MANILA — The legal counsel of former senator Leila de Lima said Wednesday that the Justice Department can still initiate a withdrawal of the drug cases filed against her and expressed confidence that they have a basis to apply for bail.

"Procedurally, the withdrawal of the drug charges is an executive act. So to our mind, our position is yes, the Department of Justice can still initiate an action to withdraw the charges based on this recent development," Atty. Filibon Tacardon told ANC's Dateline Philippines.

In a decision received by De Lima's camp on Tuesday, the Office of the Ombudsman junked for lack of probable cause the bribery complaints against De Lima and her former bodyguard over an alleged P8 million bribe from self-confessed drug lord Kerwin Espinosa.

• Ombudsman junks bribery raps vs De Lima, Ronnie Dayan

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But Tacardon admitted that the DOJ is "also correct in saying that it will be up to the court to decide on their action."

"My point is, they cannot just say that they cannot do it. They can still do it because it's still within their mandate to ensure that... they can only prosecute those who are really guilty," he said.

"But if they will find that the person they are actually prosecuting is not really guilty, then they still have this mandate to withdraw, that they can withdraw the charges against them and appeal to the court for the approval of their withdrawal. It's not simply a 'no' for DOJ."

When asked if the Ombudsman's dismissal of bribery charges against De Lima affect her two drug cases, DOJ chief Jesus Crispin "Boying" Remulla said "it's up to the courts."

For Tacardon, they have all the bases for the DOJ to withdraw the drug charges, "especially the one in Muntinlupa."

"The recantation of Rafael Ragos, for example, is a very basis for the withdrawal because the criminal complaint against [former] senator De Lima in criminal case no. 165 is hinged on the claim of [former] deputy director Ragos that he delivered money," he said.

Ragos had earlier executed an affidavit belying his previous claims that he personally delivered P5 million to Ronnie Dayan, De Lima’s then-bodyguard, at her residence in Parañaque City in November and December 2012.

Given the developments, Tacardon said that they are now in the process of applying for bail, adding that "we are confident that, based on the testimonies that we have received, we have [the] basis to pursue an application for bail and we will definitely pursue it."

"Her release is inevitable not because of anything but because [former] senator De Lima did not commit the crimes attributed against her."

De Lima, who was a vocal critic of former President Rodrigo Duterte and his drug war, has been detained on illegal drug charges since February 2017. One of the charges has been junked while two others are still pending.

De Lima said the charges are politically motivated.

— with a report from Mike Navallo, ABS-CBN News