How Calida kept De Lima jailed

Jose Calida did not win the showdown of solicitors general with a Pacquiao knockout. Instead, he cunningly wore down the case a la Mayweather for a points win.

The Supreme Court focused narrowly on initial procedure and left questions of evidence to a full trial.


The high court voted 9-6 not to dismiss drug charges against Sen. Leila de Lima. This is not a conviction; rather, it ruled that De Lima must go through a full trial, like any accused.

The court was not convinced that the process should be cut short, even if De Lima was ultimately proven innocent. The yet-unreleased De Lima decision is thus not legally baseless. But it did throw the procedural book at her, perhaps at an anal retentive level.


Drugless drug case

The majority justices are all veteran judges. Five of the six dissenters came from law firms or academia.

De Lima had a formidable defender in the hearings: Florin Hilbay, Calida’s predecessor.

Hilbay argued that De Lima was charged with selling drugs without stating what and how much drugs she sold. A murder charge must state who was killed. A theft charge must state what was stolen. But not drug charges?

Calida argued the charge was conspiracy to sell drugs, not actually selling them.

Convicted inmates claimed that they agreed to sell drugs and pay protection money to De Lima when she was the justice secretary. Thus, Calida claimed he only needed to show conspiracy, not actual drug sale.

Hilbay expressed “due appreciation for the creativity of my former colleagues.” He also decried the inherent lack of credibility of the inmates who served as witnesses.


Not for Ombudsman

De Lima lost her argument that the case was in the wrong court.

Charges against a senior official, by law, are filed by the Office of the Ombudsman in the Sandiganbayan, not by prosecutors under present Justice Secretary Vitaliano Aguirre II in a Regional Trial Court (RTC).

The Sandiganbayan is our special anticorruption court.

The Supreme Court ruled that the charges were properly framed as drug charges, not corruption, even if they described illegal payments but not drug sales. It ruled that drug cases may  be filed only in an RTC even if the accused is a public official, and the Sandiganbayan hears only corruption cases.

In focusing narrowly on how the charges were written, the court declined to probe if their substance was bribery and abuse of power in the New Bilibid Prison.

During the hearings, former Sandiganbayan Presiding Justice Diosdado Peralta mentioned that Quezon Mayor Ronnie Mitra was caught in 2001 moving 498 kilos of “shabu” (crystal meth) using an ambulance.

Mitra was tried in an RTC, even though only a mayor could commandeer an ambulance.

Former Court of Appeals Justice Lucas Bersamin cited a mayor whose police escorts facilitated rape.

Justice Francis Jardeleza framed the problem beautifully: It would violate due process if De Lima was tried by a court with no jurisdiction, raising a constitutional bombshell that would trump all procedural errors.

Procedural violations

But De Lima set up the case poorly in the trial court, before Hilbay took over.

Calida successfully pivoted the case to procedural violations there. He rightly questioned why De Lima elevated the case to the Supreme Court before Muntinlupa RTC Judge Juanita Guerrero even ruled on her objections.

The persistent question in the hearings: What makes De Lima so special?

Peralta asked why De Lima did not ask for a reinvestigation or an amendment of the charges. Hilbay argued this was pointless given their experience with the prosecutors and how quickly Judge Guerrero issued the arrest warrant.

Because Guerrero had not yet ruled, the Supreme Court easily declined to preempt her and left alleged lack of evidence as a matter for trial.

At this initial stage, the court chose to focus on how the charges were drafted.


The high tribunal also concluded that De Lima was forum shopping, or trying her luck with two different courts.

It even focused on how De Lima did not sign her petition in front of a notary. She signed it beforehand then confirmed her signature to the notary.

Senior Associate Justice Antonio Carpio could not hide his surprise at such hypertechnicality with notarization during the hearings.

De Lima’s supporters must bear some blame. They were vocal mainly on superficialities, from prosecutor’ bombastic writing to Aguirre’s toupee.

Even The New York Times highlighted political prosecution, such that no one questioned why the drug charges did not specify the drugs.

Public discourse thus obsessed with the procedural minutiae that Calida pounded on.

React: [email protected], Twitter @oscarfbtan, facebook.com/OscarFranklinTan

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TAGS: Inquirer Commentary, Jose Calida, Leila de Lima, Office of the Solicitor General, Oscar Franklin Tan, Supreme Court, war on drugs
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