In the News: Selective Prosecution

Posted on March 16, 2011 by Philbert E. Varona One of the issues highlighted by the recent charges of corruption leveled against for er !"P #hief of $taff and #abinet $ecretary !ngelo %. &eyes 'follo(ing (hich he chose to end his life by his o(n hand) is the ris* of being sub+ected to selective and alicious prosecution by one,s political ene ies. $o e -uarters have ta*en the vie( that it (as anifestly unfair for $ecretary &eyes to have been sub+ected to intense and hostile -uestioning by his political opponents before the $enate '(ith full edia coverage or .trial by publicity/). 0ased on (hat are reported to be so e of $ecretary &eyes, final (ords on this issue 'see lin* to a report by the Philippine #enter for 1nvestigative 2ournalis here), it appears that the assailed syste s and .traditions/ (ithin the !"P (ere e3tant at the ti e he +oined the service. $o e have theori4ed that there are other, ore po(erful persons behind the scenes (ho are far ore deserving of punish ent, but have anaged to evade prosecution due to their political connections. 1s selective prosecution a valid defense under Philippine la(5 %he case of Commissioner of Internal Revenue v. Court of Appeals '6.&. 7o. 118922, : 2une 1886) is of so e guidance. 1n that case, the #o issioner of 1nternal &evenue filed a co plaint against "ortune %obacco #orporation and several of its officers for ta3 evasion. One of the defenses raised (as that the accused (ere being singled out for cri inal prosecution in a discri inatory fashion, thus violating the e-ual protection clause of the #onstitution. %he #ourt found that the prosecutors had e3cluded certain evidence that (ould have sho(n that other tobacco co panies had paid the ta3es on the sa e basis and in the sa e anner as had "ortune 'and yet, according to the accused, (ere not si ilarly charged (ith ta3 evasion). !ccording to the #ourt, this indicated that only "ortune (as singled out for prosecution. ;o(ever, the #ourt stopped short of a*ing a categorical state ent that selective prosecution is a valid defense, as there (ere other grounds on (hich the #ourt based its ac-uittal of "ortune and the other accused. 1n a separate opinion, 2ustice 0ellosillo dissented fro the a+ority,s finding that there (as selective prosecution of "ortune and the other accused. !ccording to 2ustice 0ellosillo, .<t=here is no sho(ing that < = #o issioner of 1nternal &evenue is not going after others (ho ay be suspected of being big ta3 evaders and that only <the accused= are being prosecuted, or even erely investigated, for ta3 evasion > <!=ssu ing ex hypothesi that other corporate anufacturers are guilty of using si ilar sche es for ta3 evasion, the proper re edy is not the dis issal of the co plaints against private respondents, but the prosecution of other si ilar evaders./ 2ustice 0ellosillo also pointed out that .in the absence of (illful or alicious prosecution, or so?called @selective prosecution,, the choice on (ho to prosecute ahead of the others belongs legiti ately, and rightly so, to the public prosecutors./ %he case of Drilon v. Court of Appeals '6.&. 7o. 106822, 20 !pril 2001) also sheds so e light on the issue. 1n Drilon 'involving a civil co plaint for da ages brought by $enator 2uan Ponce Enrile, based on the filing of cri inal charges against hi for .rebellion co ple3ed (ith urder

and frustrated urder,/ a cri e (hich the $upre e #ourt, in separate proceedings, had ruled non?e3istent), alicious prosecution (as defined as a cri inal prosecution, civil suit, or other legal proceeding instituted against another aliciously 'or other .i proper and sinister otives/) and (ithout probable cause. %he gist of the action is the putting of legal process in force, regularly, for the ere purpose of ve3ation or in+ury. 1n such a case, the victi of alicious prosecution ay clai da ages fro the prosecutor. 1n Drilon, the #ourt clarified that a civil clai for da ages based on alicious prosecution should be filed only after the accused shall have been ac-uitted, i.e., after the cri inal charges have been dis issed and it can be established that the prosecution (as in fact aliciously brought. !ccording to the #ourt, allo(ing a party to file a co plaint for alicious prosecution before his ac-uittal (ould stifle the prosecution of cri inal cases by the ere e3pediency of filing da age suits against the prosecutors. %he rule is ore clearly stated in the Anited $tates. 1n the case of U.S. v Christopher Lee Armstrong et al. 'B1C A$ :B6, 1 16 $.#t. 1:D0 <1886=) E (hich involved an allegation by the accused that they had been selected for prosecution on the basis of their race E the A.$. $upre e #ourt 'citing nu erous cases) noted that a selective prosecution clai is .not a defense on the erits to the cri inal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the #onstitution./ %he A.$. #ourt noted that prosecutors retain .broad discretion/ to enforce cri inal la(s because they are designated by statute as the E3ecutive,s delegates to help hi discharge his constitutional responsibility to ensure that the la(s be .faithfully e3ecuted,/ and that the presu ption of regularity supports their prosecutorial decisions in the absence of clear evidence to the contrary. %hat said, the A.$. $upre e #ourt (ent on to note that a prosecutor,s discretion is nevertheless .sub+ect to constitutional constraints/ such as the e-ual protection clause, (hich re-uires that a decision (hether to prosecute ay not be based on .an un+ustifiable standard such as race, religion, or other arbitrary classification./ Fhere it is de onstrated that the ad inistration of a cri inal la( is .directed so e3clusively against a particular class of persons > (ith a ind so une-ual and oppressive,/ the syste of prosecution a ounts to .a practical denial/ of e-ual protection of the la(. %he A.$. #ourt cautioned, ho(ever, that courts should be hesitant to e3a ine a decision (hether to prosecute. %he #ourt noted that the factors usually considered in deciding (hether to prosecute E e.g., the strength of the case, the prosecution,s general deterrence value, the 6overn ent,s enforce ent priorities, and the case,s relationship to the 6overn ent,s overall enforce ent plan E ay not be (ithin a court,s co petence to evaluate. !dditionally 'citing reasons si ilar to those that (ould be noted by the Philippine $upre e #ourt in Drilon five years later), courts should note that .<e=3a ining the basis of a prosecution delays the cri inal proceeding, threatens to chill la( enforce ent by sub+ecting the prosecutor,s otives and decision a*ing to outside in-uiry, and ay under ine prosecutorial effectiveness by revealing the 6overn ent,s enforce ent policy./ %he re-uire ents for a selective prosecution clai dra( on .ordinary e-ual protection standards,/ i.e., the clai ant ust de onstrate that the prosecutorial policy .had a

discri inatory effect and that it (as otivated by a discri inatory purpose./ "or e3a ple, to establish a discri inatory effect in a race case, the clai ant ust sho( that si ilarly situated individuals of a different race (ere not prosecuted. 1n the Lee Armstrong case, the A.$. $upre e #ourt ruled that the accused failed to sho( that the govern ent chose not to prosecute those in si ilar situations, and dis issed their clai .