FACT CHECK: Did Calida flip-flop on Napoles illegal detention case?

MANILA, Philippines – The Office of the Solicitor General (OSG) filed in January this year a controversial manifestation before the court, saying Janet Lim Napoles is not guilty of serious illegal detention, but documents obtained by Rappler show that the OSG filed a court brief 6 months earlier saying Napoles was indeed guilty of the crime.

In a "manifestation in lieu of rejoinder" submitted to the Court of Appeals on January 11, 2017, the OSG recommended the acquittal of Napoles for the crime of serious illegal detention filed by her supposed cousin, employee, and whistleblower Benhur Luy. The Makati Regional Trial Court (RTC) Branch 150 convicted Napoles in 2015 and sentenced her to at least 30 years in jail.

Solicitor General Jose Calida defended this latest manifestation and said it was part of his job as the "16th justice of the Supreme Court" to correct injustice when he sees one.

A Supreme Court ruling allows the Solicitor General to take a position adverse to the government. (READ: FACT CHECK: Where should the Solicitor General stand in Napoles' case?)

However, on August 8, 2016, or 6 months earlier, the OSG filed an appellee's brief before the CA, saying that the Makati court was right in convicting Napoles.

By that time Rodrigo Duterte had won as president. It was on May 20 that the choice of Calida as solicitor-general was also announced by the new administration.

Earlier brief 

SolGen's brief on the Napoles detention case filed August 2016 by Lian Buan on Scribd

"The prosecution has established all the elements of the crime of serious illegal detention," the OSG said in its August 2016 brief.

"Truly, Benhur Luy was incapacitated by fear. Throughout his detention, he was repeatedly threatened with bodily harm upon him and/or his family, so much so that he blindly believed and followed what he was told by appellant (Napoles) and accused Reynald Lim," the brief said.

"Truly, the evidence convincingly shows that Benhur Luy was being detained against his will from December 19, 2012 to March 22, 2013 for the purpose of keeping him from divulging (Napoles') illegal deals and transactions, and that (Napoles) had not just knowledge of the crime, but she was the one who orchestrated it," the brief also said.

Six months later, the OSG did an about-face in a manifestation it filed, in essence, parroting the arguments Napoles made during her court hearings.

"After examining anew the evidence presented by both the prosecution and defense, the OSG finds that the evidence presented does not support beyond reasonable doubt that the appellant committed the crime of serious illegal detention," the January 2017 manifestation reads.

The August 2016 and January 2017 documents had Calida's name on them although his signature does not appear on both.

Not a flip-flop

Solicitor General's manifestation filed on January 11, 2017 by Lian Buan on Scribd

Calida, during a news conference on Monday, February 27, clarified he did not flip-flop.

According to Calida, he had nothing to do with the August brief. He said it did not go through him for final checking before it was submitted to the court.

“At that time there was still this old rule that in cases filed before the CA, if it is initiatory pleading, then it must pass through me. If it is an affirmatory pleading but the sentence – we will reccommend  for the modification of sentence, it will go through me. In other matters, it will not. The appellee brief is not an initiatory pleading and not an affirmatory pleading where we will modify the sentence, that’s why it did not go through me, I did not know it at that time," Calida explained.

The former justice undersecretary said he changed this internal rule last September, so he was able to check when Napoles filed a response to the OSG's appellee's brief.

"They had to give the document to me for my comment regarding the replied pleading of Napoles, that triggered the review of this case," Calida said.

Rappler reached out to Calida's predecessor, former Solicitor General Florin Hilbay, to ask if the August 8, 2016 brief was done during his time and carried over to Calida's term.

In a text message, Hilbay simply said: "I was co-terminus with President Aquino. I left office on June 30."

Special interest?

Calida maintained he did not give special interest to the Napoles case. He said he is currently reviewing a multitude of cases to check if there was miscarriage of justice committed against other individuals.

Raji Mendoza, lawyer for Benhur Luy, told Rappler that despite the OSG siding with Napoles on the illegal detention case, they are still confident the conviction will hold.

"Malakas ang kaso, 2 taon 'yang nilitis, lahat ng ni-raise nila (OSG at Napoles) nasagot na 'yan noong hearing. In case there is political weight into it, we hope the justices will maintain the integrity of the judiciary. Kung ano man ang nakikita ni Calida, siya lang ang nakakakita 'nun," Mendoza said.

(We have a strong case, it was tried for two years, everything that the OSG and Napoles raised have already been answered in the RTC hearings. In case there is political weight into it, we hope the justices will maintain the integrity of the judiciary. Whatever Calida sees in the Napoles case, he's the only one seeing it.)

It is not just Calida, however, as President Rodrigo Duterte said he supports his solicitor general in the recommendation to acquit Napoles in her illegal detention case. How that will play out remains to be seen. – Rappler.com

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 lian.buan@rappler.com or tweet @lianbuan.

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