Three options for President Marcos Jr. to free De Lima

The Oct. 9, 2022 harrowing ordeal of former senator Leila de Lima in the hands of Abu Sayyaf member Feliciano Sulayao Jr. brings to the fore the compelling urgency for her provisional liberty or immediate release.

With the criminal charges against her for supposed drug trafficking at the New Bilibid Prison pending trial and no bright prospect of its speedy termination and resolution, there are three options open so she can regain her freedom.

Two options were suggested by Albay Rep. Edcel Lagman and involve President Marcos Jr. exercising his executive power under Section 1, Article VII of the 1987 Constitution which states: “[T]he executive power shall be vested in the President of the Philippines.”

Through the secretary of justice, who is under him, Mr. Marcos can either order the Department of Justice (DOJ) panel of prosecutors to move for the dismissal of charges against De Lima or for the same panel to withdraw its opposition to her petition for bail. Moving for the dismissal of charges or acquittal is not unusual, for it is the prosecutor’s finest hour when he pleads not for the conviction of the accused, but for his acquittal because “his noble task is to prosecute only the guilty and to protect the innocent” (People v. Madera, 57 SCRA 349, 1974).

The third option is for Mr. Marcos to exercise his residual unstated power under the 1987 Constitution by ordering the temporary release of De Lima for humanitarian consideration, while the cases against her are being tried. Though this power is not specifically enumerated in the Constitution, it can be drawn from the potent Section 1, Article III of the 1987 Constitution, which allows the President to do any act not forbidden by the Constitution or law to promote and protect life and liberty.

Section 20, Chapter 7 of Executive Order No. 292, July 25, 1987 (Administrative Code of 1987) recognizes the President’s residual powers, stating “[U]nless Congress provides otherwise, the President shall exercise such other powers and functions vested in the President which are provided for under the laws and which are not specifically enumerated above, or which are not delegated by the President in accordance with law.”

Mr. Marcos will not be the first to use this residual, unstated power. His father, Marcos Sr., exercised this power in 1977 by issuing Letter of Instruction No. 621, Oct. 27, 1977, where Section 12(b), (c) provides that during trial “[A] detainee may be granted temporary release for humanitarian considerations…”

Without waiting for a repeat of the hostage-taking incident at the Philippine National Police Custodial Center, Camp Crame, whose sledgehammer impact has affected the country, this kind of option may prove Solomonic.

May Mr. Marcos, in his finest moment, order the temporary release of De Lima on or before Oct. 27, the same month and day when his father signed LOI 621.

Rene V. Sarmiento,member, 1986 Constitutional Commission,

law professor