SC justices grill De Lima counsel on petition

Ina Reformina, ABS-CBN News

Posted at Mar 14 2017 10:06 PM

MANILA (UPDATE) - The camp of detained Senator Leila De Lima may have prematurely elevated her case to the Supreme Court (SC) and failed to avail of the "many remedies" available at the level of the Department of Justice (DOJ) and Muntinlupa Regional Trial Court (RTC) to prevent her arrest on charges of drug trading.

This was raised by at least four magistrates of the Supreme Court (SC) namely, Associate Justices Diosdado Peralta, Lucas Bersamin, Marvic Leonen and Presbitero Velasco, Jr., the justice-in-charge of the case, during Tuesday's start of oral arguments on De Lima's petition seeking the nullification of the trial court's order for her arrest in connection with her alleged involvement in the New Bilibid Prison (NBP) illegal drug trade.

De Lima was represented by counsel, former Solicitor General Florin Hilbay, who served at the DOJ attached agency during her stint as Justice secretary.

Peralta, a seasoned trial court judge and criminal law expert, pointed out that he saw nothing defective in the criminal information filed before Muntinlupa RTC Executive Judge and Branch 204 Presiding Judge Juanita Guerrero, since the jurisdiction is "properly alleged," there is a proper allegation of the offense, and the alleged offenders were named, among others.

"So, what is wrong with the information? Nothing… You missed out on a lot of remedies for Sen. De Lima," Peralta said, as he stressed that the points being raised by De Lima's camp before the high court are "evidentiary in nature" best threshed out in trial and "should not be taken up to determine the validity of a criminal information."

Among these remedies which De Lima did not avail of, according to the magistrate: 

- filing of counter-affidavit and simultaneously questioning the jurisdiction of the DOJ with the panel of prosecutors during the preliminary investigation into the complaint; 

- once the complaint was resolved, filing a motion for reinvestigation; 

- before indictment, asking the RTC to suspend the proceedings and requiring the panel of prosecutors to conduct reinvestigation; 

- assuming she was already indicted and she was not given the chance to file her countervailing evidence with the DOJ, move for the RTC to order a reinvestigation; 

- as an alternative, file a motion for judicial determination of probable cause, motion for bill of particulars, or a motion to dismiss the case before the RTC on the basis of lack of probable cause.


Peralta also warned De Lima's camp of possible commission of forum shopping, the rule against filing multiple suits before different venues in a bid to obtain the same favorable result.

"There might be forum shopping here… you came up with a motion to quash before the RTC and a petition before us on the same ground. May be a case of forum shopping - different fora with the same prayer.

"The problem, Atty. Hilbay is that we have a rule on forum shopping and the penalties are dismissal of the case and the other one is contempt," Peralta said.


The magistrate also pointed out Section 90, Article XI of Republic Act (RA) No. 9165, also known as the Comprehensive Dangerous Drugs Act, which states that the SC shall designate special courts from existing RTCs "to exclusively try and hear cases" involving violations of the law.

To which Hilbay disagreed, insisting that the provision merely grants the SC the power and authority to designate special drug courts out of existing RTCs but does not confer upon the RTC the exclusive jurisdiction to try and hear drug cases.

Associate Justice Teresita Leonardo-De Castro also raised the second portion of the provision, which states that "[t]he DOJ shall designate special prosecutors to exclusively handle cases involving violations of [RA 9165]," which could be taken to mean that such cases are not to be tried by the Sandiganbayan because DOJ prosecutors do not handle cases before the anti-graft court.

It is, however, the position of De Lima's camp that the Sandiganbayan charter is clear that it has "exclusive and original jurisdiction" over public officials with salary grade 27 and above. At the time she was justice chief, De Lima had a salary grade of 31.


Velasco raised the issue of hierarchy of courts, considering that De Lima directly sought redress from the SC and not the Court of Appeals (CA), as procedure dictates.

"Tell me, why did the counsel on record file the petition before the high court?" Velasco asked.

"The direct resort to this honorable court is a result of the petitioner's frustration that the allegations on the lack of jurisdiction of the RTC, the DOJ, the disrespect to the Ombudsman have not been heard. A party can go to the SC in cases of palpable lack of jurisdiction; in this case, your honor, the DOJ does not have jurisdiction, the RTC does not have jurisdiction," Hilbay replied.

Velasco stressed that De Lima's petition with the SC is "premature" since the RTC has yet to rule on her motion to quash, adding that if the petition was granted, it was as if the high court decided the motion to quash on behalf of the RTC.

Velasco was perplexed why De Lima's camp was now asking the SC to junk the drug case against her when her petition merely asked for nullification of the arrest warrant and for the trial court to resolve her motion to quash.

"So in short, you are now asking the honorable court to order the dismissal of the information without awaiting the resolution of RTC Judge Guerrero on the motion to quash, which is contrary to what you filed," Velasco pointed out.


Leonen, for his part, asked "what is so special about this case" involving De Lima, that the hierarchy of courts and processes of lower courts should be bypassed.

"What makes this case special and very different? We should be even-handed with the law. Even if your name happens to be a big name or a small name, you have to follow the rules.

"We have to be very clear why we are treating this case, especially if the consequences would be different from, say, somebody who was arrested with 0.01 grams of shabu in the streets," Leonen said.

The hearing lasted for more than three hours with Solicitor General Jose Calida, who was present during the proceedings, not being able to present the arguments of respondent Judge Guerrero and police officials and officers who effected the arrest order and now have physical custody of De Lima.

The hearing will resume next Tuesday, March 21, with Hilbay still having the floor for interpellation.