Petitioners was charged with of violation of the Anti-Graft and Corrupt Practices Act. The accused was found guilty of the said charged while some of their co-accused was acquitted. The accused then raised the issue of violation of the equal protection clause.
Whether the right of petitioners Farouk B. Abubakar and Ulama S. Baraguir to the equal protection of the laws was violated due to “selective prosecution”;
The prosecution of offenses is generally addressed to the sound discretion of the fiscal. A claim of “selective prosecution” may only prosper if there is extrinsic evidence of “clear showing of intentional discrimination.” The prosecution of one person to the exclusion of others who may be just as guilty does not automatically entail a violation of the equal protection clause.
Where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty. although a violation of the statute, is not without more a denial of the equal protection of the laws. The unlawful administration by officers of a statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design over another not to be inferred from the action itself. But a discriminatory purpose is not presumed, there must be a showing of “clear and intentional discrimination.” Appellant has failed to show that, in charging appellant in court, that there was a “clear and intentional discrimination” on the part of the prosecuting officials.
Although “selective prosecution” has not been formally adopted in this jurisdiction, there are cases that have been decided by this Court recognizing the possibility of defendants being unduly discriminated against through the prosecutorial process. The burden lies on the defendant to show discriminatory intent through extrinsic evidence.
Petitioners failed to establish discriminatory intent on the part of the Ombudsman in choosing not to indict other alleged participants to the anomalous transactions. Their contention that several other public officials were not criminally charged, by itself, does not amount to a violation of petitioners Abubakar and Baraguir’s right to equal protection of laws. The evidence against the others may have been insufficient to establish probable cause. There may have been no evidence at all. At this point, all this Court could do is speculate. In the absence of extrinsic evidence establishing discriminatory intent, a claim of selective prosecution cannot prosper.