MANILA – The lawyer of Senator De Lima on Tuesday asked the Supreme Court to grant her petition to recall her arrest warrant, saying the government made “remarkable acts of lawlessness” in causing the detention of the former justice chief.

De Lima is currently detained in Camp Crame on illegal drug charges, particularly for allegedly receiving payoffs from drug convicts in the national penitentiary during her stint as justice secretary during the Aquino administration.

De Lima’s lawyer, former Solicitor General Florin Hilbay, centered his argument on the lack of concrete evidence against the senator, the conflicting positions of the Department of Justice (DOJ) and the Office of the Solicitor General (OSG) over which specific provision of the anti-drug law the senator supposedly violated, and the lack of qualification of the witnesses to testify in the case.

“The world is watching; and the judgment of history and our fellow citizens is a Damocles Sword that hangs over all of us,” Hilbay told the high court during the oral arguments on De Lima’s case.

De Lima’s detention has been branded as “political persecution” by her camp and international human rights organizations monitoring the situation in the Philippines.

The senator is one of the high-profile critics of the government’s war on drugs, and she believes that her staunch opposition to this, as well her past tiff with President Rodrigo Duterte because of her investigation of the Davao Death Squad, are the reasons for her arrest and detention.

NO CONCRETE EVIDENCE

In his opening speech, Hilbay noted that the Department of Justice, which charged De Lima for violating Section 5 of the Dangerous Drugs Act, failed to produce any concrete evidence that would prove the senator’s guilt.

Section 5 of the law lists as prohibited acts the “sale, trading, administration, dispensation, delivery, distribution and transportation of dangerous drugs and/or controlled precursors and essential chemicals.”

“The most egregious aspect of the accusation is the fact there is no corpus delicti (body of crime). She is being charged with a crime for which no evidence exists. It is essential that the transaction be proven to have actually taken place. The corpus delicti in cases involving dangerous drugs is the presentation of a dangerous drug itself,” Hilbay said.

“What the DOJ wants to do in this case is equivalent to prosecuting a person for murder without evidence of a killing or for theft without any evidence of anything having been stolen.”

Hilbay said, the court should dismiss the case and cause De Lima’s release because “a casual browse of jurisprudence on drug cases will show how obsessive-compulsive the court is with respect to the identity of drugs, its weight, quality and chain of custody.”

CONFLICTING DOJ, OSG POSITIONS

Hilbay also pointed out that the DOJ and the Office of the Solicitor General, led by Jose Calida, have conflicting positions over which specific charge under the Dangerous Drugs Act should be filed against De Lima.

Hilbay said, while the DOJ sought to charge De Lima for violation of Section 5 of the law, the OSG’s position stated that the senator should be charged under Section 26 b, or the “attempt or conspiracy” to trade illegal drugs.

Hilbay suspects that the OSG's move was prompted by the lack of concrete evidence against De Lima.

In filing the cases against the senator before the Muntinlupa Regional Trial Court, the DOJ had to rely on the testimonies of New Bilibid Prison inmates who said they gave money to the then-justice secretary in exchange for protection and certain perks.

Hilbay said, the OSG may be seeking to address this loophole “by attempting to transform the accusation from drug trafficking to mere conspiracy to engage in drug trafficking.”

He cited the OSG’s position paper which stated that if De Lima is to be charged under Section 26 (b) of the law, “the identity and quality of drugs eventually sold cannot be treated as an essential element of the crime.”

“This stunning discrepancy in the understanding of DOJ and OSG violates the petitioner’s constitutional right to be informed of the nature and cause of accusation against her and palpably indicates the government does not really have a case,” Hilbay said.

“In essence, what OSG is now saying is that Judge [Juanita] Guerrero (of the Muntinlupa RTC Branch 204) found probable cause and issued a warrant of arrest versus the petitioner for the wrong case. For this reason alone and without further arguments, the case against petitioner should be immediately dismissed.”

WITNESSES NOT QUALIFIED

Aside from arguing that there is no concrete evidence against the senator, De Lima said the witnesses against her are not qualified to testify both under the law and rules of court.

The main witnesses against De Lima are comprised of NBP inmates convicted of illegal drug charges and other crimes.

De Lima has said the testimonies of the inmates could have been made under duress or in exchange of certain favors.

“Let me just point out that these model citizens of the republic are not even qualified to be state witnesses under Rule 119, Section 17 and Section 33 of RA 9165 (Dangerous Drugs Act) for the simple reason that they have been convicted of crimes involving moral turpitude, an express disqualification under the rules of court and Dangerous Drugs Act,” Hilbay said.

‘RELEASE DE LIMA’

Hilbay also noted that going by the charges by the DOJ against De Lima, the senator is actually being accused of direct bribery, which is punishable under the Revised Penal Code, and not illegal drug trade.

“On its face, the information doesn’t make out the case for drug trading on the part of petitioner, as defined as transactions involving illegal trafficking of dangerous drugs,” Hilbay said.

“She cannot be charged with drug trading because she is agnostic about the source of the money whether it is drugs or some other legitimate or illegitimate transaction.”

Hilbay said if De Lima is to be charged with the direct bribery, then she is allowed to post bail.

He also noted, the Dangerous Drugs Act separately penalizes coddling or protecting a person who sells or trades dangerous drugs. He said, protecting or coddling a drug trader is a bailable offense.

RTC HAS NO JURISDICTION

Hilbay also questioned the jurisdiction of the Muntinlupa Regional Trial Court (RTC) where the drug charges against De Lima were filed.

He argued, since De Lima was a government official at the time of the supposed commission of the crime, the Office of the Ombudsman is the proper body to investigate the complaints against her and decide whether cases should be elevated before the anti-graft court Sandiganbayan.

He argued, the RTC has no jurisdiction over De Lima’s case, whether the case is for direct bribery or drug trading.

“It is therefore unthinkable how the DOJ filed this case before RTC and how Judge Guererro could have possibly concluded she has jurisdiction and issued a warrant of arrest with inexplicable haste,” Hilbay said.

“The DOJ not only filed a case before a court without jurisdiction but also investigated the matter, in violation of Ombudsman Act, which gives primary jurisdiction of this case to the Ombudsman.”