MANILA, Philippines – Supreme Court (SC) Senior Associate Justice Antonio Carpio slammed the continued detention of Senator Leila de Lima as “one of the grossest injustices” in recent memory, as an SC ruling effectively kept her in jail.

SC Associate Justice Marvic Leonen separately described De Lima’s case as “quintessentially the use of the strong arm of the law to silence dissent.”

Carpio and Leonen made these remarks in their dissenting opinions on the SC ruling issued on Tuesday, October 10.

The SC, voting 9-6, ruled that the Muntinlupa Regional Trial Court (RTC), not anti-graft court Sandiganbayan, has jurisdiction over De Lima’s cases.

In his 39-page dissenting opinion on the SC’s majority ruling, Carpio said, “To allow the continued detention of petitioner under this Information is one of the grossest injustices ever perpetrated in recent memory in full view of the Filipino nation and the entire world.”

Carpio, Chief Justice Maria Lourdes Sereno, and Associate Justices Estela Perlas-Bernabe, Francis Jardeleza, Marvic Leonen, and Benjamin Caguioa voted to grant De Lima’s petition to nullify the arrest warrant issued against her by RTC Judge Juanita Guerrero, citing lack of jurisdiction.

They were outvoted by 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 – all appointees of former president Gloria Macapagal Arroyo and President Rodrigo Duterte.

Carpio is an Arroyo appointee, while the 5 others who dissented are all appointees of former president Benigno Aquino III.

Carpio said the drug charges filed against De Lima by the Department of Justice (DOJ) were “blatantly pure invention.”

“This Court, the last bulwark of democracy and liberty in the land, should never countenance such a fake charge,” he said.  (READ: De Lima to appeal SC decision on drug cases)

Special case

In his separate dissenting opinion, Leonen said De Lima is a special case that should have prompted the SC to consider exceptional circumstances.

Leonen said there are indicators that it “may be a case of persecution rather than prosecution.”

De Lima is the staunchest critic of Duterte, his nemesis way back in 2009 when De Lima was still Commission on Human Rights chairperson and Duterte was mayor of Davao City.

It was De Lima who initiated an investigation into the alleged Davao Death Squad, a case she pursued all the way up to the Senate when Duterte was elected president until she was sent to jail.

“It is reasonable to suspect that her case is quintessentially the use of the strong arm of the law to silence dissent,” Leonen said.

Leonen added that the motives in this case “are not disguised.” He said the SC should stand as an example “of courage and clarity” in order to empower people “to find their voice even in the most hostile of environments.”

“It is this that makes this case special: if we fail to call this case what it truly is, then it will not only be the petitioner who will be in chains. None of us will be able to claim to be genuinely free,” Leonen said.

Missing elements

Velasco, the ponente of the majority ruling, said it was enough to accuse De Lima of being a co-conspirator of the drug trade. The specifics would just follow during trial, he said.

Velasco also differentiated the sale and trade of drugs, although Carpio pointed out that De Lima is accused of violating Section 5 of the Comprehensive Dangerous Drugs Act which lumps together the “sale, trading, administration, dispensation, delivery, distribution and transportation of illegal drugs.”

Because they are all in one section of the law, Carpio said it is necessary to present all elements of that provision.

“Indisputably, the Information does not identify the buyer, the seller, the object, or the consideration of the illegal sale or trade. The Information also does not make any allegation of delivery of the drugs illegally sold or traded nor of their payment. The Information does not state the kind and quantity of the drugs subject of the illegal sale or trade,” he said.

In Velasco’s ruling, he said trading is defined under Section 3(jj) of the law as the use of an electronic device to broker drug transactions. Velasco said that was established in the DOJ’s charges against De Lima.

But Carpio said: “The present Information against petitioner alleges only the ‘use of electronic devices’ but does not allege any of the essential elements of ‘illegal sale’ under Section 5. This Court cannot allow a prosecution for ‘illegal trade’ of drugs where none, repeat absolutely none, of the essential elements of ‘illegal sale’ of drugs is present.”

To drive home his point, he cited 12 of Velasco’s past ponencias which require all elements, including the latter’s decision from October 2010 which reads: “What is material is proof that the transaction or sale actually took place, coupled with the presentation in court of the prohibited or regulated drug or the corpus delicti as evidence.”

Corpus delicti is the physical proof of a crime, or in murder, the dead body.

Carpio said the missing elements violate De Lima’s right to be properly informed of the nature of the accusation against her.

And again, Carpio cited Velasco: “As the ponente himself correctly stated in Lim v. People, the accused has the ‘constitutional right to be informed of the nature and cause of the accusation against him.'”

Jurisdiction

Velasco ruled in his ponencia that under the Comprehensive Dangerous Drugs Act, the trial courts were named as having the exclusive jurisdiction to try drug cases.

But Carpio sided with the De Lima camp in saying that the information against her is actually a crime of bribery and not of involvement in the drug trade. (READ: EXPLAINER: Issues on jurisdiction in De Lima cases)

Carpio said that based on the narration of the drug convicts, who are the basis of the charges, the amount involved in the crime exceeds P1 million.

Carpio then cited a provision in Republic Act (RA) 10660 or the Sandiganbayan Law which states: “The Regional Trial Court shall have exclusive original jurisdiction where the information: (a) does not allege any damage to the government or any bribery; or (b) alleges damage to the government or bribery arising from the same or closely related transactions or acts in an amount not exceeding one million pesos (P1,000,000.00).”

“This amendment in RA 10660 now applies to the case of petitioner, taking her case out of the jurisdiction of the RTC since in the present Information there is an allegation of bribery exceeding P1,000,000 and petitioner had salary grade 31 as then Secretary of Justice,” Carpio said.

He added that the DOJ’s charges against De Lima “would be laughable if not for the non-bailable detention of the accused.”

The SC ruling against De Lima shut the doors on the senator’s bid for temporary freedom. – Rappler.com