News analysis: Politicizing probable cause

Regardless of what the President might think, probable cause is the bedrock of due process and civil liberties in the Philippines. It says so right in the Constitution’s Bill of Rights.


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WHEN President Rodrigo Duterte made public last week the names of local officials he accused of involvement in illegal drugs, he cited “probable cause” as the “standard” that he needed to meet to support his move. “Our job,” he said in his speech, “is to reach that standard of probable cause. For the judges, it is proof beyond reasonable doubt. For the police and the armed forces, you only have to come up with probable cause,” he said. “Is he probably the criminal of this act? Then, if he is, I must arrest him.”

There are a few things to consider in Duterte’s statement. One is that he makes it sound as if people in these lists have been arrested or are going to be arrested anytime soon. None of those listed have been issued arrest warrants or are in jail.

Another is that, the government will have to satisfy the legal standard of probable cause before it can start arresting people. Regardless of what the President might think, probable cause is the bedrock of due process and civil liberties in the Philippines. It says so right in the Constitution’s Bill of Rights.

Due process dictates that for cases that are criminal in nature — like drug dealing — the accused need to be charged by law enforcers before the Department of Justice where prosecutors will determine probable cause after a preliminary investigation. Only after determining probable cause can a case be filed in court, where the judge can either issue an arrest or search warrant or dismiss the allegation. This is what the government did in the case of Senator Leila de Lima. Setting aside whether the charges against her are bogus or not, this process should have been applied as well in the case of those in the “narco list.”

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As a former prosecutor, Duterte should know this. But with the “narco list,” he made probable cause sound so simple. Worse, he seems to have twisted its meaning and application to suit an apparent political objective.

Under the law, probable cause is a complicated but, at the same time, clear legal standard. To be sure, it is more complex than whether a person is “probably” the perpetrator of an alleged crime but can be as simple as whether a case has merit or not in order to proceed.

“Probable cause under the Constitution is the legal standard for issuing a warrant, whether search or arrest, but it is the also the same legal standard for the Department of Justice and its prosecutors to determine if there is a criminal case to be filed after preliminary investigation,” said Theodore Te, former spokesman of the Supreme Court and now a law professor who does pro bono work with the Free Legal Assistance Group (FLAG).

While the executive department led by the president can determine probable cause, “it is really (meant) for the filing of cases and only after preliminary investigation, where the respondent is given an opportunity to be heard.”

Applied with the full spirit of the law and rules of criminal procedure, probable cause can only be determined by prosecutors and judges, said Antonio La Viña, former dean of the Ateneo Law School and currently a law professor.

Any use of probable cause by the executive department to justify actions that fail to satisfy due process can be viewed through a political lens.

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In the case of the “narco list,” the individuals have been charged by the Department of the Interior and Local Government before the Office of the Ombudsman. While probable cause can still be applied, the fact that the Department of Justice is not involved indicates the low “evidentiary threshold” used for the list, said lawyer Romel Bagares, executive director of the Center for International Law.

The DILG case is an “implicit” acknowledgment that the government can’t determine probable cause, Bagares pointed out. Even then, the Ombudsman, being quasi-judicial, determines probable cause, not the president.

What makes executive determination of probable cause prone to political misuse is the “lower evidentiary threshold” of cases such as those prepared by the DILG, Bagares said. In these cases, the government only needs to come up with “substantive evidence,” which can be anything that the government can produce — such as unverified “intelligence reports” — regardless of whether this will stand in a court of law.

Te likens the “narco list” to the military’s “order of battle,” a list of its enemy targets that it comes up on its own. “It’s the same thing with tokhang — executive determination of probable cause but not for filing of cases,” Te said, adding: “It’s Marcos all over again.”

Publicizing the names of those in the list without first filing criminal cases —  in which case the proper determination of probable cause would kick in — suggests that the motive behind the “narco list” is politics, not criminal prosecution. Te, La Viña, and Bagares agreed.

It remains to be seen whether the government will file criminal cases against those in the list. For now, the politicization of probable cause seems to serve Duterte’s purpose. (Laguna Now)