In the News: Selective Prosecution

One of the issues highlighted by the recent charges of corruption leveled against former AFP Chief of Staff and Cabinet Secretary Angelo T. Reyes (following which he chose to end his life by his own hand) is the risk of being subjected to selective and malicious prosecution by one’s political enemies.  Some quarters have taken the view that it was manifestly unfair for Secretary Reyes to have been subjected to intense and hostile questioning by his political opponents before the Senate (with full media coverage or “trial by publicity”).  Based on what are reported to be some of Secretary Reyes’ final words on this issue (see link to a report by the Philippine Center for Investigative Journalism here), it appears that the assailed systems and “traditions” within the AFP were extant at the time he joined the service.  Some have theorized that there are other, more powerful persons behind the scenes who are far more deserving of punishment, but have managed to evade prosecution due to their political connections.

Is selective prosecution a valid defense under Philippine law?

The case of Commissioner of Internal Revenue v. Court of Appeals (G.R. No. 119322, 4 June 1996) is of some guidance.  In that case, the Commissioner of Internal Revenue filed a complaint against Fortune Tobacco Corporation and several of its officers for tax evasion.  One of the defenses raised was that the accused were being singled out for criminal prosecution in a discriminatory fashion, thus violating the equal protection clause of the Constitution.

The Court found that the prosecutors had excluded certain evidence that would have shown that other tobacco companies had paid the taxes on the same basis and in the same manner as had Fortune (and yet, according to the accused, were not similarly charged with tax evasion).  According to the Court, this indicated that only Fortune was singled out for prosecution.  However, the Court stopped short of making a categorical statement that selective prosecution is a valid defense, as there were other grounds on which the Court based its acquittal of Fortune and the other accused.

In a separate opinion, Justice Bellosillo dissented from the majority’s finding that there was selective prosecution of Fortune and the other accused.  According to Justice Bellosillo, “[t]here is no showing that [ ] Commissioner of Internal Revenue is not going after others who may be suspected of being big tax evaders and that only [the accused] are being prosecuted, or even merely investigated, for tax evasion …  [A]ssuming ex hypothesi that other corporate manufacturers are guilty of using similar schemes for tax evasion, the proper remedy is not the dismissal of the complaints against private respondents, but the prosecution of other similar evaders.”  Justice Bellosillo also pointed out that “in the absence of willful or malicious prosecution, or so-called ‘selective prosecution,’ the choice on whom to prosecute ahead of the others belongs legitimately, and rightly so, to the public prosecutors.”

The case of Drilon v. Court of Appeals (G.R. No. 106922, 20 April 2001) also sheds some light on the issue.  In Drilon (involving a civil complaint for damages brought by Senator Juan Ponce Enrile, based on the filing of criminal charges against him for “rebellion complexed with murder and frustrated murder,” a crime which the Supreme Court, in separate proceedings, had ruled non-existent), malicious prosecution was defined as a criminal prosecution, civil suit, or other legal proceeding instituted against another maliciously (or other “improper and sinister motives”) and without probable cause.  The gist of the action is the putting of legal process in force, regularly, for the mere purpose of vexation or injury.  In such a case, the victim of malicious prosecution may claim damages from the prosecutor.

In Drilon, the Court clarified that a civil claim for damages based on malicious prosecution should be filed only after the accused shall have been acquitted, i.e., after the criminal charges have been dismissed and it can be established that the prosecution was in fact maliciously brought.  According to the Court, allowing a party to file a complaint for malicious prosecution before his acquittal would stifle the prosecution of criminal cases by the mere expediency of filing damage suits against the prosecutors.

The rule is more clearly stated in the United States.  In the case of U.S. v Christopher Lee Armstrong et al. (517 US 456, 1 16 S.Ct. 1480 [1996]) – which involved an allegation by the accused that they had been selected for prosecution on the basis of their race – the U.S. Supreme Court (citing numerous cases) noted that a selective prosecution claim is “not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.”

The U.S. Court noted that prosecutors retain “broad discretion” to enforce criminal laws because they are designated by statute as the Executive’s delegates to help him discharge his constitutional responsibility to ensure that the laws be “faithfully executed,” and that the presumption of regularity supports their prosecutorial decisions in the absence of clear evidence to the contrary.  That said, the U.S. Supreme Court went on to note that a prosecutor’s discretion is nevertheless “subject to constitutional constraints” such as the equal protection clause, which requires that a decision whether to prosecute may not be based on “an unjustifiable standard such as race, religion, or other arbitrary classification.”  Where it is demonstrated that the administration of a criminal law is “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive,” the system of prosecution amounts to “a practical denial” of equal protection of the law.

The U.S. Court cautioned, however, that courts should be hesitant to examine a decision whether to prosecute.  The Court noted that the factors usually considered in deciding whether to prosecute – e.g., the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan – may not be within a court’s competence to evaluate.  Additionally (citing reasons similar to those that would be noted by the Philippine Supreme Court in Drilon five years later), courts should note that “[e]xamining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decision making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy.”

The requirements for a selective prosecution claim draw on “ordinary equal protection standards,” i.e., the claimant must demonstrate that the prosecutorial policy “had a discriminatory effect and that it was motivated by a discriminatory purpose.”  For example, to establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.  In the Lee Armstrong case, the U.S. Supreme Court ruled that the accused failed to show that the government chose not to prosecute those in similar situations, and dismissed their claim.

(Philbert wishes to thank Von Cuerpo for his assistance in preparing this post.)