OSG asks SC to junk De Lima’s petition vs arrest over drug raps

BAGUIO CITY—Solicitor General Jose Calida asked the Supreme Court (SC) to dismiss the petition filed by detained Senator Leila De Lima questioning the issuance of warrant of arrest by a Muntinlupa court in connection with the drug trafficking charges filed against her.

Calida issued the response after De Lima through her lawyer former Solicitor General Florin Hilbay reiterated her plea to SC to nullify the warrant of arrest issued by Muntinlupa City RTC Branch 204 Judge Juanita Guerrero and orders her immediate release from detention.

Calida rebutted De Lima’s claim of political persecution supposedly for being a staunch critic of the Duterte administration’s war on drugs as reason for her indictment.

The top government lawyer believed that such argument was misplaced and should not be given weight by the high court.

“It does not likewise help De Lima to allege political persecution to justify the present petition. The writs of certiorari and prohibition are directed against Judge Guerrero. Judge Guerrero does not belong to the executive branch, from which the political persecution is alleged to emanate,” Calida said in his 92-page memorandum filed by the Office of the Solicitor General (OSG) before the high court.

The top government counsel also said that De Lima and her camp are resorting to ad hominem attacks in alleging that the government made a deal with convict Jaybee Sebastian.

In her memorandum filed before the Supreme Court, De Lima and her lawyers accused the OSG of soliciting Sebastian’s testimony against her in exchange for his transfer to the Maximum Security Compound of the New Bilibid Prison.

“Senator De Lima can do better than that there is no truth to her allegations. Her absurd theories are desperate and futile attempts to veer the issue away from her involvement in narco-politics,” Calida noted

“Senator Leila De Lima’s case is not tainted with any element of political persecution. The charges against her only manifest the government’s political will to go against narco-politicians regardless of rank and stature,” the Solicitor General said.

Calida said that De Lima is asking the Supreme Court to take an extraordinary step of suspending the operation of the Rules of Court in order to grant her petition.

Justifying his appearance during the last day of the preliminary investigation against De Lima, Calida said that it is within the OSG’s mandate, as the People’s Tribune, to act or represent the government and the people “in any matter, action, or proceeding which, in his opinion, affects the welfare of the people as the ends of justice may require”.

“The law confers on the Solicitor General not only the duty and authority to provide legal services to the government, but also the discretion to determine which proceedings affects the welfare of the people, so much so that, in his opinion, it is incumbent upon him to participate in said proceedings to protect public interest and promote justice,” Calida explained. “This is because the OSG is not only the law office of the government but also the ‘Tribune of the People.’”

Calida said that the OSG’s role in promoting and protecting the public weal has been recognized by the Supreme Court. Calida cited Orbos v. CSC (1990), wherein the Court noted the Solicitor General’s “burden of assisting in the fair and just administration of justice is clear.”

Calida said that De Lima’s petition suffers from fatal infirmities. According to him, De Lima prematurely filed the present petition, disregarded the principle of hierarchy of courts, violated the proscription against forum-shopping, and attached defective jurats.

“The best argument that the petition is not the plain, speedy, and adequate remedy in the ordinary course of law is De Lima’s prayer in the petition wherein she is asking the Court to enjoin Judge Guerrero from conducting further proceedings until and unless the Motion to Quash is resolved with finality,” Calida said.

“This is an admission that the respondent Judge has not yet resolved the motion to quash. If De Lima wants Judge Guerrero to rule on the motion, there is no reason for the filing of the present petition,” Calida added.

Calida said that the hierarchy of courts doctrine may be disregarded only for the following reasons: (1) when dictated by public welfare and the advancement of public policy; (2) when demanded by the broader interest of justice; (3) when challenged orders were patently void; or (4) when analogous exceptional and compelling circumstances called for and justified the immediate and direct handling of the case.

“De Lima is facing an ordinary criminal case. The issues she has presented are common legal issues which may be passed upon by the Court of Appeals and the RTC,” Calida said.

“No special circumstances exist to justify the immediate and direct filing of the petition with the Supreme Court. De Lima cannot therefore ask the Supreme Court to deviate from the rule,” he noted.

Calida said that De Lima is also engaged in forum shopping. “De Lima’s petition before the Supreme Court raises essentially the same issues and arguments as those she presented in her motion to quash before the RTC,” he explained.

“De Lima committed the abhorrent practice of forum-shopping when she sought remedies before two courts by raising the same causes and praying for essentially the same relief,” Calida said.

“She trifled with court processes and exposed the courts to the possibility of rendering conflicting decisions,” he added.

Calida also said that the jurats attached to the verification and certification against forum shopping and affidavit of merit of De Lima’s petition failed to comply with the 2004 Rules on Notarial Practice.

According to Calida, De Lima never appeared before Atty. Maria Cecile C. Tresvales-Cabalo to present the petition and swear and subscribe her affidavit. Moreover, Calida pointed out that Atty. Cabalo admitted in her affidavit that that petition was already signed before she notarized it.

He likewise defended the decision of Muntinlupa City RTC Branch 204 Judge Juanita Guerrero to issue warrant of arrest against de Lima saying she did not commit grave abuse of discretion by doing so as she observed constitutional and procedural rules in the issuance of the assailed warrant of arrest.

He said Guerrero made a judicial determination of probable cause in issuing the warrant which he pointed out is different from an executive determination of probable cause made by a prosecutor when he or she saw that there is a reason to file the criminal information.

He also pointed out that the issuance of the arrest warrant does not impair the substantial rights of de Lima as its sole purpose is to ensure that she is under custody in order not to frustrate the ends of justice.

“It is not tantamount to a prejudgment on the merits of her motion to quash,” Calida added.

He also said that Section 90 RA 9165 also vests on the DOJ the exclusive jurisdiction to designate special prosecutors to conduct the preliminary investigation.

The same section also authorizes the SC to designate RTCs to exclusively try and hear cases involving violations of RA 9165 contrary to de Lima’s arguments that her case should have been filed with the Office of the Ombudsman and heard by the Sandiganbayan.

“Not all crimes committed by public officers in relation to their office are cognizable by the Sandiganbayan. In fact, the Sandiganbayan has issued a certification that there are no cases involving illegal drugs that are pending before it,” he added.

De Lima earlier filed a petition before the Supreme Court for the issuance of a Temporary Restraining Order (TRO) or a Writ of Preliminary Injunction to invalidate the arrest warrant against her and stop the continuation of her trial before the Regional Trial Court (RTC) of Muntinlupa City.

But Calida stressed that the petition should be considered “unsigned with no legal effect” under the Rules of Court, which he said requires personal subscription of petitioners before notary public.

After the submission of the memorandum, the SC is set to rule on De Lima’s pleas for issuance of a status quo ante order that would result in her release from detention at the Philippine National Police headquarters in Camp Crame and nullification of the arrest order issued by the RTC.

The SC earlier held oral arguments on de Lima’s petitions.

The three-part oral arguments focused on six procedural and substantive issues on the plea of De Lima to nullify the arrest warrant issued by a Muntinlupa court in connection with the drug trafficking charges filed by the Department of Justice.

De Lima, now detained at the PNP Custodial Center, argued that the allegations against her do not actually constitute sale and trading of illegal drugs and liability of government officials under Republic Act 9165 (Comprehensive Dangerous Drugs Act), but rather only direct bribery.

Under the law, petitioner stressed that such charges should fall under the jurisdiction of the Sandiganbayan — not the RTC — because her position at that time was secretary of Justice which has salary grade higher than 27.

Separate cases for three counts of drug trafficking were filed against De Lima before the Muntinlupa RTC which were assigned to three different courts.

The cases for sale and trading of illegal drugs and liability of government officials under Republic Act 9165 (Comprehensive Dangerous Drugs Act) were assigned to RTC Branch 204 Judge Juanita Guerrero, Branch 205 Judge Amelia Fabros-Corpuz and Branch 206 Judge Patria Manalastas-De Leon.

The first case in Branch 204 includes De Lima, Dayan and Ragos.

De Lima is joined by her nephew Jose Adrian Dera in the second case in Branch 205.

The third case in Branch 206 is against De Lima, Dera, Dayan, former BuCor chief Franklin Bucayu, his alleged bagman Wilfredo Elli, high-profile inmate Jaybee Sebastian, and De Lima’s former bodyguard Jonel Sanchez.