippines, even if it is clear that the prosecution only has some probability that one person may have committed a crime and the prosecution has obviously nothing in its hands that can give a big chance it can prove its case beyond reasonable doubt, even if the prosecution has no evidence that can be classified as sufficient to give it a solid or good chance to win a conviction of the person being charged, the person being charged is for sure trapped to stay in prison.

With this, perhaps one would understand why many people would rather choose to go hiding than surrender even if they believe they are innocent. 

These persons who have gone in hiding cannot be blamed, like Senator Panfilo M. Lacson, who hid when a judge of the Manila Regional Trial Court issued a warrant for his arrest because the Department of Justice during the time of Gloria Macapagal-Arroyo.

At that time, the RTC issued the warrant for the charges of double murder of publicist Salvador “Bubby” Dacer and his driver Emmanuel Corbito because a witness in the person of then Superintendent Cesar Mancao (a classmate of now PNP Chief General Ronald “Bato” Dela Rosa) came out to testify that Lacson ordered the kidnapping of Dacer and Corbito and subsequent murders.

If you would examine, the only substantive evidence presented to prove the claim that it was Lacson who ordered the kidnapping and murder of Dacer and Corbito was the testimony of Mancao, who was one of the police officers trusted by then PAOCTF head Chief Supt. Panfilo M. Lacson.

And yet, Mancao had that reputation that he was brought from the Philippines during the time that the national administration chief was Gloria Macapagal-Arroyo. At the same time, Arroyo was obviously harbouring ire against Lacson because the latter had exposed the Jose Pedal account and had cast dark shadows for the Arroyo clan.

One was clear. Lacson was a political opponent of the queen at that time.

So that another thing was clear, millions of persons from the public thought or tend to think that it was all because a political war.

Considering that before the alleged testimonies of Mancao that was used as the basis of the warrant of arrest Mancao had substantially opposite statements, how could the public now be convinced that indeed there was probable cause that Lacson may have issued the order to kidnap and kill Dacer and Corbito?

Earlier, the government of Gloria used Ador Mawanay and Mary Rose Bud as witnesses.

Precisely, whatever the distaff side insisted, many saw that as a political vendetta not a genuine concern for the murders of Dacer and Corbito.

And yet, it was a fact: Lacson had two choices, to surrender and stay in jail during the entire trial for bail or for the main case or to hide and wait for the result of the actions of his lawyer.

If you are situated like Lacson, you will really be in trouble.

In the end, the Supreme Court sided with Lacson and ordered the Dacer-Corbito murder case dismissed as against him.

It looks like our justice system is a curse when it applies “probable cause” as a standard to know whether the person being charged shall be tried in court or not.

And who says there is probable cause?

It is the Office of the City Prosecutor or the Provincial Prosecutor or the Department of Justice, the Office of the Ombudsman for corruption cases, and the Commission on Election on election offenses.

These persons use their opinions only. 

And if they sell their opinions, that will now become the end of the world for the persons tagged as having probable cause to have committed a crime that is non-bailable.

If a prosecutor was paid or accepted bribes, even without an iota of evidence many will decide there was probable cause so that the case must be filed in Court.

As a lawyer, the undersigned can cite numerous cases where there is actually no crime but that the prosecutor, particularly his own cases.

If this is a problem of the citizens, what should be done then to arrest the same?

The most controversial case of probable cause today, January of 2017, is the one involving Marine Colonel Ferdinand Marcelino and a Chinese companion named Randy.

The problem really here, based on the experience of the undersigned, the prosecutors are more often biased into deciding there was probable cause to charge a person.

But if their resolutions are read, with due respect, most of these are fraught with lack of logic statements.

Pardon to the prosecutors.

Like in the case of a broadcaster that the undersigned handles.  The prosecutor of Manila decided there was probable cause for libel despite the clarity of the facts that the complainant did not submit any evidence of actual malice.

Actual malice is one of the elements of the crime of libel.  In criminal law, if one of the elements is absent, then the case must be dismissed or the judge will be punished.

It was clear that the complainant in this libel complaint was a barangay chairwoman. 

The Supreme Court has already repeatedly ruled that if the alleged offended party is a public officer like a chairwoman, the element of malice that must be used to determine the presence of malice must be “actual malice.”

“Actual malice” is defined by the Supreme Court as that circumstance where the imputations were false and the offending party knew these to be false yet the offending party proceeded in publishing the same imputations, or that the offending party was prompted with circumstance that make the imputations doubtful yet the offending party did not conduct cross-checking if the facts he saw were true or not.

It is the postulate of the undersigned that if we talk of probable cause, we must be ensuring your fair minds with the well-entrenched belief that each element of the crime being considered had probable cause of existence.

In libel, its elements are existence of “malice”; publication of the imputations that are defamatory; existence of the defamatory imputations; and identification of the person to whom the imputations were directed.

If the barangay chairwoman did not submit evidence that the facts constituting or upon which the imputations were based are false, then it cannot be said that the facts used by the broadcaster had the probable cause that it was false.  If that is so, then it cannot be said in the entirety that there was probable cause the actual malice existed.

Assuming that the accuser submitted pieces of evidence that the facts used by the broadcaster as bases in churning out defamatory imputations were false, then it must be determined first whether the offending party or the broadcaster knew that the facts upon which the defamation was based were false at the time of the publication.   Because it is the duty of the accuser to prove, the accusing barangay chairwoman must submit evidence that the offending party or the broadcaster knew that the facts were false.

If the accuser submitted evidence that can now say there are probable cause that the facts were false and probable cause that the offending party or the broadcaster knew these were false, then there is still one more to know.

The last things to be known is whether there were evidence submitted to say that there was probable cause that the same defamatory statements were published and that there were also evidence to show that there was probable cause that the barangay chairwoman was identified.  If these are in the affirmative, then there is probable cause.

But if there were no evidence submitted to prove that the imputations were false and to prove that the offending party knew the falsities, then the Office of the City Prosecutor concerned must be cursed.

It is not like the Grand Jury System in the United States of America (USA), where a group of persons chosen randomly from the community to serve as jurors are the ones who decide by majority vote whether a person being charged by the police should be hailed to court.

If the jury votes that Lacson should be charged in court, hardly it can be said that a political hand dictated the decision to charge a person.  In this case, it is most likely that persons like Lacson will be the first to respect the process.