13 October 2020 HON. ARTEMIO V. PANGANIBAN, JR. Philippine Daily Inquirer Makati City, Metro Manila Dear Chief Justice Panganiban: I read with keen interest your October 4 article “Probable Cause, De Lima, GMA, and Guevarra� in the Philippine Daily Inquirer. I generally agree with your thesis that the standard of probable cause in preliminary investigations of criminal informations is problematic in relation to the requirement of guilt beyond reasonable doubt when it comes to trial and conviction. This is why during my stint as DOJ Secretary, I initiated the close coordination between the National Prosecution Service (NPS) and the National Bureau of Investigation (NBI) in the case build-up of criminal complaints, starting at least with the high-profile cases. The intent was to institutionalize the mindset among investigators and prosecutors that while it is easy to file criminal cases, they should be prepared as early as the preliminary investigation stage to establish the evidence that will also meet the standards of guilt beyond reasonable doubt. This is also to avoid fishing expeditions, where the prosecution, due to lack of evidence acquired during the preliminary investigation stage that would meet the standard of guilt beyond reasonable doubt, is faced with two options during the trial stage, either let the case be dismissed or to be more enterprising and imaginative in the procurement of evidence, either legally or illegally. Unfortunately, the latter is what is happening now in my three illegal drug cases. Due to lack of evidence during the preliminary investigation even under standards of probable cause simply because the Bilibid witnesses were not personally examined and their credibility tested by the panel of DOJ prosecutors, the prosecution during the trial is now hard-pressed presenting testimonies of dead witnesses who can no longer be cross-examined (Jaybee Sebastian) and impeaching their own star witness who repeatedly testified that he is not a drug lord and did not engage in any drug trading (Peter Co).
However, I am also mindful of the fact that this problem cannot be merely attributed to probable cause as a standard of proof during preliminary investigation. The root of the problem in baseless accusations and record rate of dismissal of cases is myriad, and cannot solely be a function of the problematic probable cause. In my case, I honestly believe that regardless of the standard of proof required in preliminary investigations, a President dedicated to seeking revenge and using the strong arm of the state in his vindictiveness will always find a way to coerce the DOJ to file cases against me, to the point of then DOJ Secretary Vitaliano Aguirre II himself leading the charge in manufacturing and fabricating the testimonies of highly dubious witnesses, mostly Bilibid inmates, as duly assisted by the Solicitor General and the Public Attorney’s Office (PAO). No amount of rules on standards of proof can possibly prevent the President from using the entire machinery of government to send one person to jail due to a deep-seated personal and political vendetta. This is why I also believe that part of the solution lies in looking at the nature of political persecution cases and the power of the Executive Department vis-à-vis the other stakeholders in the justice system from the judicial and legislative branches of government. I therefore always return to what is behind the rationale in the creation of a three-judge system for the Sandiganbayan. For cases involving officials with Salary Grade 27 and above, which sometimes partake of highly political criminal cases that usually involve politicians, the law saw it fit that such cases be tried by three judges as a necessary means to avoid political pressure or corruption in their decision-making. Of course, this is not fool-proof, but it is certainly better than one judge deciding the fate of a politician who could merely have been the victim of a politicallymotivated set-up and trumped-up charges, like myself. As aptly discussed by then Chief Justice Maria Lourdes Sereno in her dissent in De Lima v. Guerrero (G.R. No. 229781; October 10, 2017), the Sandiganbayan three-judge system is best-equipped and precisely intended for these political cases, cases with “heightened public interest”, to wit: xxx Cases that involve high-ranking public officials, who are alleged to have abused their public office, and in such manner, have caused substantial pecuniary damage to the government,
may be considered as cases of greater public interest. Due to the heightened public interest attendant to these cases, it is therefore reasonable that the same be decided by a collegial body as compared to a singular judge of an RTC, which must not only function as a drugs court, but must also devote its attention to ordinary cases falling under its general jurisdiction. Jurisprudence exhibits that "[t]he Sandiganbayan, which functions in divisions of three Justices each, is a collegial body which arrives at its decisions only after deliberation, the exchange of view and ideas, and the concurrence of the required majority vote." The collegiality between justices (who - not to mention - hold the same rank as that of the justices of the Court of Appeals) is a key feature of adjudication in the Sandiganbayan that precisely meets the heightened public interest involved in cases cognizable by it. More significantly, as already intimated, the Sandiganbayan was created for one, sole objective: "to attain the highest norms of official conduct required of public officers and employees." As such, no other court has undivided and exclusive competence to handle cases related to public office. Despite statistics allegedly showing that no drug case has been yet filed before the Sandiganbayan, its exclusive competence to deal with these special cases involving high-ranking public officials must prevail. These statistics only reflect matters of practice which surely cannot supplant statutory conferment.
The answer to our problem probably lies between the two, i.e., resolving the problematic probable cause as a standard in preliminary investigations and ensuring the independence of our justice system and judges from political pressures coming from the executive branch, especially the kind that is brought to bear by strongmen and authoritarian Presidents. Generally, though, with regard to the problematic probable cause standard in non-political preliminary investigations, I already filed a bill restructuring the initial stages of our criminal justice system. This bill on restructuring of the justice system has two features. First, it makes the prosecution service an active part in the criminal investigation and case build-up stage. Second, the preliminary investigation stage is basically taken over by a trial judge whose court has jurisdiction to try the case, thereby roughly adopting the grand jury system in the United States, where a judge with the power to summon witnesses and require the production of evidence primarily decides on whether a criminal charge should be brought before the courts. Varying standards of proof
which are higher than the probable cause standard are proposed for these stages. This, in effect, will also dispense of the long-standing doctrine that testing and weighing the credibility of witnesses is not a function of a preliminary investigation, but is left to the judgment of the court in a full-blown trial. In the proposed bill, the grand jury-type of preliminary investigation before a trial judge now gives him the discretion to already make a finding on whether or not the testimonies of the prosecution witnesses and their credibility will stand the test of a trial proper. This is envisioned to be in stark contrast to the present system where I also found myself the victim, when the DOJ Panel of Prosecutors swallowed the fabricated affidavits of the Bilibid witnesses hook, line, and sinker, harping on the excuse that, regardless of the fact that most of the witnesses were convicted of multiple crimes involving moral turpitude, the test of their credibility is still the function of a full-blown trial. I am attaching a copy of this proposed bill, S.B. No. 182, or the Criminal Investigation Bill, for your perusal. I hope I have contributed in a humble way to your unceasing and laudable re-imagination of the justice system to better serve our people and legal practitioners, especially those in the criminal law field of our profession. Very truly yours, LEILA M. DE LIMA