Hilbay: No drugs in De Lima drug charges

Can a murder charge omit who died? Can a theft charge omit what was stolen? Then how can drug charges against Sen. Leila de Lima omit what drugs were sold?

Thus did former solicitor general Florin Hilbay frame March 14’s Supreme Court hearing.

De Lima’s case revolves around the wording of the “information” or charge sheet.

It alleged that from November 2012 to March 2013, she extorted money from New Bilibid Prison inmates. She made them trade unspecified drugs and deliver over P10 million to her on specified dates. She took advantage of her public office and used her authority.

The Constitution’s Article III, Section 14(2) requires one “to be informed of the nature and cause of the accusation.” This is the most fundamental right in a prosecution.

The charge is drug trading, not bribery. It violates the Constitution that, to defend herself, De Lima must guess what drugs she allegedly sold.

Solicitor General Jose Calida claims the charge is not drug trading under Section 5 of the Dangerous Drugs Act (DDA), but conspiracy to commit drug trading under Section 26.

He posits this is a separate crime, worded to punish agreements to sell drugs. Actual drug sales need not be alleged, so omitting the drugs from the charge cannot violate the Constitution.

But law generally does not punish plans alone. Recent Supreme Court cases on drug conspiracy all feature charges that specify the type and amount of drugs to the decimal place, and require an “overt act” beyond mere plans.

Hilbay voiced “due appreciation for the creativity of my former colleagues”—21 of 25 assistant solicitor generals cosigned Calida’s pleading.

De Lima’s warrant of arrest was based on a Department of Justice investigation for drug trading. Calida’s completely different theory on conspiracy did not yet exist when the judge issued the warrant.

If Calida’s “creativity” is right, Hilbay asserted, the judge must be wrong—and the warrant must be invalid!

The Supreme Court’s veteran judges dived into trial minutiae, never so beautifully in their element since 2013’s Cybercrime Act hearings. Former Court of Appeals justices Presbitero Velasco and Lucas Bersamin and former Sandiganbayan presiding justices Diosdado Peralta and Teresita Leonardo de Castro are less appreciated in philosophical constitutional cases.

De Castro playfully reminded Hilbay that she led the anticorruption court.

Hilbay argued that De Lima’s charges must be filed in the Sandiganbayan. It tries cases related to a senior official’s powers. She could not extort protection money without being the justice secretary in control of the prison, as phrases in the information imply.

While trial courts try drug cases under the DDA, Senior Associate Justice Antonio Carpio noted the Sandiganbayan law was amended in 2014 and trumps this older law. Justice Estela Perlas Bernabe quoted Sen. Franklin Drilon that the new law intended to remove only cases with no bribery or damage to the government from the Sandiganbayan.

But the veteran judges cited how taking advantage of one’s office alone did not send past murder and rape cases to
the Sandiganbayan.

The veterans decried at length how De Lima asked the Supreme Court to void the warrant even before the trial court ruled on the similar motion before it, among other procedural violations.

Although justices routinely lambast (then grudgingly overlook) petitioners’ procedural breaches in high-profile cases, the Supreme Court is loathe to preempt a judge in the middle of a criminal trial.

But after recent street protests against the Marcos burial decision, the Supreme Court would be hard pressed to leave De Lima’s case to the trial judge instead of ruling on Hilbay’s crucial, purely legal questions: Can a drug charge omit the drugs? Is extorting money from inmates related to a secretary of justice’s powers?

One might wonder if Calida won in public opinion after media itemized Hilbay’s grilling on procedural missteps. But one realizes justices raised no questions on his central legal argument.

Are justices saving their questions for Calida in tomorrow’s hearing?

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