[OPINION] Injustice in the Court of Appeals: The Ortega case

There are two kinds of abuses of due process in a criminal suit – abuses which a professional prosecutorial service and judiciary are mandated to curb.

The first is when the process is used to harass a clearly innocent person, perhaps as a tool to extract compliance to impede him, or as vengeance. Many would characterize the Leila de Lima prosecution this way.

The other is when process is invoked to defeat the end of process, releasing those who clearly have to account for the charges against them. In our pevious article on Mary Jane Veloso, we stressed the truth-telling purpose of due process. In both these abuses, truth is clearly not served, when the proper voice is not being heard (either by implicating the wrong one or allowing the right one to disappear).

In Mario Joel T. Reyes v. Regional Trial Court of Puerto Princesa City and People of the Philippines, majority of the Court of Appeals (CA) former 11th Division's judges suddenly reversed the Regional Trial Court (RTC) Branch 52's probable cause finding against former Governor Joel Reyes in Dr Gerry Ortega's murder.

There is merit to the contention that it was a step back for justice: in a division of 5, 3 were for the majority, with the other two (Marie Christine Jacob and Filomena Singh) issuing strong dissents to the decision.

With such a close vote and with diametrically opposed opinions on the question of probable cause, a bump to the Supreme Court (SC) was expected. Given the stakes, however, it behooves the legal community to make clear what probable cause is, what it takes to bring a case to trial.

Again, a short recap: the captured triggerman Marlon Recamata confessed and implicated "Bumar" Edrad and two others. Edrad, in turn, claimed before the NBI that Reyes ordered the hit. Then Justice Secretary de Lima had to formulate two special investigative panels, the second of which issued the resolution charging him for the death of Ortega via conspiracy.

The first panel dismissed the complaint but De Lima overruled them and constituted the second panel.

That issue of the two panels was settled in another SC case (De Lima et al v. Reyes). In the meanwhile, Reyes filed a Rule 65 certiorari case for "grave abuse of discretion" against the named RTC for judicially finding probable cause against him in the second panel's information.

In layman's terms, that means that the judge assessed the second panel's report saying that (a) Ortega was murdered, and (b) based on the provided evidence, Reyes may have had a hand in it and that there was enough substance to have the case filed. As a result, the judge issued the warrant of arrest against Reyes.

The majority opinion and the dissents

That is what the CA overturned. The majority decision effectively said that the judge should not have done so, as the only evidence linking Reyes to the crime was Edrad's sworn statement implicating him (and nothing else, so the decision says).

The CA also said the witness' statements were inconsistent and contradictory, thus diminishing their credibility, and any other linkage raised elsewhere, such as Ortega's denunciation of corruption under Reyes' watch, were too circumstantial and equivocal to constitute a probable cause finding.

The two dissents emphasized that at this stage of a criminal proceeding, from the preliminary investigation conducted by a prosecutor (or panel as in Ortega's murder) to the judge's issuance of the arrest warrant, neither the investigating prosecutor nor the judge was called to weigh the accusations and the evidence before them as though he were deciding on the guilt of the accused party.

Azcarraga-Jacob cited Hao v. People, saying that "at this stage, the trial court judge is tasked to merely determine the probability, not the certainty, of guilt of the accused." Singh took the majority opinion to task, writing that "[t]he reasons cited…touched in plainly evidentiary matters which… are properly threshed out only during a trial and prematurely at this stage.” Both cited Santos-Dio v. Court of Appeals, in particular, defining the judge's duty at this stage of the proceedings:

… so as not to transgress the public prosecutor’s authority, it must be stressed that the judge’s dismissal of a case must be done only in clear-cut cases when the evidence on record plainly fails to establish probable cause – that is when the records readily show uncontroverted, and thus, established facts which unmistakably negate the existence of the elements of the crime charged. [But] if the evidence on record shows that, more likely than not, the crime charged has been committed and that respondent is probably guilty of the same, the judge should not dismiss the case...

On the question of probable cause

Probable cause establishes a good reason to bring an accused to trial, but not to reach at its result. As pointed out in Hao, this is not the determination of guilt. The judicial determination of probable cause (being attacked in Reyes v. RTC), on the other hand, determines "whether a warrant of arrest should be issued."

This differs from the beyond-reasonable-doubt standard of conviction in trial, precisely because of its preliminary nature. The only way to convict someone beyond reasonable doubt is to go through the process, but if that process can only push through with beyond-reasonable-doubt certainty even before filing the case, then the process may never even see the light of day.

It must be undeniable that either the respondent had not participated in the complained offenses, or had not acted in violation of law. Or even evidence that the charges were all cooked up. The magic words for these are "no evidence of probable cause," or more often "lack of probable cause." It has to be evidence clear as day, unrefuted by the complainant, unmistakably saying, "This man did nothing wrong."

Consider the implication thus offered by the majority decision: one was afforded an acquittal as though there were a full-blown trial, without a full-blown trial, and without conclusive findings. As in Veloso's case where the truth of the drugs in her bags is obscured by rules of procedure, here the truth of Ortega's death is obscured by misapprehensions of probable cause.

Repeatedly, the SC ruled that in the fires of trial the certainty of one's case is tested – the Court has said that only when the given evidence clearly shows no crime, or no commission by the accused, even without having to look deeply, that the trial becomes a futility.

When the evidence is controverted, when the respondent cannot irrefutably show he is not the one they seek, the bias is for process, truth-telling, and the fires of trial. – Rappler.com


Christian Laluna is a graduate of the Ateneo School of Law. He is awaiting the results of the bar examinations by collaborating with Professor La Viña in several projects.