Danilo Reyes, Programme Assistant, Asian Human Rights Commission, Hong Kong
The public prosecutor in the Philippines is actively involved in the investigation of crimes and can commence an investigation upon receiving a report from a law-enforcement agency or a private party.
Coordination between the prosecutors and the police in principle ensures that the evidence collected stands up to judicial scrutiny even at the early stages of a case. Courts rely heavily on the evidence submitted by the prosecution panel, which comprises the work of both the police and prosecutor. The panel is also obliged to ensure that witnesses appear in court as required, evidence is stored correctly, and that there are no undue delays from the side of the prosecution that may upset the hearing schedule.
Although the prosecutor has direct control in prosecuting all criminal actions, private prosecutors are also allowed once they get approval from the Chief State Prosecutor (CSP) or a Regional State Prosecutor (RSP) (Revised Rules of Criminal Procedure, rule 110, section 5). Once given permission, a private law practitioner can act either as lead prosecutor or assistant prosecutor. This authority will last until the trial is completed, unless it is revoked.
Paramount to the prosecutor’s role is to establish at the initial stages that a “probable cause” exists that a crime has been committed. This requires close coordination with investigating agencies—the Philippine National Police (PNP), the National Bureau of Investigation, and quasi-judicial bodies empowered to conduct investigation.
Where a prosecutor finds probable cause, the respondent must be informed of the case. This is done by way of a subpoena or formal notice giving the respondent an opportunity to reply to the allegation within ten working days from the time of receipt of the notice, unless an extension is sought. In practice, respondents often are not notified that a case is pending against them. They may not receive the notice or subpoena, particularly if living in a remote area.
Failure to submit a reply means that the respondent has waived his right and the prosecutor may resolve the complaint based on the documents and evidence they have on hand. The prosecutor resolves the complaint by writing a resolution which contains findings on whether or not a criminal offense has been committed and on which, if any, charges should be filed in court.
The prosecutor may decide whether or not to call both parties to appear for preliminary investigation, or summary hearing. The purpose of a summary hearing is to stipulate the facts and confirm the accuracy of the information before going to trial: for instance, the name and identity of the accused, in order to prevent wrongful prosecution. It does not consider the merit of the complaint or the substance of the allegations.
In writing the resolution, the prosecutor decides either to dismiss or endorse the filing of formal charges for trial. If dismissing the complaint, the resolution should contain an argument finding “no probable cause”. If the filing of formal charges is recommended, the resolution must convince a supervising prosecutor that there is a “probable cause” and that there are grounds for a well-founded belief that the crime has been committed. Only then are charges filed in court.
Appeal against prosecutor’s findings
Even though the prosecutor has filed charges in court, a petition for review of the prosecutor’s findings can still be made. All petitions for review of resolutions must be filed with the RSP concerned, who shall resolve them with finality in certain cases (Department of Justice [DoJ] Circulars 70 & 70-A, 2000). The appeals should be made within 15 days from receipt of the resolution. Only one motion for reconsideration is allowed. Once the resolution is deemed final, charges are then filed in court. As there are no policies or guidelines to limit the period within which a review of a resolution on appeal should be completed, this inevitably leads to delays in the filing of charges in court.
In cases involving public officers, police and the military, prosecutors are required to forward the resolution to the Office of the Ombudsman for Military and Other Law Enforcement Offices. The ombudsman has the power to either endorse or to reverse the prosecutor’s resolution (Joint Circular with DoJ Circular 1, 1995). If the ombudsman decides to endorse the filing of charges, the ombudsman also has responsibility to appoint or deputise a prosecutor to take charge of the case; however, in practice public prosecutors are automatically treated as deputised.
There are no specialised prosecutors working for the ombudsman on cases involving officials. This creates problems, because sometimes a prosecutor who has resolved that a complaint against the military be dismissed is later deputised to prosecute the case. That the same prosecutor is called to resolve a case and then prosecute it contrary to the resolution is a consequence of the shortage of prosecutors.
Prosecutors have a heavy burden to oversee police investigations in cases involving inquest proceedings (DoJ Circular 16 on New Rules on Inquest). Each police station or headquarters should in principle also have designated inquest prosecutors to process inquest procedures with a schedule of assignments for their regular inquest duties.
Inquests proceedings follow in cases where persons are arrested without the benefit of an arrest order or warrant, or are caught in the act of committing a criminal offence. The purpose of the inquest proceedings in these cases is that while the state acknowledges the law enforcers’ authority to arrest and detain persons without a warrant, the state must also ensure that these persons are not unlawfully detained, and that they are not denied due process. The inquest establishes whether the evidence is sufficient enough to seek court approval to keep the person in detention.
The inquest requires the prosecutors to resolve the complaint the police filed in a prescribed period, which varies depending on the gravity of the offense. Cases punishable with light penalties must be resolved in 12 hours; those punishable with correctional penalties within 18 hours; and those punishable by afflictive or capital penalties, within 36 hours. If the inquest prosecutor fails to complete the proceedings in the prescribed period then the person must be released.
However, inquest prosecutors and police routinely fail to comply with these time requirements and unlawful detention beyond the periods stipulated is common, particularly in cases attracting lesser penalties. The misunderstanding that has grown among the police is that they can detain anyone without a warrant for 36 hours, regardless of the nature of offence. Some police ignore the time periods altogether, arguing that once a person is subjected to inquest they should not be allowed to leave custody until it is completed, no matter how long it takes.
National Prosecution Service
Presidential Decree (PD) 1275 of 1978 established the National Prosecution Service under direct supervision of the secretary of the DoJ. It is empowered to investigate and prosecute all crimes described by the Revised Penal Code (RPC), investigate administrative cases against its own officers, prepare legal opinions or queries about violations of the RPC and other laws, and to review appeals to resolutions of cases by prosecutors.
The CSP is the head of the NPS. Five Assistant Chief State Prosecutors (ACSPs) have oversight over divisions of the NPS, namely: Inquest and Special Concerns; Preliminary Investigation and Prosecution; Review and Appeals; Administrative, Personnel Development, and Support Services; and Disciplinary, Field Operations, and Special Concerns.
The Inquest and Special Concerns Division conduct inquests and examine criminal complaints filed directly with the prosecutor’s office. As mentioned earlier, inquest proceedings are carried out by inquest prosecutors on cases involving persons arrested without the benefit of an arrest order (as prescribed by the DoJ Circular 16). This division too is responsible for appearing in meetings called by the law enforcement agencies, and related activities.
The Preliminary Investigation and Prosecution Division is responsible for the conduct of investigation and prosecution of cases once they are filed with the Office of the Chief State Prosecutor (OCSP), or those cases filed under inquest proceedings. It has oversight over the proper conduct of preliminary investigation and the prosecution of cases in courts.
The Review and Appeals Division evaluates and reviews appeals made or petitions filed for review on final resolutions of prosecutors, as described above.
The Administrative, Personnel Development and Support Services Division handles career improvement and continuing legal education for the NPS. However, the prosecutors’ development training is for the time being integrated into other private entities or training programmes offered by the judiciary. The NPS does not have its own development program for prosecutors. For the most part, continuing legal education is lumped together with the Mandatory Continuing Legal Education programme of the Integrated Bar of the Philippines and the University of the Philippines Law Center. This programme requires all lawyers, not only prosecutors, to undergo continuing legal education to enable them to keep abreast of recent law and practice. Other programmes include those of the National Prosecutor’s League of the Philippines, but are privately organized and funded, and voluntary.
The Disciplinary, Field Operations and Special Concerns Division has as its mandate the conducting of investigations and preparing of resolutions on administrative charges against prosecution and support staff. It coordinates and monitors the activities of the prosecution staff in different levels all over the country and is also involved in legal research and providing opinions on proposed legislation by the DoJ.
The OCSP has a total of 119 State Prosecutors, while 14 Regional State Prosecutors, 96 City Prosecutors, 79 Provincial Prosecutors and 1,801 Assistant Provincial Prosecutors all over the country are also under its supervision. The number of prosecutors though varies in each province or city depending on its size. Previously, PD 1275 allowed for the regionalising of prosecution functions. The RSP once exercised direct supervision and control over prosecution staff within the same region—for instance, transfer of assignment and dismissal—but later these responsibilities were recalled. The operation and functioning of the NSP is now mostly centralised.
Salary and budget problems
The national government pays the prosecution and support staff from the DoJ’s annual appropriation. Only clerks, stenographers and other subordinate employees in the offices of provincial and city prosecutor’s offices are paid from the budget of the province or city where they are assigned. The salary scale is governed by the Salary Standardization Law (Republic Act [RA] 6758), which is the law determining the salary of every government employee and public official. Currently, the lowest-ranked prosecutor (Prosecutor I) receives 22,521 Pesos (USD 550) monthly; middle-ranks, (Prosecutor II & II), 23,422 and 24,359 Pesos, and for top ranks (Prosecutor IV), from 25,333 to 28,875 Pesos.
These salaries are low compared to lawyers working in private practice and in firms. However, proposals to increase salaries to encourage more applicants and to dissuade prosecutors from going into private practice have met with obstacles because of the Salary Standardization Law, under which it is necessary to increase the salaries of government employees across the board or be subjected to complaints of discrimination in favour of one category of public servants as against the others.
To address this problem some Local Government Units are allocating funds to give additional allowances for prosecutors assigned in their localities. For instance, the city of Mandaluyong in Metro Manila gives 10,000 Pesos more to prosecutors regardless of rank. The city of Manila allocates an additional 25 per cent of the basic salary for all prosecutors regardless of rank. Others allocate lesser amounts while in some places prosecutors are not receiving anything extra at all.
There are concerns that the additional payments offered in certain localities undermine the credibility and independence of prosecutors, particularly in cases where local executives have personal or political interests and treat prosecutors as their legal consultants rather than independent state officers. Also, the payments create inequality among prosecution staff of the sort that the Salary Standardization Law was aimed at preventing.
Low wages and a heavy workload mean that there are always vacant positions for prosecutors. Many apply to become judges—who have higher salaries and benefits—and some go into private practice.
In 2002, the average caseload of each of the 1,769 prosecutors was 851.86 cases. This figure includes preliminary investigations, cases for trial, and those for legal opinion and other assistance to be rendered. According to the United Nations Development Programme, the NPS at that time processed an average of 450,000 preliminary complaints a year and has about 850,000 criminal cases in various courts (Strengthening the other Pillars of Justice through reforms in the Department of Justice, Diagnostic Report June 2003).
The overloading of cases is aggravated by the lack of sufficient resources for prosecutors to perform their duties effectively. Because the budget is under the direct supervision of the DoJ, to request increases is difficult. Also, the prosecutor’s office is usually in the local Hall of Justice, where courts are also located. The office and its equipment has since 2000 been the property of the Supreme Court, which since then has administered court buildings. This may explain why from 1999 and 2001 there were no budget appropriations for capital outlay, including for the maintaining of information technology and office equipment like fax machines and photocopiers. Some prosecutors use their own personal computers or other equipment for their work.
At least 90 per cent of the budget allocated for the NPS is intended for personnel. Even though the DoJ appropriates additional funding for the functioning of the NPS, still the budget available with which to carry its duties is extremely low. In 2001, each prosecutor obtained an average budget for maintenance, operating, and other expenses of only 14,641 Pesos, or 1,220 Pesos per month.
Although filing a complaint with the prosecutors’ office is not very difficult, the chances that it will be dealt with promptly and lead to a conviction are low; thus, most victims of human rights abuses in the Philippines do not bother to file complaints at all. Delays in prosecution discourage victims from filing complaints but are not widely discussed. Lack of effective independence, heavy reliance on the police, insufficient resources, acts of omission by personnel and a general lack of accountability all undermine confidence in the work of prosecutors.
Lack of effective independence
As the NPS is directly under the secretary of the DoJ, who is a presidential appointee, there are concerns that prosecutors could be used to target government critics. The power of the secretary extends to each single criminal case being handled. The secretary may decide whether a case is filed in court or not or to reject appeals on the case in question. The secretary can remove prosecutors from individual cases and order them not to appear at a trial.
The DoJ also issues rules and memorandums on how cases are to be prosecuted. For instance, on 20 August 2002 it issued a memorandum to hasten the prosecuting of cases by authorising “PNP station commanders or their representatives, especially those assigned in far-flung provinces, to prosecute criminal cases” themselves with authorisation from the prosecutor’s office (Circular 40, 2002). At time of writing there are no known cases of police directly prosecuting cases in the courts, but in a press release the National Police Commission announced that it is completing a handbook with guidelines on this.
The police record of filing fabricated charges based on false evidence or forced testimonies should have caused alarm in the justice department, prosecution service and government. Yet the DoJ is moving in the direction of granting police even more leeway for such abuses by giving them the legal authority to prosecute in lieu of the NPS.
One reason that the memorandum may have been circulated is that police officers have in practice long appeared in court on behalf of the prosecution. Legal professionals reveal that as far back as the 1970s and 80s police were appearing for the prosecution in criminal cases in remote provinces and municipalities where prosecutors were unavailable, which is allowed under the Rules of Criminal Procedure. The mentality that police can serve as prosecutors is widespread among the legal community, which explains not only why the practice has gone on but also why the memorandum was brought into effect.
Addressing the shortage of prosecutors brought on by the heavy workload and low salaries by giving the police authority to prosecute cases is bound to create more serious consequences than the lack of resources itself.
Department of Justice, Manila
20 August 2002
MEMORANDUM CIRCULAR NO. 40
TO: ALL REGIONAL STATE PROSECUTORS, PROVINCIAL AND CITY PROSECUTORS AND THEIR ASSISTANTS.
SUBJECT: AUTHORITY OF PNP STATION COMMANDERS TO PROSECUTE CRIMINAL CASES.
In the interest of the service and in line with the government's commitment to further speed up the administration of justice, you are hereby directed to authorize PNP Station Commanders or their representatives, especially those assigned in far-flung provinces, to prosecute criminal cases, pursuant to the Revised Rules of Criminal Procedure, as amended, December 1, 2000, which reads:
“Sec. 5 Who must prosecute criminal actions.- All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority shall cease upon elevation of the case. This authority shall cease upon actual intervention of the case to the Regional Trial Court. xx (Rule 110).”
In connection therewith, the authority of a PNP Station Commander to prosecute a criminal action is subject to the following conditions, viz:
1. The public prosecutor has a heavy work schedule, or there is no public prosecutor assigned in the province or city;
2. The PNP Station Commander is authorized by the Regional State Prosecutor (RSP), Provincial or City Prosecutor;
3. The authority must be in writing;
4. The authority of the PNP Station Commander must be approved by the court;
5. The PNP Station Commander shall continue to prosecute the case until the end of the trial unless the authority is withdrawn or otherwise revoked by the RSP, Provincial or City Prosecutor; and
6. In case of the withdrawn or revocation of the authority of the PNP Station Commander, the same must be approved by the court.
Strict compliance is hereby enjoined.
HERNANDO B. PEREZ
Failure to do onsite investigations and perform other basic functions
Prosecutors are supposed to supervise onsite police investigations into suspicious deaths (DoJ Circular 16, section 16); ensure that postmortem examinations are performed, and that the chain of custody of material evidence is properly documented. But in reality inquest prosecutors do not usually take part in onsite investigations, except in high-profile cases. Instead they depend on the results of police investigations, particularly those of the Scene of the Crime Operatives, the police unit charged with forensic investigation and gathering of evidence. They also do not usually try to verify whether or not the information and evidence of police investigators is accurate or obtained lawfully, and even if they require the police to produce further evidence, it is still the same police unit who filed the original report that will investigate further.
The case of land reform activist Enrico Cabanit is illustrative. Cabanit was shot dead in April 2004 in Panabo City, Mindanao. No prosecutor came to supervise the police investigation or take charge of the evidence. It was later learned that the camera used by the police to take photographs of the crime scene was not functioning. The lethal bullet produced by the police investigator also did not match the findings of the forensic experts who conducted a follow-up investigation. The police proceeded to close the investigation by maintaining that one of the suspected murderers was thereafter also killed in a separate incident.
The prosecutor’s failure to document the chain of custody over evidence means that nobody is held to account when items are destroyed or stolen. Break-ins at police stations and thefts of evidence are commonplace yet officers are not held accountable because the responsible persons are not identified for want of proper records.
No further inquiries
Prosecutors do not typically investigate further when there are challenges to a resolution of “probable cause”, largely because they depend heavily on the information provided by police investigators, particularly in cases not falling under the inquest procedure. So if there are questions of credibility and accuracy of the information and evidence submitted, they are not in a position to undertake further investigations and make strong assertions about the reliability of evidence. Some prosecutors then merely resolve to recommend the case for filing and let the judge decide.
Although the Rules on Criminal Procedure require that prosecutors oblige police investigators to submit further evidence or information where necessary, in practice they do not usually do so. They either accept or reject the report, regardless of the fact that they have the authority to demand additional material. Thereafter, cases get stuck in court because police are unable to produce documents needed for the case and are finally dismissed for lack of sufficient evidence.
For instance, Haron Buisan was arrested due to mistaken identity in December 2005 in General Santos City, Mindanao. His family and fellow villagers provided documentary evidence to show that he was not the man wanted for a robbery as his name and identity differed from the person the police were seeking. Nevertheless, the prosecutor held him for trial by depending on the police report without any further inquiries. The victim was charged and is in jail awaiting trial.
Getting away with delays
Prosecutors are required to resolve complaints within ten days after receiving the affidavits of both the complainants and respondents (Rules of Court, rule 112, section 3[c]), but in reality it may take months or even years to do so. The lack of prosecutors and overloading of cases means that prosecutors escape sanction from the courts.
Once the prosecutor issues his resolution and the filing of charges in court is endorsed, an arraignment is scheduled for the accused to enter a plea. Under the Speedy Trial Act, from filing of complaint to arraignment 30 days are permitted, from the entry of a plea to the date of trial, another 30 days, the trial itself another 180 days, and a decision handed down by the court within 90 days after that. All in all, a case should be completed within 11 months. However, many cases drag on for years. Some arraignments alone take years to complete, during which time the accused are detained. Judges also postpone and reset the hearing dates of trials as a result of the nonappearance of witnesses, defense lawyers or prosecutors.
Endemic delays and a lack of accountability for them have enormous consequences for the accused. For instance, after Pegie Boquecosa was arrested in Maasim, Sarangani in September 2002, the prosecutor handling his case failed to resolve the complaint of murder that the police filed for nearly three years. The prosecutor’s inability to resolve the case didn’t stop him from filing repeated requests before the court for continued detention of the suspect.
In another case, it took a prosecutor handling the complaints of five torture victims known as the “Abadilla Five” five years to do her work and even then she was unable to resolve them. The complaint, which was filed by the Commission on Human Rights in June 1997, dragged on for years because the prosecutor lost court documents that she took home, in violation of procedure. However, the loss of documents alone cannot explain the delay, as it took place long after the case had been pending with her. The prosecutor faced an administrative charge of negligence and was removed from the case. But the administrative complaint against her before the OCSP has not progressed and she has reportedly continued to carry on her duties. Meanwhile, after the OCSP took over the case, it resolved to dismiss it. Over ten years on, the complaint is now the object of appeals by one of the victim’s legal counsel.
There are also double standards in the implementation of the courts’ rule allowing respondents ten days to submit affidavits before a prosecutor resolves a complaint. While police investigators may request prosecutors to grant them an extension should they require more time to gather evidence, or should they be ordered by the prosecutors to do so, in some cases prosecutors files charges in court and the court subsequently issues arrest orders without respondents having been properly informed or even knowing that they have been charged in court, thereby denying them the opportunity to make a reply to the charges against them.
For example, a court issued arrest orders for theft and trespassing against hundreds of farmers in Bondoc Peninsula, Luzon on the prosecutor’s recommendation following a complaint from an influential landowner whose landholdings were the subject of a dispute with the farmers. The poor farmers were not aware that complaints had been filed against them before the prosecutor’s office. The prosecutor nevertheless resolved the complaint based solely on the landowner’s complaint.
Under the Comprehensive Agrarian Reform Law of 1988 (RA 6657), the Department of Agrarian Reform (DAR) has “exclusive original jurisdiction over all matters involving the implementation of agrarian reform” (section 50). But despite this law, the prosecutor routinely takes cases involving land reform disputes. For instance, the above case against the farmers in Bondoc Peninsula should have been under jurisdiction of the DAR; however, the prosecutor nevertheless resolved the complaint and the judge also issued arrest orders based on the prosecutor’s findings. The case has been challenged on lack of jurisdiction and the appeals process is continuing.
Similarly, a landlord filed a complaint of forcible entry against 21 farmers and their families in Balasan, Iloilo with the prosecutor’s office. The farmers were living on the land and tilling it as they had claimed ownership under the land reform law. Once again, the matter should have been under the exclusive authority of the DAR but instead the prosecutor accepted and resolved the complaint by recommending the filing of charges against the 21 farmers in court. The landlord was emboldened after charges were laid and brought in armed men to forcibly drive the farmers off the land. Once again, a lengthy appeals process is challenging the authority of the prosecutor and local court over the case.
Likewise, disputes again arise over the authority of prosecutors to handle cases involving labour disputes, which are under the authority of the Department of Labour and Employment to accept, arbitrate and hear.
For instance, when eight workers were arrested and detained at the police station in Rosario, Cavite in September 2006, the prosecutor accepted two complaints filed by the police for possession of subversive documents and trespassing. The prosecutor subjected the workers to inquest proceedings, although the documents in question were reading materials on labour rights and the supervisor had permitted the workers to occupy a space at the factory. The prosecutor dismissed the complaint of possessing subversive documents for lack of evidence but recommended the filing of charges for trespassing, without regard to a regulation requiring prosecutors to obtain “clearance from the Ministry of Labor [now the Department of Labour and Employment] and/or the office of the President before taking cognizance of complaints for preliminary investigation and the filing in court of the corresponding information of cases arising out of or related to a labor dispute” (Ministry Circular 15 , 7 June 1982). Although the workers had claims pending for unpaid wages and benefits in an insolvency hearing in court, the prosecutor nevertheless resolved the complaint of trespassing filed by the police without investigating further whether the complaint was related to the ongoing labour dispute and court proceedings. The prosecutor also denied a petition filed by the victims’ legal counsel arguing lack of jurisdiction. The case was eventually dismissed.
One reason that prosecutors take on such cases is due to vague provisions of law regarding jurisdiction where there is an element of crime in disputes that come under the authority of quasi-judicial government departments. Prosecutors may prefer to just file complaints and leave it to the court to decide rather than have to do so themselves, thus needlessly increasing the number of cases in the courts. This is particularly true where the complainants are wealthy and powerful landholders or employers who are fighting off peasant groups and labour unions. By contrast, prosecutors may handle similar types of complaints from workers or farmers with a different set of standards. For instance, when one of the eight workers in Rosario, Cavite filed a complaint of grave threat against one of those who arrested and charged them for trespassing, the prosecutor refused to accept it, saying that he could not tolerate a complaint motivated by “revenge” against the arresting officers. Thus it was possible for the police to file charges despite the prosecutor’s questionable jurisdiction, but the complaint of a victim seeking a legal remedy for the alleged threats of security officers was dismissed out of hand. Under the rules of criminal procedure, complaints can only be dismissed—either for lack of jurisdiction or lack of grounds to continue with the investigation—within ten days after being filed with the prosecutor’s office (rule 112, section 3). Notwithstanding, this prosecutor arbitrarily denied the workers their right to file a complaint by dismissing it even before looking into the merit of their complaint and without the possibility of review.
Ill-prepared for trial
Prosecutors often appear in court without adequate preparation of themselves and others. It is the prosecutors’ responsibility to ensure that matters concerning the trial are well organised in order to proceed on schedule. Where they fail to do this, the presiding judge must postpone hearings, yet they do not face sanctions for the lack of preparation.
One reason that prosecutors appear in court unprepared without fear of consequences is that the Speedy Trial Act exempts the “absence or unavailability of the accused or any essential witnesses” in computing delays in the trial of cases (section 10[b]). Therefore, prosecutors can deliberately delay a trial by not presenting witnesses, or be unconcerned by their failure to do so for whatever reason.
Take the case of three men facing charges of alleged possession of explosives and firearms in General Santos City during April 2002. When they were arrested, the police allegedly planted evidence and tortured them to admit to the offences. The trial has dragged on for years due to the prosecutors’ failure to ensure that witnesses or police investigators appeared on trial, including after the police investigator handling the case was transferred to another post. The continuing delays have been aggravated by the frequent replacement of prosecutors handling the case. For instance, on 1 August 2007 the case was postponed because the prosecutor appearing in court was new and his predecessor had been promoted to the position of judge in the same court, whereupon he excused himself from hearing the case because he was the former prosecutor. On the last scheduled hearing, the newly appointed prosecutor once again asked from the presiding judge to defer the trial since he has to review all the documents.
Acting as mediator
Prosecutors are not permitted to act as mediators in criminal cases, but in practice they do so, particularly in cases involving bad debts, in order to reduce court dockets and decongest the courts of creditors seeking to use them as de facto collection agencies. Thus prosecutors have become intermediaries in such cases. In fact, there have been recommendations and suggestions to explore mediation as means of reducing court dockets. This is a dangerous trend that could eventually affect cases involving human rights violations, but so far the government seems keen on the idea of mediation as alternative means to resolve criminal cases.
Ultimately the government’s obligation is to ensure that the prosecution service has the money, people and means to function effectively, to ensure that it performs the specific duties with which it is mandate, rather than those that are outside of its responsibility and rather than cutting corners for want of resources or for other reasons.
Prosecutors play a major role in seeing that victims of human rights abuses have access to remedies, particularly under Philippine law. Where they do not perform their role properly, they become a major obstacle, rather than aid, to redress. Where the government recognises problems in the prosecution system but fails to make the necessary reforms, it too is in breach of its obligations and is a threat to human rights. To date, despite many recommendations from legal professionals and legislators for reform of the NPS, the government has been negligent in not giving them sufficient attention.
In the Philippines today, security forces accused of perpetrating gross abuses, including extrajudicial killings, forced disappearances and torture, are rarely prosecuted and enjoy impunity in large part to the prosecutor’s failures and concomitant loss of faith among victims of abuses in the justice system. Some of the things that the government needs to do to rectify this situation are as follows.
a. The NPS must be allowed to exercise its power independent from the DoJ, funded and staffed sufficiently from outside the department.
b. A comprehensive and public study should be conducted into the extent to which the existing policies and guidelines for prosecutors are actually complied with, especially concerning the requirements that they be involved in police investigations, with a view to making further proposals for change.
c. There should be periodic publicly reported evaluations of the work done by the prosecution service to allow for more concerned persons to get involved in discussions about reforms.
d. A special evaluation should be undertaken into the efficiency of the internal complaint mechanism of the service so as to better identify and weed out incompetent prosecutors.
e. The order allowing police officers to prosecute cases with authority from the prosecution service should be revoked and instead adequate pay and other remunerations be paid to prosecutors to ensure that the service has the staff that it needs to do its job as mandated.
f. The rightful jurisdiction of prosecutors in handling certain types of cases, particularly those involving labour and land disputes, should be clarified and adequate guidelines given so that prosecutors are unable to usurp the jurisdiction of other quasi-judicial bodies in hearing cases.
Posted on 2008-03-31