Never again an Arroyo and De Lima injustice

I have been doing a lot of radio and TV interviews these past days, especially with provincial radio stations hungry for analysis, on the De Lima case. Below are my propositions:

1. The De Lima prosecution and arrest is a travesty of justice. There is absolutely no basis for the case. This is a political vendetta and intended to silence dissent. De Lima will eventually be released by the courts, if not soon, by the end of the Duterte administration. I hope it will be sooner and she does not have to wait as former president Gloria Macapagal Arroyo had to. 

2. It is not right to say De Lima is the first political prisoner of the Duterte administration as there are many already from the ranks of social activists, militant farmers and workers included, and revolutionaries who preceded her. The National Union of Peoples’ Lawyers is right and we must remember them. But De Lima does have the honor to be the first politician to be detained by this government.

3. The complaint, and the resolution on which it was based, on its face, is fatally defective in that it is not understandable and written in such bad English that the ultimate facts alleged cannot even be established. Such poor quality of work must make veteran prosecutors of the Department of Justice, and I know many of them to be very good, cringe.

3. Using guesswork to understand what the prosecutors are alleging, the cases against De Lima are based on the testimonies of convicted drug lords. There is no way any court would allow immunity for these witnesses and their testimony will surely be treated as trash. Giving them immunity is a very bad precedent and will wreak havoc on our criminal justice system. Political personalities will be targeted and made vulnerable by the threat of criminals to turn witness against them. It could also be a form of revenge against crusading officials.

4. There is a real question of jurisdiction here, on whether the primary jurisdiction of the Ombudsman is exclusive of the Department of Justice. There have been cases when the Supreme Court has allowed the DOJ to file these cases but never in a case involving a Cabinet official. It all boils down to whether she was performing her duties when she allegedly trafficked in drugs. If she did the latter, it could only be in the context of the former. Thus, my view is that jurisdiction here is exclusive to the Ombudsman.

5. The speed with which Judge Juanita Guerrero issued the arrest warrant disturbs me. The Constitution and the Rules of Court require personal determination of probable cause. It is a valid question to ask how much due diligence she applied here to make such a determination. I respect her authority of course and will expect her to listen to the pending motions filed by De Lima’s lawyers.

6. On whether Senator De Lima is just getting a taste of her own medicine, karma as some would say, I make distinctions. 

a. I have always been vocal that the Aquino administration, through then Secretary De Lima’s actions, was wrong about GMA. They violated GMA’s rights to due process and presumption of innocence. The election sabotage case was nonsense from the very beginning and, at some point, when the evidence could not be found proving plunder (it requires appropriation for personal use), they should have dropped the PCSO case or downgraded it to technical malversation or other similar lower crime, allowing GMA to be freed on bail. There is no justification for what the Aquino administration did to GMA. It should never happen again.

b. The Corona impeachment is a bit different. It was railroaded by the House of Representatives, with the complaint drafted over a weekend. The whole process became a fishing expedition. In that case though, Corona made admissions that led to his conviction. Still, the use of funds from the Disbursement Acceleration Program (DAP) to obtain the votes of senators was terrible and should be condemned by everyone. It was not right for the Daang Matuwid (Straight Path) administration to do what they did. It’s sad because the DAP later on would taint the record of that administration. 

c. The case against Senator Enrile seems to me to be weak as there is no documentary and testimonial evidence linking him to Napoles. It seems he was included principally for political reasons. That should not be done.

d. The cases against Senators Jinggoy Estrada and Bong Revilla seem to be airtight and completely above board. This is true for most accused in the PDAF cases, although I would take exception to those filed against Budget Undersecretary Mario Relampagos and other DBM personnel.

e. For sure, De Lima’s DOJ, as in all previous administrations, violated the human rights of political prisoners wantonly, filing and prosecuting common crimes when the cases should be rebellion. Such an evil and legally incorrect practice continues under the present administration. 

f. Nevertheless, as wrong as she was in some cases, a wrong never justifies a wrong. Because then we will end up with all wrongs and never with a right.

7. Going forward, I propose that the standard of probable cause should now be brought higher so that criminal prosecution cannot be made a political tool. People should not be charged for crimes where the chances of getting a guilty verdict is none to slim. The standard of prima facie evidence has been so distorted in this country and an accusation alone, plus political or other considerations, leads to prosecution. This is also the reason why so many Filipinos are detained without trial even as conviction rates are very low.

8. A reform of the justice system requires also an independent Secretary and Department of Justice, and we have not had that for a long time. In fact, I would say that Jose W. Diokno under President Diosdado Macapagal was the last such secretary. Diokno defied his President on the Stonehill case, although in that case, the former was accused of violating the rights of the American tycoon accused of corrupting government officials. Thankfully Diokno learned the right lesson from that experience and became, after he too was subject to such violation by Marcos, the greatest human rights lawyer or this country. 

To sum, this can be a good experience for De Lima, as it was for Diokno and for Ninoy Aquino. I wish she comes out of this not angry, but purified to do the right thing at all times for all people. Doing the right thing the right way, always the right way and consistent with the human rights of every individual, is the only rule that people who have power must follow. I wish the same for her supporters who are upset and even full of hate (according to one friend, more like indignation) right now. 

This sad episode can also be good for the country if we finally reform our criminal due process system. Let’s all work together so that an Arroyo or De Lima injustice will never happen again. – Rappler.com