Concurring opinions: SC justices on dismissing De Lima’s petition

MANILA, Philippines – Citing prematurity of the petition, forum shopping, and lack of merit, 9 Supreme Court (SC) justices voted to dismiss the petition of detained senator Leila de Lima to nullify the arrest issued against her by a local court over a drug trade case.

The High Court issued its ruling on Tuesday, October 10.

De Lima had asked the SC to nullify the arrest warrant issued against her by Muntinlupa Regional Trial Court (RTC) Judge Juanita Guerrero. In her petition, she argued that the Department of Justice and the RTC don’t have jurisdiction over the drug trade cases against her.

The 9 SC associate justices – Presbitero Velasco Jr, Teresita Leonardo de Castro, Diosdado Peralta, Lucas Bersamin, Mariano del Castillo, Samuel Martires, Noel Tijam, Andres Reyes, and Alexander Gesmundo – voted to dismiss the senator’s petition.

Here’s how the justices explained their concurrence to the ruling.

Presbitero Velasco Jr

Associate Justice Presbitero Velasco Jr, the ponente of the ruling, dismissed the senator’s petition based on both procedural issues and substantive grounds. 

The ruling found De Lima’s petition premature for seeking a writ of prohibition to stop the RTC from conducting further proceedings even as it has yet to rule on her motion to quash pending before the court.

It also said the senator violated the rule against forum shopping, noting that the arguments and reliefs prayed for in both the petition and her motion to quash filed with the RTC were essentially the same.

Aside from procedural grounds, the ruling also found the senator’s petition lacking on substantive grounds.

In her petition, De Lima argued that the accusations against her constitute the crime of direct bribery – a felony within the exclusive jurisdiction on the anti-graft court Sandiganbayan, given her rank as a former justice secretary with Salary Grade 31.

The Information charged against her, however, said she violated Section 5 of Republic Act (RA) 9165 or the Comprehensive Drugs Act or the “sale, trading, administration, dispensation, delivery, distribution, and transportation of illegal drugs.”

De Lima has been accused of facilitating the drug trade inside the New Bilibid Prison (NBP) when she was justice secretary to raise funds for her 2016 senatorial bid.

Her camp said the charge was insufficient because the prosecutors did not present physical proof of the drugs sold.

But Velasco said that De Lima is liable as a co-principal as long as the accused helped and cooperated in the consummation of a felony.

“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.

On the question of whether it is the Sandiganbayan or the RTC that has jurisdiction over De Lima’s case, Velasco pointed out that under RA 9165, jurisdiction over drug-related cases is “exclusively vested with the Regional Trial Court and no other.”

“The exclusive original jurisdiction over violations of RA 9165 is not transferred to the Sandiganbayan whenever the accused occupies a position classified as Grade 27 or higher, regardless of whether the violation is alleged as committed in relation to office,” he added.

On De Lima’s argument that the RTC judge committed grave abuse of discretion in finding probable cause to order the senator’s arrest, Velasco noted that the basis of this contention was two-pronged: that the judge should have first resolved the pending motion to quash before ordering the arrest, and that there was no probable cause to justify the arrest.

But Velasco said that the judge was not required to first revolve the motion to quash, and that her exercise of discretion was “sound” in conformity with the Rules of Court, which gives the judge 10 days from the filing of the complaint or information to evaluate the prosecutor’s resolution and supporting evidence.

Had the judge first dealt with the motion to quash, Velasco said she would have “exposed herself to a possible administrative liability” for failing to observe the Rules of Court.

“Contrary to petitioner’s postulation, there is no rule or basic principle requiring a trial judge to first revolve a motion to quash, whether grounded on lack of jurisdiction or not, before issuing a warrant of arrest,” Velasco wrote.

De Lima also argued that the judge failed to personally determine probable cause for the issuance of her arrest warrant. 

But Velasco said the Court cannot consider the judge to have evaded her duty, noting that the judge evaluated the information and “all the evidence presented during the preliminary investigation conducted in this case.”

“Notably, for purposes of determining the propriety of the issuance of a warrant of arrest, the judge is tasked to merely determine the probability, not the certainty, of the guilt of the accused,” Velasco wrote.

“A finding of probable cause to order the accused’s arrest does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission complained of constitutes the offense charged,” he added.

Velasco also said that the admissibility of evidence and the credibility of the witnesses, among others – which De Lima has contested – are best left to be resolved in a full-blown trial, not during a preliminary investigation or at the stage of determination of probable cause for an arrest warrant.

Teresita Leonardo de Castro

In her concurring opinion, SC justice Teresita Leonardo de Castro agreed with the ponente’s contention that De Lima’s petition disregarded procedural rules, and that the senator’s argument that the judge committed grave abuse of discretion did not have merit.

“Respondent Judge’s issuance of the Warrant of Arrest against petitioner enjoys the presumption of regularity in the performance of her duties, and petitioner utterly failed to show capriciousness, whimsicality, arbitrariness, or any despotic exercise ofjudgment by reason of passion and hostility on respondent Judge’s part,” De Castro wrote.

She also pointed out that even as De Lima assailed the judge for failing to act on her motion to quash, the senator filed her petition before the SC just 7 days after filing the motion before the RTC.

“There is absolutely no showing that respondent Judge had breached the time period for acting on petitioner’s Motion to Quash or that respondent Judge has no intention to act on said Motion at all. Respondent Judge should be accorded reasonable time to resolve petitioner’s Motion to Quash, which is still pending before respondent Judge’s court. Clearly, the present Petition, insofar as it relates to petitioner’s Motion to Quash, had been prematurely filed,” De Castro wrote.

De Castro also scored the petitioner for bypassing the Court of Appeals and disregarding the hierarchy of courts, and for her improperly executed certification against forum shopping, which she had not signed personally before the notary public.

De Castro said these lapses reveal a “cavalier” attitude of the petitioner towards procedural rules.

In her petition, De Lima disputed the contention that she was charged with conspiracy to commit drug trading. But De Castro cited several provisions of RA 9165, particularly on the “trading of dangerous drugs,” which refers to “transactions involving illegal trafficking.”

“The trading of dangerous drugs evidently covers more than just the sale of such drugs and a singular buy-and-sell transaction. It connotes the conduct of a business involving a series of transactions, often for a sustained period of time. It may be committed by various ways, or even by different combinations of ways,” De Castro said.

Even if the Information filed is vague on the offense, De Castro said the proper remedy was not a motion to quash, but a motion for a bill of particulars, which will further specify the charges.

De Castro also agreed that the RTC has jurisdiction on drug-related cases.

“The phrase in the Information that petitioner and her co-accused committed the offense charged by “taking advantage of their public office” is not sufficient to bring the offense within the definition of “offenses committed in relation to public office” which are within the jurisdiction of the Sandiganbayan,” she wrote.

Diosdado Peralta

SC Justice Diosdado Peralta said the petition should be dismissed on the grounds of prematurity and forum shopping.

He noted that De Lima had failed to avail of several other legal remedies before going to the SC.

These include:

• filing of counter-affidavit with an alternative prayer for referral of the case to the Ombudsman; 
• filing a motion for re-investigation before the information is filed in court; 
• filing of a motion for leave of court to file a motion for re-investigation if an information has been filed; 
• filing of a motion for judicial determination of probable cause; 
• motion for bill of particulars; 
• motion to quash warrant of arrest

“Direct resort before the Court through a Petition for Certiorari and Prohibition cannot be justified with a mere speculation that all the remedies available to petitioner before the DOJ or the respondent judge are pointless, and that they acted with bias and undue haste,” Peralta wrote.

Peralta also cited congressional debates on RA 9165 to support the argument that the RTC has exclusive jurisdiction over illegal drugs cases, even if the offender was a public official. 

Samuel Martires

“Glaring in this petition is petitioner’s violation of the rule against forum shopping and the cavalier manner in which she flaunts her disregard of the law.”

This was how Associate Justice Samuel Martires began his separate concurring opinion to dismiss De Lima’s petition. In his opinion, he said De Lima’s violation of the rule against forum shopping merits the outright dismissal of the petition, noting that she declared her pending motion to quash before the RTC and a petition she filed before the CA which formed part of her bases in filing her petition before the SC.

Martires wrote that De Lima resorted to forum shopping “by taking advantage of a variety of competent tribunals, and trying her luck in several different fora until she obtains a favorable result.”

He also agreed that the RTC has jurisdiction over the drug charge against De Lima.

“Although De Lima, as earlier stated, was a high-ranking public officer with salary grade 31 during the time material to the acts averred in the information, the charge against her, however, does not involve a violation of the Anti-Graft and Corrupt Practices Act, the law on ill-gotten wealth, the law on bribery or the sequestration cases,” he wrote.

He said that for an offense to be committed in relation to the office, the relation between the crime and the office must be direct, “such that the offense cannot exist without the office.”

Mariano del Castillo

SC Justice Mariano Del Castillo also concurred with the opinion that the RTC has jurisdiction over the case, pointing out that the salary grade of a public official does not determine which court should have jurisdiction over the case.

“RA 9165 specifically vested with the RTC the jurisdiction over illegal drugs cases. On the other hand, the Sandiganbayanwas specially constituted as the anti-graft court. And since petitioner is being charged with conspiring in trading of illegal drugs, and not with any offense involving graft, it is crystal clear that it is the RTC which has jurisdiction over the matter as well as over the person of the petitioner,” he said.

He also said that the mention of De Lima “taking advantage of public office” as cited in the Information against her highlighted the applicability of Section 28 of RA 9165, which deals with the criminal liability of government officials.

“By their being government officials and employees, their liability is aggravated and would necessitate the imposition ofthe maximum penalty, pursuant to Section 28,” he said.

Noel Tijam 

SC Justice Noel Tijam said De Lima failed to show that the judge committed grave abuse of discretion by failing to act on her motion to quash pending before the court when the arrest warrant was issued.

“What is peculiar with the instant case is that it imputes grave abuse of discretion to an act of omission. Petitioner ultimately questions respondent judge’s failure to act on her motion to quash,” he wrote.

But he pointed out that without an actual denial by the RTC, the basis for De Lima’s petition and reliefs sought were “conjectures.”

He also said that the warrant was validly issued, contrary to De Lima’s claim that the judge did not make a personal determination of probable cause.

“Contrary to petitioner’s argument, the wordings of the February 27, 2017, Order reveal that respondent judge reviewed the available evidence and evaluated whether the same corresponds to the allegations in the Information,” Tijam wrote.

He added: “On this note, I agree with Justice Velasco that the respondent judge can be said to have even exceeded what is required of her under our procedural rules. In reviewing the evidence presented during the preliminary investigation and the Information, the respondent judge made a de novo determination of whether probable cause exists to charge petitioner in court.” – Rappler.com