The victim and an acquittal

The victim and an acquittal

THE freshman student in a college or school of law will inevitably study the constitutional proscription against double jeopardy. No person shall face jeopardy more than once for the same offense. It is principles (beliefs and myths, perhaps) like these that stand scrutiny if one is to engage in thorough philosophy of the law. To be sure, the prohibition is repeated by the organic laws of such international tribunals as the International Criminal Court and the ad hoc tribunals for the former Yugoslavia and Rwanda: “ne bis in idem” — never twice for the same thing, is the way these international documents phrase the guarantee.

Double jeopardy and other legal principles — including the principle that the victim of a crime is at most only the witness of the State that is the real aggrieved party — were in issue before the Supreme Court in a case entitled Austria v. AAA and BBB, GR 205275, promulgated on June 28, 2022.

To be sure, the prohibition of double jeopardy is not a principle at the service of truth, for it sets the accused free when an appeal would have been able to identify errors either in the appreciation of fact or the application of law that do not rise to the level of that confusing standard: “grave abuse of discretion.” In such cases, the victim would have no recourse but to live with the untruth judicially pronounced that she was never a victim!

It is usually argued for as a principle of humanity. It is cruel to submit a person to the arduous burden of standing accused one more time around after having been acquitted. While it is a posture that appeals to reason and to everyone’s desire to live in peace, unperturbed by indictments and charges, it gives consent to the possibility that the victim may yet be victimized by an erroneous acquittal of the accused.

Then there is the myth that the legal victim of a criminal offense is the State — and the result is of course to deny the real victim any standing to question judgments of acquittal or even disadvantageous interlocutory orders or resolutions. The Office of the Solicitor General, as official lawyer of the Republic of the Philippines, takes up the cudgels for the victim, but primarily, for the State. So it is that when owing to the volume of cases in which the Office of the Solicitor General has representation, no recourse is taken against an adverse order, resolution or judgment, the victim is helpless — because we are conditioned by this skewed principle that the victim of a criminal case is the social order, represented by the Solicitor General.

A man shot to death by an assailant is the victim of the crime. The girl who is raped by a maniac is the victim of a crime. The businessman who loses a fortune to an embezzler is the victim. The person whose good name and reputation are tarnished by a reckless radio commentator is the victim. The State is a victim only in the sense that its concept of social order has been upset and disturbed by the perpetrator of a crime, but to draw from this rather remote connection the conclusion that the real victims lack legal standing to question a court’s judgment of acquittal of the accused, or to contest adverse interlocutory orders or resolutions is, to me, to put inordinate consequences on a myth.

In the case cited, the court laid down the following rules that it expressly provides “shall be prospective in application.”

First: The private complainant has the legal personality to appeal the civil liability of the accused, or to file a petition for certiorari. On the matter of the criminal liability of the accused, the private complainant must request the conformity of the Office of the Solicitor General — or allege in the appeal or in the petition for certiorari the pendency of such a request with the Office of the Solicitor General.

Clearly, the private complainant may then file the appeal or initiate an action for certiorari with the conformity of the Office of the Solicitor General, or pending action by the OSG on the request for conformity. So, while in the past, it was believed — and taught to law students — that only in exceptional cases where grave abuse of discretion on the part of the acquitting judge can be shown would certiorari lie, now it seems that an appeal is also available, subject of course to the conformity of the Solicitor General.

Second: The reviewing court shall require the OSG to file a common within a non-extendable period of 30 days from notice on the private complainant’s petition for certiorari questioning the acquittal of the accused, the dismissal of the criminal case and the interlocutory orders in criminal proceedings on the ground of grave abuse of discretion.

Undeniably, these rules constitute a salutary development but they do not, to my mind, go far enough. The rules categorically direct that when the OSG withholds consent, then the appeal or the petition for certiorari must be dismissed. Dismissed, notwithstanding the clarity with which the error or the grave abuse of discretion is set forth? The rule virtually transfers the power of judgment to the Office of the Solicitor General, for in refusing consent or conformity to the appeal or to the petition for certiorari filed by the victim, the real aggrieved party, the OSG can cause an appeal or a petition for certiorari to be dismissed.

There is, however, a door of recourse opened by these new rules that was formerly closed. Common teaching was that against an acquittal, only a petition for certiorari that met the vague, changing and arbitrary standard of “grave abuse of discretion” would prosper. This time, the phraseology of the rule — “The private complainant must request the OSG’s conformity within the reglementary period to appeal or file a petition for certiorari” — then it seems that even appeals can now be entertained, and on appeal, one may point out egregious errors in findings of fact or assailable holdings of law.

The law evolves — and the rules enunciated by this decision constitute a salutary development in jurisprudence, but it is as essential that norms and rules are examined and revisited for the philosophical assumptions they make and the premises on which they rest, for some myths are in fact overstaying and do acquire a canonical status with the passage of time, and their unctuous invocation by even the most learned of professors and jurists.

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