Agra's Disregard of Evidentiary Standards

DOJ Secretary Alberto Agra has found himself in the middle of a storm for dismissing the murder charges against two Ampatuan clan members in connection with the gruesome massacre of Mangudadatu supporters and journalists in Maguindanao. The besieged justice secretary reversed the preliminary investigation findings of his prosecutors, claiming there is not enough credible evidence to warrant the filing of murder charges against the two Ampatuans.

The prosecutors, however, who recommended the filing of the murder charges based their conclusion on the testimony of an unbiased eyewitness, as against the alibi foisted by the Ampatuans. Historically considered as a weak defense, the Ampatuans' alibi should have been left for consideration during the trial proper and not during the preliminary investigation, especially that there is an eyewitness to support the filing of charges.

It bears noting that during the preliminary investigation stage, what the investigating prosecutor needs to determine only is whether or not a crime has been committed, and if so whether or not the person being investigated is probably guilty thereof. "Probable cause" is the key phrase. As the name implies, the probability of guilt only is what needs to be determined, and not the certainty of guilt - a standard applied during the trial proper only.

There is no doubt that the massacre did occur. There is also evidence that the Ampatuans may have been involved, as testified to by the eyewitness who claims he knew first-hand of the Ampatuans' participation in the planning of the massacre. These are facts and circumstances which would engender a well-founded belief that a crime has been committed and that the Ampatuans are probably guilty of the crime charged. Under our rules of criminal procedure, this is sufficient for the prosecutor to indict the Ampatuans. Take note, the purpose of the investigation is not to find guilt but a cause for filing the charges. Accusation is not synonymous with guilt. The Ampatuans will still get their day in court to refute these charges, and that will be the time for them to scrutinize the truthfulness of the eyewitness testimony, question his motive, test the veracity of this statements or refute them with contradictory evidence, such as alibi.

It is therefore no wonder that even Agra's chief state prosecutor went public against his decision to drop the charges against the two Ampatuans. He clearly disregard the evidentiary requirement in preliminary investigation, by wrongly applying the much higher standard of proof beyond reasonable doubt that should only be made during the trial proper.

Dimensions of a Failed Election and What GMA Needs to Do

As the May 10 elections near the failure of elections anxiety grows even stronger. This fear acquires special significance because for the first time in Philippine history the elections will be automated - at least on a nationwide basis, since we already had a taste of computerized polls during the ARMM elections. In this coming elections, however, the stakes are high as all positions, from president down to the councilor of the smallest municipality, will be voted for.

Failure of elections is not something new in our electoral lexicon. Losing candidates have at various times in the past utilized this as a legal tool to annul the proclamation of their rivals. More often than not, however, this legal argument has been met with disapprobation from the Supreme Court. The High Court has sustained this claim only in the clearest cases of electoral frauds.

Section 6 of the Omnibus Election Code identifies the instances under which the Commission on Elections (Comelec) can declare a failure of elections, which the Supreme Court in Soliva v. Comelec, G.R. No. 141723 (April 20, 2001) has enumerated in the following manner:

Section 6 of the Omnibus Election Code contemplates three instances when the COMELEC may declare a failure of election and call for the holding of a special election. First, when the election in any polling place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous cases. Second, when the election in any polling place had been suspended before the hour fixed by law for the closing of the voting. And third, after the voting and during the preparation and the transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect.

In the context of automated polls, many fear failure of elections with computers breaking down or not transmitting election results. The glitches experienced in the recent absentee voting in Hong Kong have only served to heighten this fear. In Roque v. Comelec, however, the Supreme Court dismissed this fear in denying the petition to declare the automation illegal. The Supreme Court said the automation law provides manual voting as a contingency measure in the event computers break down. The problem with this, however, is that if manual voting is resorted to in case of computer glitches, elections in affected precincts may take unusually longer and pass the closing of voting, especially so that precincts are now clustered with registered voters numbering as many as 1,000 in a precinct. Many voters will end up not being able to cast their votes.

Another scenario is the ever-looming threat of electoral fraud. Opponents of automation claim the resurgence of Garci-type cheating, wherein Comelec insiders will rig the PCOS machines by configuring them to make the favored candidates win. Inquirer columnist Amando Doronilla, however, refuses to accept this possibility in his February 16 article Who Will be the Evil Genius? According to him, there is none among the current presidential candidates (except perhaps Gilbert Teodoro via Pres. Gloria Macapagal-Arroyo) who is in a position of authority to direct the manipulation by Comelec. Teodoro and Comelec chair Jose Melo, he says, would not do it. Doronilla argues that President Macapagal-Arroyo has clearly no need for this to further her congressional bid, considering her almost guaranteed victory among her town mates.

If elections fail - because of massive cheating or breakdown of voting machines or both - and the problem is not resolved before the term of office of the president and her constitutional successors ends on June 30, there would clearly be no one legally authorized to lead the country after this date. Since GMA would be the last person to hold the reins of power before the crisis begins, I would suppose she would stay at the helm in the mentime. Now, whether or not she will do so for good remains to be seen.

Although most GMA critics would conclude that she will take this opportunity to remain in power for good, I humbly believe otherwise. If GMA were to perpetuate herself in power she would certainly meet stiff opposition both domestically and internationally, not least of which is the US. With all the military exercises the US has been conducting in the Philippines and the millions of dollars it pours into them, the Philippines is still much within the radar of US global interests. With all its worries on terrorism, the need to check an ever expanding China, and an adventurous North Korea, the last thing the US needs is a failed or weakened Philippine state.

On the local front, a permanent GMA tenancy in Malacañang would elicit thunderous protests from the opposition and civil society groups. Coups are not farfetched. In short what will happen will be nothing short of a civil unrest; even worse, an uprising that could throw the whole country into a bloody revolution. This very gruesome scenario is something that will make Washington even more vigilant in preventing a Marcosian reprise by GMA. With all her faults, I don't think GMA is ready to take this dangerous path.

GMA can, however, do one last thing that will mark her legacy. She could remain in power - a sort of hold-over president - in the event of a failed election. But in doing so, she must assure the public that it will only be temporary until the elections are re-held and completed. By law, the Comelec is mandated to re-hold elections in the event of failure at the first instance. This would entail huge expense and effort, but this is the only way that chaos can be averted.

The alternative of her not staying and vacating office when no successor has been proclaimed and sworn would be more dangerous. Power grabbers from all stripes will try to outdo each other to succeed in power. There can be no illusion that this will happen peacefully. To be sure it will be a violent race to the top. On the other hand, if GMA were to hold-over, it will simply be a case of status quo. What will save the day is the assurance that she will give to the public that she will only be doing so to pave the way for a smooth transition of power.