On Aug. 21 last year, waxing expansive in the wee hours, President Duterte shared the secret to his work as a city fiscal. “I learned a lot during my prosecution days. We planted evidence,” he said. “We arrested persons but we released them. But (switching to an example) telling him that it was this person who squealed on him and then when he goes out but killing, we would say it was this fellow who really did it, who did you in.”
It is important to note that the President was volunteering this information in a late-night-into-early-morning news conference he had called. The reason, he suggested, for what we must call out as an illegal tactic was practicality. “We first planted the intrigues, so that we would know where they were or where they came from.”
Now, as President, he has leveled up. The entire prosecution service and the Office of the Solicitor General can now engineer a patently illegal maneuver to ensure the indefinite detention of a political adversary. He has made no secret of his belief that Sen. Leila de Lima deserves to be in jail, and Justice Secretary Vitaliano Aguirre and Solicitor General Jose Calida have obliged him.
Word is going around that the Supreme Court is ready to vote on the urgent petition De Lima filed last April against Muntinlupa Regional Trial Court Presiding Judge Juanita Guerrero, Philippine National Police Director General Ronald dela Rosa, and several others. Ordinary citizens should pay close attention to this case, because at stake is the struggle between the rule of law and the “law” of practicality.
At least four legal issues are at the heart of De Lima’s pending case, but to a concerned citizen like me, the most basic is fundamental, indeed. The government cannot change its mind about the nature of the crime it alleges against a citizen, without giving the accused a chance to defend herself anew. This just isn’t done. Unfortunately, under the first lawyer-president since Ferdinand Marcos, this “lawlessness,” this “whatever works approach,” this “unbounded opportunism” is rule rather than exception. (The quotations are from De Lima’s petition.)
It is in fact a matter of public record that De Lima was accused of trading in and profiting from illegal drugs; the entire rigmarole at the House of Representatives was designed to make this case in the court of public opinion. (I must note that it initially succeeded.) The Department of Justice subsequently charged her with this violation.
But not a single gram of the illegal drugs she was supposed to have traded in or profited from could be produced. This lack of what is called the corpus delicti led the Office of the Solicitor General to argue that De Lima violated, not Section 5 of the anti-drugs law, but Section 26: conspiracy to commit trading in illegal drugs. De Lima’s petition notes that this drops “the charge of consummated trading in dangerous drugs penalized under Section 5, and unceremoniously supplanting it with the supposed offense of conspiracy to commit trading in dangerous drugs, an offense for which no one has ever been charged.”
The DOJ then adopted the OSG’s position, and in oral arguments Calida admitted that the government now considered De Lima in violation of Section 26, not the Section 5 that she was charged with officially.
In a word, De Lima is in detention for the wrong crime — deliberately put in a maze of cement walls and barbed wire by the government’s chief lawyer, no less, with the consent of the justice secretary himself. This is not a mere technicality (“the difference between provisions doesn’t really matter, as long as she is in jail”) but a travesty (“she was accused of one thing, but is detained for another”).
De Lima, through her counsel, belabors the obvious: “The government’s unbounded opportunism towards the accusations against Petitioner can only mean that these charges are fake.” And on this fakery the executive branch jerrybuilt a case to deny a senator of the Republic elementary justice.
Like many others, I’ve visited with De Lima; like many others, I stand with Chief Justice Maria Lourdes Sereno; like many others, I will defend Ombudsman Conchita Carpio Morales’ undoubted integrity. They and others like them make the rule of law possible; Calida and Aguirre, and Mr. Duterte, make the rule of law necessary.
On Twitter: @jnery_newsstand
Note. This column was updated at noon on October 3 to correct an error; Judge Guerrero is presiding justice of the Muntinlupa RTC, not Mandaluyong.