February will be a month to watch in the criminal cases against Senator Leila de Lima. Not only will it be the fourth-year anniversary of De Lima’s incarceration on February 24, the Regional Trial Court of Muntinlupa handling 2 of the 3 drug cases against the senator made a self-imposed deadline to rule on De Lima’s Demurrer to Evidence in the two cases on or before February 17.

By then, we will know whether the two drug cases will be dismissed, or drawn out to probably another year of trial with the presentation of defense evidence. A demurrer to evidence is basically a motion to dismiss filed by the defense after the prosecution has rested its case, on the ground that there is no need for the accused to rebut the prosecution’s evidence because the state failed to prove its case against the accused beyond reasonable doubt.

The cases against De Lima

The more open and shut case among the two cases against De Lima is the case where De Lima, then already resigned from the DOJ, allegedly conspired with a certain Jad Dera to raise election campaign funds through drug trading using Bilibid drug lords. As it turns out, according to De Lima’s demurrer, the case actually involved a kidnap-for-ransom affair perpetrated by “ninja cops” as facilitated by Jad Dera who, according to his own affidavit, was an undercover police asset who pretended to be a relative or employee of De Lima in order to get into the good graces of Bilibid bosses Peter Co and Hans Tan. The prosecution never proved that Dera and De Lima actually knew each other, much less that any professional or personal relationship existed between them.

In the De Lima-Dera case, prosecution witnesses Peter Co and his niece Sally Serrano testified that the money delivered to Dera was ransom paid to “ninja cops” who kidnapped Serrano. The prosecution accusation is that the money came from Peter Co’s drug trading. Serrano and Co categorically testified that it was borrowed from a Chinese gambling loan shark. Co also categorically testified that he never engaged in drug trading, so the money delivered to Dera could not have come from drugs. It must be remembered that both Peter Co and Sally Serrano are prosecution, not defense, witnesses. The DOJ is therefore bound by their testimonies.

No one proved that any of the money went to De Lima. All AMLC witnesses presented by the DOJ were categorical and quite emphatic on this point. Not only was there no money trail between Co and De Lima, or between Dera and De Lima, there was no cause whatsoever for the AMLC to put De Lima’s bank transactions under investigation. This is basically an exoneration as good as any other.

The other case involving De Lima and Ronnie Dayan is more complicated, but nevertheless equally demolished in De Lima’s demurrer. The accusation here is that then-BuCor OIC Rafael Ragos personally delivered P10 million on two occasions to De Lima and Dayan as her share in the Bilibid drug trade. Instead, what the prosecution was able to prove, at best, was that the money came from various sources, none of them proven to be from drug trading, in exchange for prison favors for inmates. At the most, this is a case for bribery, not drugs, even if bribery on the part of De Lima is proven beyond reasonable doubt, which was not. But even this prosecution narrative was greatly undermined by the lack of connection between De Lima and the Bilibid inmates, because what was clearly proven by the DOJ’s own witnesses was that it was Ragos himself who admitted and was proven to have extorted from the Bilibid inmates in exchange for various favors.

Where does the evidence lead?

Peter Co himself testified that his contribution to the P10-million bribe was in exchange for his and Hans Tan’s release from the bartolina after they were sent there by Ragos for their role in the grenade attack on another inmate. Both were immediately returned to their luxury kubols after the delivery of the P10 million to Ragos. What therefore happened in this case is that in targeting De Lima, the DOJ rewarded Ragos by allowing him to pin all the blame from his Bilibid extortion operations on De Lima. Even then-CIDG chief Benjamin Magalong testified that Ragos was “dirty,” and thus requested De Lima that he be excluded from the high-level meetings that planned the December 15, 2014 Bilibid raid.

The common thread in both cases is the complete absence of the supposedly traded drugs, with all the Bilibid inmates refusing to admit that the supposed money delivered to either Dera or Ragos came from drug trading. Because of this, the DOJ spent an inordinate amount of time proving that Peter Co was a drug lord and was engaged in drug trading, even when he was not an accused (due to the DOJ’s own decision not to include him in the indictment) and even when the DOJ was not even allowed to impeach their own witness. 

The case thus turned into a case of People v. Peter Co, as it should have been from the very beginning, if only the DOJ indicted the actual participants in the crime in accordance with their very own narrative, viz., Peter Co and Ragos. But of course, Duterte’s and Aguirre’s target was De Lima, not Ragos, or not even any of the supposed Bilibid drug lords who supposedly were the ones themselves who actually traded the illegal drugs. No. These cases were about singling out De Lima, regardless of the evidence, regardless of the law, regardless of justice. 

The error of the Supreme Court

With no drugs traded, and no drug lords to trade them, it is highly doubtful how one can reasonably conclude that De Lima conspired to trade illegal drugs. As I have written before, this is the glaring error of the Supreme Court in De Lima v. Guerrero, which upheld the original indictments against De Lima even in the absence of the physical drugs traded, or what we call in law as the corpus delicti. As appropriately observed in De Lima’s demurrer, in the absence of the quantity and identity of the drugs allegedly traded, how can the court even arrive at the correct penalty to be imposed, when according to the Dangerous Drugs Law the penalty is to be based on the nature, identity, and quantity of the drugs involved?

On the other hand, it appears that the DOJ has more than enough evidence to indict and convict Ragos for extortion and bribery, going by his own admissions, the testimony of his NBI and BuCor sidekick, Peter Co, and the other Bilibid inmates. Instead, Ragos was dropped from the original information after executing a belated affidavit pointing to De Lima as the ultimate recipient of the money he personally extorted from the high-profile inmates, and was even given back his erstwhile position of Deputy Director of the NBI. De Lima’s lawyers call Ragos’ court performance a “bargained-for testimony” where, in exchange for exoneration, Ragos was allowed to pin all his sins on De Lima, who therefore becomes the fall guy, the patsy, the scapegoat, because that is what the DOJ wanted. Not justice. But its marsupial hopping kind from down under. 

I have followed the De Lima case these past 4 years. I don’t know when it will happen, perhaps this February, perhaps in another day, but I will be there at the gate of her detention center in Crame to celebrate her freedom. Martin Luther King is right – “the arc of the moral universe is long but it bends toward justice.” – Rappler.com

Tony La Viña teaches law and is former dean of the Ateneo School of Government.