Supreme Court explains decision keeping De Lima in jail

Lian Buan
Supreme Court explains decision keeping De Lima in jail
Penned by Justice Presbitero Velasco Jr, the SC ruling junks all the points raised by the De Lima camp

MANILA, Philippines – The Supreme Court (SC), in a majority ruling, made sure that Senator Leila de Lima remains in jail as she faces drug charges before a trial court.

The SC, voting 9-6, dismissed De Lima’s petition to nullify her arrest ordered by Muntinlupa Regional Trial Court (RTC) Branch 204 Judge Juanita Guerrero for one of the 3 counts of drug trade filed against her by the Department of Justice (DOJ). (READ: De Lima to appeal SC decision on drug cases)

De Lima argued that she was not sufficiently charged for drug trade. The SC upheld the charges but nonetheless said that the information could always be amended without releasing De Lima from jail.

“Instead, under Section 5, Rule 117 of the Rules of Court, the trial court can simply order that another complaint or information be filed without discharging the accused from custody,” the SC said.

Charge is sufficient

The ponente of the ruling is Associate Justice Presbitero Velasco Jr, whom De Lima accused of once pushing for the acquittal of drug convict German Agojo, one of the witnesses against her. Velasco has denied the accusation.

In the ruling penned by Velasco, the SC junked all the points raised by the De Lima camp, down to the technicality of her jurat not being signed in the physical presence of a notary public.

De Lima said that the accusations against her constitute the crime of direct bribery, and not what she was charged of, which is violation of Section 5 of the Comprehensive Dangerous Drugs Act or the “sale, trading, administration, dispensation, delivery, distribution and transportation of illegal drugs.”

The senator is accused of instructing drug convicts inside the New Bilibid Prison (NBP) to raise funds for her senatorial campaign in 2016.

De Lima’s lawyer, former solicitor general Florin Hilbay, said the charge was insufficient because the prosecutors did not present a physical proof of the drugs sold. It is referred to by lawyers as the corpus delicti, or in the crime of murder, the dead body. (READ: De Lima camp says SC ruling ‘a travesty of justice’)

But Velasco said that to accuse De Lima of conspiring with the drug convicts is sufficient at this stage.

“On this score, that it has not been alleged that petitioner actually participated in the actual trafficking of dangerous drugs and had simply allowed the NBP inmates to do so is non sequitur given that the allegation of conspiracy makes her liable for the acts of her co-conspirators,” Velasco wrote.

Sale and trade

Senior Associate Justice Antonio Carpio, one of the 6 justices who dissented from the majority, wrote in his dissenting opinion that the crime of illegal sale and trade of drugs should fulfill all elements:

  1. kind and quantity of the drugs
  2. consideration of the sale 
  3. delivery of the object 
  4. payment.

Here is where Velasco and Carpio butt heads. Velasco says sale and trade are two different things.

“Justice Carpio, in particular, would cite cases supposedly enumerating the elements necessary for a valid Information for Illegal Drug Trading. However, it should be noted that the subject of these cases was ‘Illegal Sale’ of dangerous drugs – a crime separate and distinct from ‘Illegal Trading’ averred in the Information against De Lima,” Velasco wrote.

Using the definition of drug trading under the law, Velasco said that it is sufficient at this stage that the prosecution accused De Lima brokered the trade by means of an electronic device.

But Carpio points out that the electronic device definition is just but one of the elements of illegal sale and trading.

Section 5 of the law, which is what is in the information against De Lima, lumps together “sale, trading, administration, dispensation, delivery, distribution and transportation of illegal drugs.”

“Contrary to the position of the ponencia, the crimes of ‘illegal sale’ and ‘illegal trade’ of drugs are both violations of Section 5, except that ‘illegal trade’ involves the use of electronic devices in the sale of drugs,” Carpio said.

In his dissent, Carpio cites 12 of Velasco’s past ponencias and 5 past ponencias of Associate Justices Diosdado Peralta, Mariano del Castillo, Lucas Bersamin, Teresita Leonardo De Castro and Noel Tijam, which all said that all elements must be fulfilled to properly charge a person for the crime of violating Section 5 of the law.

The 5 justices mentioned above voted to denied De Lima’s petition along with Velasco and Duterte appointees Associate Justices Samuel Martires, Andres Reyes, and Alexander Gesmundo.


The SC majority ruling also ruled that it is the DOJ, and eventually a trial court, which have the jurisdiction to try De Lima. (READ: EXPLAINER: Issues on jurisdiction in De Lima cases)

For one, they said, it was clear in the text of the Comprehensive Drugs Act that the trial courts are “exclusively vested” with the jurisdiction try cases. 

The De Lima camp pointed out that the Sandiganbayan law covers public officials above salary grade 27 who committed a crime related to her office, which they said apply to De Lima.

But the SC said that in the event of overlapping laws, it is the special law – in this case the Comprehensive Drugs Act – which shall prevail over the general law which is the Sandiganbayan law.

The SC also said that the trial court judges were trained by the Philippine Judicial Academy (Philja) to handle cases which deal with chemical substances.

“Without a doubt, not one of the Sandiganbayan justices were provided with knowledge and technical expertise on matters relating to prohibited substances,” the ruling said.

The SC also cites data: “As of June 30, 2017, there are 232,557 drugs cases pending before the RTCs. On the other hand, not even a single case filed before the Sandiganbayan from February 1979 to June 30, 2017 dealt with violations of the drugs law.”

All doors closed

The SC said also sided with Solicitor General Jose Calida who said De Lima violated the hierarchy of courts.

De Lima had filed a motion to quash with the Muntinlupa RTC, which has not been resolved yet. The SC said the Senator should have waited for the trial court to resolve that first before running to the High Court.

“In the light of the foregoing, the best course of action for the Court to take is to dismiss the petition and direct the trial court to rule on the Motion to Quash and undertake all the necessary proceedings to expedite the adjudication of the subject criminal case,” the ruling said.

Unfortunately for De Lima, her motion to quash will now be decided on by Judge Guerrero in the context of this new SC ruling which has already thrashed her arguments.

And as the SC said, even if she wins that one in the trial court level, “an order sustaining the motion to quash the information would neither bar another prosecution or require the release of the accused from custody.” –

Add a comment

Sort by

There are no comments yet. Add your comment to start the conversation.


Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email or tweet @lianbuan.