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A. Introduction to Bill of Rights  Aquino, Jr. v. Enrile, 59 SCRA 183

Enrile (then Minister of National Defense), pursuant to the order of Marcos issued and ordered the arrest of a number of individuals including Benigno Aquino Jr even without any charge against them. Hence, Aquino and some others filed for habeas corpus against Juan Ponce Enrile. Enrile answered that the arrest is valid pursuant to Marcos’ declaration of Martial Law. ISSUE: Whether or not Aquino’s detention is legal in accordance to the declaration of Martial Law. HELD: The Constitution provides that in case of invasion, insurrection or rebellion, or imminent danger against the state, when public safety requires it, the President may suspend the privilege of the writ of habeas corpus or place the Philippines or any part therein under Martial Law. In the case at bar, the SC ruled that the state of rebellion plaguing the country has not yet disappeared, therefore, there is a clear and imminent danger against the state. The arrest is then a valid exercise pursuant to the President’s order.  Enrile v. Salazar G.R. 92163, June 5, 1990 Facts: In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile was arrested by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation on the strength of a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in Criminal Case No. 9010941. The warrant had issued on an information signed and earlier that day filed by a panel of prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none having been recommended in the information and none fixed in the arrest warrant. The following morning, February 28, 1990, he was brought to Camp Tomas Karingal in Quezon City where he was given over to the custody of the Superintendent of the Northern Police District, Brig. Gen. Edgardo Dula Torres. On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas corpus herein (which was followed by a supplemental petition filed on March 2, 1990), alleging that he was deprived of his constitutional rights. Issue: (a) Whether the petitioner has committed complex crimes (delito compleio) arising from an offense being a necessary means for committing another, which is referred to in the second clause of Article 48 of the Revised Penal Code? Held: There is one other reason and a fundamental one at that why Article 48 of the Penal Code cannot be applied in the case at bar.

If murder were not complexed with rebellion, and the two crimes were punished separately (assuming that this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying circumstances present, but never exceeding 12 years of prision mayor, and (2) for the crime of murder, reclusion temporal in its maximum period to death, depending upon the modifying circumstances present. In other words, in the absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article 48 said penalty would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said provision, if construed in conformity with the theory of the prosecution, would be unfavorable to the movant. The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books, while technically correct so far as the Court has ruled that rebellion may not be complexed with other offenses committed on the occasion thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: simple rebellion. Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation of Hernandez as applicable to petitioner's case, and of the logical and necessary corollary that the information against him should be considered as charging only the crime of simple rebellion, which is bailable before conviction, that must now be accepted as a correct proposition. But the question remains: Given the facts from which this case arose, was a petition for habeas corpus in this Court the appropriate vehicle for asserting a right to bail or vindicating its denial? The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals if appropriate relief was also available there. The Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the questioned information filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read as charging simple rebellion only, hence said petitioners are entitled to bail, before final conviction, as a matter of right. The Court's earlier grant of bail to petitioners being merely provisional in character, the proceedings in both cases are ordered remanded to the respondent Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by said respondent for any of the petitioners, the corresponding bail bond flied with this Court shall become functus oficio. No pronouncement as to costs.

 Enrile vs. Sandiganbayan GR 213847 (August 18, 2015)

Facts: Year 2014, Sen. Enrile was charged with plunder before the Sandiganbayan for their alleged involvement in the diversion and misuse of appropriation under the PDAF. When his warrant was issued, Sen. Enrile voluntarily surrendered to the CIDG and was later confined and detained at the PNP General Hospital, he then filed a motion to fix bail where he argued that: 1.He should be allowed to post bail as a matter of right; 2.Although charged with plunder his penalty would only be reclusion temporal considering that there are two mitigating circumstances, his voluntary surrender and that he is already at the age of 90;

3.That he is not a flight risk and his medical condition must be seriously considered. The Sandiganbayan however, denied his motion on the grounds that: 1.He is charged with a capital offense; 2.That it is premature for the Court to fix the amount of his bail because the prosecution have not yet presented its evidences. Sen. Enrile then filed a certiorari before the Supreme Court. Issue: Whether or not the Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction for denying his motion to fix bail? Ruling: Yes, the Supreme Court held that the Sandiganbayan arbitrarily ignored the objective of bail and unwarrantedly disregarded Sen. Enrile’s fragile health and advanced age. Bail is a matter right and is safeguarded by the constitution, its purpose is to ensure the personal appearance of the accused during trial or whenever the court requires and at the same time recognizing the guarantee of due process which is the presumption of his innocence until proven guilty. The Supreme Court further explained that Bail for the provisional liberty of the accused, regardless of the crime charged should be allowed independently of the merits charged, provided his continued incarceration is injurious to his health and endanger his life. Hence, the Sandiganbayan failed to observe that if Sen. Enrile be granted the right to bail it will enable him to have his medical condition be properly addressed and attended, which will then enable him to attend trial therefore achieving the true purpose of bail.  Ilagan vs. Enrile, G.R. No. 70748 October 21, 1985  Brocka et. al. vs. Enrile G.R. No. 69863-65 (December 10, 1990)

The Ilagan and Brocka Cases

This is the second of three columns on Supreme Court decisions that have Senator Juan Ponce Enrile as a protagonist, either as a respondent accused of violating the human rights of citizens or as a petitioner invoking constitutional rights against the state. In the cases I discuss in this column, Ilagan vs. Enrile and Brocka vs. Enrile, as he was in the Aquino and Padilla cases discussed in the first column of this series, the senator is the principal respondent as defense secretary and minister of defense of the Marcos dictatorship. In 1985, Attorney Laurente C. Ilagan was arrested in Davao City by elements of the PC-INP and detained at Camp Catitipan on the basis of a Mission Order allegedly issued by the Ministry of National Defense. Subsequently, two other lawyers were arrested and detained on the basis of a Mission Order. A petition for habeas corpus was filed by and on behalf of the three detained attorneys on the ground that their arrests were illegal and violative of the Constitution, since arrests cannot be made on the basis of Mission Orders and that there appears to be a military campaign to harass lawyers involved in national security cases. The petition also contended that their detention was improper arrest, and that no preliminary investigation has been conducted. In this case, the government argued that the detained attorneys were arrested on the basis of a Preventive Detention Action (PDA) issued by the President on Jan. 25, 1985; that the Writ of habeas corpus is suspended as to them by virtue of Proclamation No. 2045-A. Subsequently, they further argued that the petition for habeas corpus had been rendered moot and academic by virtue of the filing of an Information against them for Rebellion, a capital offense, before the Regional Trial Court of Davao City and the issuance of a Warrant of Arrest against the three detainees. In a unanimous decision, the Court, through Justice Ameurfina Melencio-Herrera, stated that the remedy is not a petition for a Writ of Habeas Corpus but a Motion before the trial court to quash the Warrant of Arrest, and/or the Information on grounds provided by the Rules or to ask for an investigation/reinvestigation of the case. The Court further stated that habeas corpus would not lie after the Warrant of Commitment was issued by the Court on the basis of the Information filed against the accused. As a result, the petition for Habeas Corpus was dismissed for having become moot and academic. The Court pronounced that the three detainees were now detained by virtue of a Warrant of Arrest issued by the Regional Trial Court of Davao City in relation to the criminal case for Rebellion filed against them before said court. The Ilagan doctrine has been roundly criticized for being anti-democratic. Unfortunately, it is still routinely invoked by prosecutors to justify detention of accused even when the original arrests were illegal. A few years ago, in the celebrated case involving 43 health workers illegally arrested in

Morong, Rizal, the Court of Appeals justified the workers’ continuing detention citing this unfortunate precedent. The Ilagan decision, rendered in 1985, was one of the last decisions of the Supreme Court before the Edsa revolution. The Brocka vs. Enrile case, decided in 1990 by a different Supreme Court, illustrates the change of regime and what a difference democracy makes.

The case started on Jan. 28, 1985 when movie director Lino Brocka and theater director Behn Cervantes, both icons in their artistic fields, were arrested along with their companions (this included Howie Severino of GMA-7, then a teacher at the Ateneo de Manila High School), were arrested by elements of the Northern Police District following the forcible and violent dispersal of a demonstration held in sympathy with the jeepney strike called by the Alliance of Concerned Transport Organization (ACTO). Thereafter, they were charged with Illegal Assembly before the RTC-Quezon City. Without prior notice to their counsel, Brocka, et al. were subsequently charged with Inciting to Sedition. In their petition for habeas corpus, Brocka, et al. as petitioners, contended that respondents’ manifest bad faith and/or harassment are sufficient bases for enjoining their criminal prosecution, aside from the fact that the second offense of inciting to sedition is illegal, since it is premised on one and the same act of attending and participating in the ACTO jeepney strike. They maintain that while there may have been a complex crime from a single act (Art. 48, RTC), the law does not allow the splitting of a single act into two offenses and filing two informations therefor, further, that they will be placed in double jeopardy. The main issue raised before the Supreme Court was the legality of enjoining the criminal prosecution of a case. And in a unanimous decision, the Court granted the petition and enjoined the criminal prosecution of Brocka et al. for the second offense of inciting to sedition. According to the Court, Brocka, et al. have clearly shown the circumstances to show that the criminal proceedings had become a case of persecution, having been undertaken by state officials in bad faith. The Court added that the hasty filing of the second offense, premised on a spurious and inoperational PDA, certainly betrayed the respondent’s bad faith and malicious intent to pursue criminal charges against Brocka, et al. It further noted—“. . . the tenacious invocation of a spurious and inoperational PDA and the sham and hasty preliminary investigation were clear signals that the prosecutors intended to keep Brocka, et al. in detention until the second offense of “Inciting to Sedition” could be facilitated and justified without need of issuing a warrant of arrest anew.” I have a personal story about the Brocka case. One of those arrested with the film director was Al Alegre, a close friend and house mate at the “House of Being,” an apartment in Katipunan Avenue that

several of us philosophy teachers, students and alumni shared in the early 1980s. Because Al was also detained, I attended the bail hearings in that case and was able to witness two great women lawyers— Judge Miriam Defensor Santiago and defense counsel Haydee Yorac, both also UP Law professors at that time—in action. That experience inspired me to take up law and to become a human rights lawyer. In the next column, I will summarize two cases where, this time, we see a twist: Minister Enrile, no longer the martial law administrator, now invokes constitutional rights that were denied those he had custody of during the Marcos years. Enrile vs. Salazar and Enrile vs. Sandiganbayan are the names of those cases and the lessons they impart says a lot about rule of law, or lack of it, in the Philippines.  Ocampo et al. vs. Enriquez, G.R. Nos. 225973, November 2016 FACTS: Public respondent Secretary of National Defense Delfin N. Lorenzana issued a Memorandum to the public respondent Chief of Staff of the AFP, General Ricardo R. Visaya, regarding the interment of Marcos at the Libingan Ng Mga Bayani (LNMB) in reference to the Verbal Order of President Duterte. Respondent AFP Rear Admiral Ernesto C. Enriquez issued directives to the Philippine Army (PA) Commanding General for the Funeral Honors and Service to former President Marcos. Dissatisfied with the said issuance, the following were filed by petitioners: 1. Petition for Certiorari and Prohibition filed by Saturnino Ocampo and several others, in their capacities as human rights advocates or human rights violations victims as defined under Section 3 (c) of Republic Act (R.A.) No. 10368 (Human Rights Victims Reparation and Recognition Act of 2013). 2. Petition for Certiorari-in-Intervention filed by Rene A.V. Saguisag, Sr. and his son, as members of the Bar and human rights lawyers, and his grandchild. 3. Petition for Prohibition filed by Representative Edcel C. Lagman, in his personal capacity, as member of the House of Representatives and as Honorary Chairperson of Families of Victims of Involuntary Disappearance (FIND), a duly-registered corporation and organization of victims and families of enforced disappearance, mostly during the martial law regime of the former President Marcos, and several others, in their official capacities as duly-elected Congressmen of the House of Representatives of the Philippines. 4. Petition for Prohibition filed by Loretta Ann Pargas-Rosales, former Chairperson of the Commission on Human Rights, and several others, suing as victims of State-sanctioned human rights violations during the martial law regime of Marcos. 5. Petition for Mandamus and Prohibition filed by Heherson T. Alvarez, former Senator of the Republic of the Philippines, who fought to oust the dictatorship of Marcos, and several others, as concerned Filipino citizens and taxpayers. 6. Petition for Certiorari and Prohibition filed by Zaira Patricia B. Baniaga and several others, as concerned Filipino citizens and taxpayers.

7. Petition for Certiorari and Prohibition filed by Algamar A. Latiph, former Chairperson of the Regional Human Rights Commission, Autonomous Region in Muslim Mindanao, by himself and on behalf of the Moro who are victims of human rights during the martial law regime of Marcos. 8. Petition for Certiorari and Prohibition filed by Leila M. De Lima as member of the Senate of the Republic of the Philippines, public official and concerned citizen.

ISSUES: 1. Whether President Duterte’s determination to have the remains of Marcos interred at the LNMB poses a justiciable controversy. 2. Whether petitioners have locus standi to file the instant petitions. 3. Whether petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts. 4. Whether the Issuance and implementation of the assailed memorandum and directive violate the Constitution, domestic and international laws. RULING: Justiciable controversy It is well settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the Court unless the following requisites for judicial inquiry are present: (a) there must be an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the very lis mota of the case. In this case, the absence of the first two requisites, which are the most essential, renders the discussion of the last two superfluous. An “actual case or controversy” is one which involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. Moreover, the limitation on the power of judicial review to actual cases and controversies carries the assurance that the courts will not intrude into areas committed to the other branches of government. Those areas pertain to questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government.cralawred As they are concerned with questions of policy and issues dependent upon the wisdom, not legality of a particular measure, political questions used to be beyond the ambit of judicial review.

The Court agrees with the OSG that President Duterte’s decision to have the remains of Marcos interred at the LNMB involves a political question that is not a justiciable controversy. In the exercise of his powers under the Constitution and E.O. No. 292 (Administrative Code of 1987) to allow the interment of Marcos at the LNMB, which is a land of the public domain devoted for national military cemetery and military shrine purposes, President Duterte decided a question of policy based on his wisdom that it shall promote national healing and forgiveness. Locus standi Locus standi, a right of appearance in a court of justice on a given question, requires that a party alleges such personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends for illumination of difficult constitutional questions. Unless a person has sustained or is in imminent danger of sustaining an injury as a result of an act complained of, such proper party has no standing. Petitioners, who filed their respective petitions for certiorari, prohibition and mandamus, in their capacities as citizens, human rights violations victims, legislators, members of the Bar and taxpayers, have no legal standing to file such petitions because they failed to show that they have suffered or will suffer direct and personal injury as a result of the interment of Marcos at the LNMB. Taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law. In this case, what is essentially being assailed is the wisdom behind the decision of the President to proceed with the interment of Marcos at the LNMB. As taxpayers, petitioners merely claim illegal disbursement of public funds, without showing that Marcos is disqualified to be interred at the LNMB by either express or implied provision of the Constitution, the laws or jurisprudence. As concerned citizens, petitioners are also required to substantiate that the issues raised are of transcendental importance, of overreaching significance to society, or of paramount public interest. Exhaustion of Administrative Remedies Under the doctrine of exhaustion of administrative remedies, before a party is allowed to seek the intervention of the court, one should have availed first of all the means of administrative processes available. If resort to a remedy within the administrative machinery can still be made by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the court’s judicial power can be sought. For reasons of comity and convenience, courts of justice shy away from a dispute until the system of administrative redress has been completed and complied with, so as to give the administrative agency concerned every opportunity to correct its error and dispose of the case. While there are exceptions to the doctrine of exhaustion of administrative remedies, petitioners failed to prove the presence of any of those exceptions.

Hierarchy of Courts In the same vein, while direct resort to the Court through petitions for the extraordinary writs of certiorari, prohibition and mandamus are allowed under exceptional cases, which are lacking in this case, petitioners cannot simply brush aside the doctrine of hierarchy of courts that requires such petitions to be filed first with the proper RTC. The RTC is not just a trier of facts, but can also resolve questions of law in the exercise of its original and concurrent jurisdiction over petitions for certiorari, prohibition and mandamus, and has the power to issue restraining order and injunction when proven necessary. Constitutionality The President’s decision to bury Marcos at the LNMB is in accordance with the Constitution, the law or jurisprudence. Petitioners argue that the burial of Marcos at the LNMB should not be allowed because it has the effect of not just rewriting history as to the Filipino people’s act of revolting against an authoritarian ruler but also condoning the abuses committed during the Martial Law, thereby violating the letter and spirit of the 1987 Constitution, which is a “post-dictatorship charter” and a “human rights constitution.” For them, the ratification of the Constitution serves as a clear condemnation of Marcos’ alleged “heroism.” To support their case, petitioners invoke Sections 2, 11, 13, 23, 26, 27 and 28 of Article II, Sec. 17 of Art. VII, Sec. 3(2) of Art. XIV, Sec. 1 of Art. XI, and Sec. 26 of Art. XVII of the Constitution. There is no merit to the contention. As the OSG logically reasoned out, while the Constitution is a product of our collective history as a people, its entirety should not be interpreted as providing guiding principles to just about anything remotely related to the Martial Law period such as the proposed Marcos burial at the LNMB. Tañada v. Angara already ruled that the provisions in Article II of the Constitution are not selfexecuting. Thus:

By its very title, Article II of the Constitution is a “declaration of principles and state policies.” The counterpart of this article in the 1935 Constitution is called the “basic political creed of the nation” by Dean Vicente Sinco. These principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato, the principles and state policies enumerated in Article II x x x are not “self-executing provisions, the disregard of which can give rise to a cause of action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for legislation.” xxx The petitions must be dismissed. Note:

DISSENTING OPINION SERENO, C.J.: The 1987 Constitution is the embodiment of the Filipino nations’ enduring values, which this Court must zealously protect. Countless times, this Court has said in so many words that the 1987 Constitution embodies the Filipinos’ enduring values. The protection of those values has consequently become the duty of the Court. That this is the legal standard by which to measure whether it has properly comported itself in its constitutional role has been declared in various fashions by the Court itself. See, for example, how this Court articulated its duty to protect the environment, women, children, labor, the indigenous people, and consistently, those who have been or are in danger of being deprived of their human rights. Note the power that the Constitution vests in the Court to actively promulgate rules for the protection of human rights, and how the Court in turn described this duty when it promulgated the writs of kalikasan, habeas data, and amparo. Any conclusion in this case that betrays a lack of enthusiasm on the part of this Court to protect the cherished values of the Constitution would be a judicial calamity. That the Judiciary is designed to be passive relative to the “active” nature of the political departments is a given. But when called upon to discharge its relatively passive role, the post-1986 Supreme Court has shown zealousness in the protection of constitutional rights, a zealousness that has been its hallmark from then up to now. It cannot, in the year 2016, be reticent in asserting this brand of protective activism. 

Senator Leila M. De Lima Vs. Hon. Juanita Guerrero, et al. G.R. No. 229781. October 10, 2017

Background The Memorandum is the final submission of Senator Leila M. De Lima as petitioner in the case of De Lima v. Judge Guerrero et. al. pending with the Supreme Court. The petition was filed by De Lima to assail the issuance of a warrant of arrest against her by Judge Juanita Guerrero of the Regional Trial Court of Muntinlupa, Branch 204 in the criminal case for Illegal Drug Trading filed by the government after the resolution of the preliminary investigation conducted by the Department of Justice. After hearing the case in oral arguments, the Supreme Court directed the parties to submit their memorandum. On Constitutional Violations

The weakness of the government case against De Lima is at once apparent because of the confusion of the government on the nature and cause of the accusation against her. From consummated drug trading, the charge against her was changed by the government to conspiracy to commit drug trading, but without following the procedure in the substitution of the Information. The change was made because the Information did not allege the dangerous drugs traded and the government does not have these drugs in evidence. Evidence of the drugs is required in prosecutions for violations of the Dangerous Drugs Act. The government theory is that evidence of the drugs is not necessary in proving conspiracy to commit illegal drug trading. But even this theory is erroneous. Because of this change in the government’ position, several constitutional violations were at once committed even at the level of the Supreme Court proceedings alone. First, the change of the nature of accusation against her without the proper substitution or amendment of the Information violates her constitutional right to be informed of the nature and cause of the accusation against her. Second, De Lima was therefore charged, arrested and detained for a crime that was not the one intended to be filed against her. The government wants her tried for conspiracy to commit drug trading but the Information filed against her was for consummated drug trading. She was therefore arrested for a crime that, according to the government’s theory, was not the one that she committed. Third, from the very start, she was already adjudged by the government to be guilty even before any fact-finding or preliminary investigation was conducted against her, when she was publicly tried with prejudice by the House of Representatives, and by no less than the President, his cabinet officials, and congressional allies in public statements declaring her guilt. All the constitutional violations and disregard of the law and procedure in the filing of cases against her, as well as the orchestrated public statements of senior government officials attacking her, reveal a pattern of political persecution, rather than legitimate prosecution. On Jurisdiction The position of Senator De Lima from the outset is that neither the DOJ nor the regular trial courts has jurisdiction over her case, whether it be for illegal drug trading as charged by the DOJ in the Information, or conspiracy to commit illegal drug trading as proposed by the Office of the Solicitor General in its Comment to the Petition, or direct bribery, which De Lima thinks should be the proper charge given the allegations in the Information. She maintains that being a public official with salary grade 31 at the time of the alleged offenses, with said offenses having been allegedly committed using her power, authority and position, the proper agencies that have jurisdiction over her case are the Ombudsman and the Sandiganbayan. The rationale for the jurisdiction of the Sandiganbayan applies in De Lima’s case. The threejustice system of the Sandiganbayan was envisioned as a safeguard to counter the political influence of powerful public officials accused before it, or to check any element of political persecution against the political enemies of incumbent authorities. The single-judge system of

the regular judiciary is not designed to fulfill this purpose of the Anti-Graft Court, and is therefore more prone to powerful and irresistible political influences in its decision-making. On top of this are the basic statutory conditions for the exercise of Sandiganbayan jurisdiction: public officials with Salary Grade 27 and above charged with crimes committed in relation to their office. The allegations against De Lima constitute an Information for direct bribery, not for drug trading, simply because according to the statements in the Information itself, what she was interested in was the delivery of money from whatever source, whether this came from the trading of illegal drugs or not. Direct bribery committed by officials with Salary Grade 27 and above involving more than one million pesos squarely falls within the jurisdiction of the Sandiganbayan. On Judge Guerrero’s abuse of discretion Judge Guerrero committed grave abuse of discretion when she issued a warrant of arrest against De Lima before ruling on the issue raised by De Lima questioning her jurisdiction. She violated the Benchbook for Trial Court Judges, the officially-adopted bible for judges and the judiciary, which provides in its Procedural Checklist that before issuing a warrant of arrest, any judge should first check if she has jurisdiction over the case. Admittedly, Judge Guerrero issued a warrant of arrest first before checking on her jurisdiction, upon the erroneous assumption that she has to order the arrest of De Lima first before she can rule on issues raised against her jurisdiction. Even without the Benchbook to remind judges of this procedure, basic substantive law and procedural considerations put the primacy of jurisdiction over all other matters in criminal trials, because a court that tries a case without jurisdiction cannot pass any valid judgment. The proceedings held before it will always be null and void. In a sense, Judge Guerrero was reckless in asserting her inexistent jurisdiction, when the first consideration of a judge is to ascertain her jurisdiction because it affects her case load and most importantly, the exercise of her power, ignorance of which can lead to the imposition of administrative penalties against her. Rather than be cautious because of all the red flags on her jurisdiction already raised by De Lima in her Motion to Quash, Judge Guerrero chose to ignore these red flags, contrary to the tradition of judicial deliberation and mindfulness, especially in a case where the liberty of a person is at stake. Lastly, by issuing a warrant of arrest, Judge Guerrero found probable cause on the basis of the testimonies and affidavits of convicted criminals who are disqualified by the Dangerous Drugs Act, the WPP Law, and the Rules of Court from being discharged as State witnesses. Since these convicts cannot be allowed by law to testify in court as witnesses for the State against De Lima, the government basically has no case against her.

On Procedural Issues De Lima claims that she did not violate the rules on the hierarchy of courts, exhaustion of judicial remedies, and against forum-shopping in filing the petition. Direct recourse to the Supreme Court may be allowed if the redress desired cannot be obtained in the appropriate courts, or where exceptional and compelling circumstances justify the availing of a remedy within and calling for the exercise of the Supreme Court’s certiorari jurisdiction. According to De Lima, her petition is a matter of national interest and has serious implications. It warrants a deviation from the rule on hierarchy of courts as it involves questions of first impression, the answers to which will significantly impact the power of public institutions and the rights of citizens. The petition also involves questions of law, the resolution of which will not only affect her but all citizens of the country. It also warrants an exercise of the Supreme Court’s primary jurisdiction in the interest of speedy justice and to avoid future litigation. She also claims that her petition was properly notarized and fully complied with the substantial requirements of notarization. According to De Lima, the Supreme Court has more substantive and relevant issues to resolve than be bothered with such narrow, formalistic pettiness and legal nitpicking on the proper accomplishment of her petition’s verification. In the end, De Lima asked the Supreme Court to order her immediate release from detention. MANILA, Philippines – The Supreme Court (SC), in a majority ruling, made sure that Senator Leila de Lima remains in jail as she faces drug charges before a trial court. The SC, voting 9-6, dismissed De Lima's petition to nullify her arrest ordered by Muntinlupa Regional Trial Court (RTC) Branch 204 Judge Juanita Guerrero for one of the 3 counts of drug trade filed against her by the Department of Justice (DOJ). (READ: De Lima to appeal SC decision on drug cases)

De Lima argued that she was not sufficiently charged for drug trade. The SC upheld the charges but nonetheless said that the information could always be amended without releasing De Lima from jail. "Instead, under Section 5, Rule 117 of the Rules of Court, the trial court can simply order that another complaint or information be filed without discharging the accused from custody," the SC said.

Charge is sufficient

The ponente of the ruling is Associate Justice Presbitero Velasco Jr, whom De Lima accused of once pushing for the acquittal of drug convict German Agojo, one of the witnesses against her. Velasco has denied the accusation. In the ruling penned by Velasco, the SC junked all the points raised by the De Lima camp, down to the technicality of her jurat not being signed in the physical presence of a notary public. De Lima said that the accusations against her constitute the crime of direct bribery, and not what she was charged of, which is violation of Section 5 of the Comprehensive Dangerous Drugs Act or the "sale, trading, administration, dispensation, delivery, distribution and transportation of illegal drugs." The senator is accused of instructing drug convicts inside the New Bilibid Prison (NBP) to raise funds for her senatorial campaign in 2016. De Lima's lawyer, former solicitor general Florin Hilbay, said the charge was insufficient because the prosecutors did not present a physical proof of the drugs sold. It is referred to by lawyers as the corpus delicti, or in the crime of murder, the dead body. (READ: De Lima camp says SC ruling 'a travesty of justice') But Velasco said that to accuse De Lima of conspiring with the drug convicts is sufficient at this stage. "On this score, that it has not been alleged that petitioner actually participated in the actual trafficking of dangerous drugs and had simply allowed the NBP inmates to do so is non sequitur given that the allegation of conspiracy makes her liable for the acts of her co-conspirators," Velasco wrote.

Sale and trade Senior Associate Justice Antonio Carpio, one of the 6 justices who dissented from the majority, wrote in his dissenting opinion that the crime of illegal sale and trade of drugs should fulfill all elements:

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Notary public 'admitted' falsified affidavit in De Lima petitions – Velasco Associate Justice Presbitero Velasco Jr says the notary public admitted that the senator's affidavits were already signed before she and Senator Leila de Lima met

Supreme Court's 9-6 ruling keeps De Lima in jail (5th UPDATE) The High Court rules the Sandiganbayan has no jurisdiction over De Lima. This means her case will not be handled by the Office of the Ombudsman, but by DOJ prosecutors who will defend their case against her before the Muntinlupa RTC.

1.kind and quantity of the drugs 2.consideration of the sale 3.delivery of the object 4.payment. Here is where Velasco and Carpio butt heads. Velasco says sale and trade are two different things. “Justice Carpio, in particular, would cite cases supposedly enumerating the elements necessary for a valid Information for Illegal Drug Trading. However, it should be noted that the subject of these cases was 'Illegal Sale' of dangerous drugs – a crime separate and distinct from 'Illegal Trading' averred in the Information against De Lima," Velasco wrote. Using the definition of drug trading under the law, Velasco said that it is sufficient at this stage that the prosecution accused De Lima brokered the trade by means of an electronic device. But Carpio points out that the electronic device definition is just but one of the elements of illegal sale and trading. Section 5 of the law, which is what is in the information against De Lima, lumps together "sale, trading, administration, dispensation, delivery, distribution and transportation of illegal drugs." "Contrary to the position of the ponencia, the crimes of 'illegal sale' and 'illegal trade' of drugs are both violations of Section 5, except that 'illegal trade' involves the use of electronic devices in the sale of drugs,” Carpio said.

In his dissent, Carpio cites 12 of Velasco's past ponencias and 5 past ponencias of Associate Justices Diosdado Peralta, Mariano del Castillo, Lucas Bersamin, Teresita Leonardo De Castro and Noel Tijam, which all said that all elements must be fulfilled to properly charge a person for the crime of violating Section 5 of the law. The 5 justices mentioned above voted to denied De Lima's petition along with Velasco and Duterte appointees Associate Justices Samuel Martires, Andres Reyes, and Alexander Gesmundo.

Jurisdiction The SC majority ruling also ruled that it is the DOJ, and eventually a trial court, which have the jurisdiction to try De Lima. (READ: EXPLAINER: Issues on jurisdiction in De Lima cases) For one, they said, it was clear in the text of the Comprehensive Drugs Act that the trial courts are "exclusively vested" with the jurisdiction try cases. The De Lima camp pointed out that the Sandiganbayan law covers public officials above salary grade 27 who committed a crime related to her office, which they said apply to De Lima. But the SC said that in the event of overlapping laws, it is the special law – in this case the Comprehensive Drugs Act – which shall prevail over the general law which is the Sandiganbayan law. The SC also said that the trial court judges were trained by the Philippine Judicial Academy (Philja) to handle cases which deal with chemical substances. "Without a doubt, not one of the Sandiganbayan justices were provided with knowledge and technical expertise on matters relating to prohibited substances," the ruling said. The SC also cites data: "As of June 30, 2017, there are 232,557 drugs cases pending before the RTCs. On the other hand, not even a single case filed before the Sandiganbayan from February 1979 to June 30, 2017 dealt with violations of the drugs law."

All doors closed

The SC said also sided with Solicitor General Jose Calida who said De Lima violated the hierarchy of courts. De Lima had filed a motion to quash with the Muntinlupa RTC, which has not been resolved yet. The SC said the Senator should have waited for the trial court to resolve that first before running to the High Court. "In the light of the foregoing, the best course of action for the Court to take is to dismiss the petition and direct the trial court to rule on the Motion to Quash and undertake all the necessary proceedings to expedite the adjudication of the subject criminal case," the ruling said. Unfortunately for De Lima, her motion to quash will now be decided on by Judge Guerrero in the context of this new SC ruling which has already thrashed her arguments.

And as the SC said, even if she wins that one in the trial court level, "an order sustaining the motion to quash the information would neither bar another prosecution or require the release of the accused from custody." – Rappler.com

More dissents in De Lima case

Tony La Viña

posted November 07, 2017 at 04:27 am by

 Other than Associate Justices Antonio Carpio and Marvic Leonen, four more magistrates of the Supreme Court, namely the Chief Justice herself Maria Lourdes Sereno, Associate Justices Benjamin Caguioa, Francis Jardeleza, and Estela Bernabe submitted their dissent to oppose the majority decision of the Court in the Senator Leila M. De Lima Vs. Hon. Juanita Guerrero, et al, G.R. No. 229781. October 10, 2017.

Chief Justice Sereno’s dissent follows the thesis that from the recital of drug offenses, it can be seen that depending on the particular allegations in the charge, most of the offenses under R.A. 9165 can be committed by a public officer in relation to office. However, given the thousands of public officers included in the President’s drug list vis-a-vis the numerous means through which a drug offense can be committed in relation to public office chaos in the process of determining which prosecutorial body or tribunal has jurisdiction ensues. And this is not a question left for determination by the Department of Justice and the Office of the Ombudsman (Ombudsman) alone, but the duty of the Court to clarify and settle the question of jurisdiction over the alleged acts of the petitioner could not have been committed unless in relation to her office. Sereno points out that as petitioner was a public official and for having committed violations of R.A. 9165 by using her office as a means of committing the crime of illegal trading in dangerous drugs under Section 5 in relation to Section 3(jj), Section 26(b ), and Section 28, the case falls under the exclusive jurisdiction of the Sandiganbayan and not with the Regional Trial Court. Sereno believes that it is more favorable to petitioner and all other similar public officials accused of drug offenses committed in relation to their office to be placed within the Sandiganbayan’s jurisdiction because first, the appeal route is shorter, by virtue of the fact that the review of convictions is generally elevated to this Court via the discretionary mode of petition for review on certiorari under Rule 45. Second, the direct elevation of a petition to the Supreme Court translates to the application of a tighter standard in the trial of the case. For his part, Justice Caguioa believes that the Information does not charge “attempt or conspiracy to commit illegal trading of dangerous drugs” under Section 26(b) of RA 9165. Instead, a reading of the body or factual recitals of the Information is that Petitioner is being charged with violation of Section 5 and not violation of Section 26(b ). To Caguioa there is nothing clearer—the purported offense described in the Information is illegal drug trading as a consummated crime, and not as a conspiracy to commit the same. Moreover, the the Information does NOT charge Petitioner with illegal “trading” of dangerous drugs as defined under RA 9165. While the word ‘’trading” is attributed to Petitioner in the Information, the essential acts committed by Petitioner from which it can be discerned that she did in fact commit illegal “trading” of dangerous drugs as defined in RA 9165 are not alleged therein. Neither, he says, does the Information validly charge Petitioner with violation of Sections 27 and 28 of the Act. Justice Caguioa also argues that the Information does not validly charge Petitioner with any unlawful act under the Act. In his words, the patent glaring defects on the face of the Information such as the absence of the corpus delicti or the “dangerous drugs” the use of the term “trading” is without the specific acts committed by Petitioner as there is no averment of any or all the elements of said unlawful acts, including her use of identified electronic device/s; the names of the so-called “high profile inmates in the New Bilibid Prison” are not provided; and the purported acts of the said inmates constituting

illegal “trade and traffic [of] dangerous drugs” (from which the “proceeds” were derived) are not alleged—ll make the information fatally defective.

On his part, Justice Jardeleza is of the opinion that at the time of the alleged commission of the offense, petitioner was the incumbent secretary of the Department of Justice, a position classified as Salary Grade 31 and squarely falls within the jurisdiction of the Sandiganbayan. It is likewise clear from the allegations in the information that the crime was committed in relation to her capacity as then secretary of Justice; hence, the Sandiganbayan has exclusive jurisdiction over petitioner’s case. Without jurisdiction, Jaredeleza adds, the RTC could not have issued the warrant of arrest. Jardeleza clarifies that the respondent judge violated petitioner’s constitutional right to due process and to speedy disposition of cases when she issued a warrant of arrest without resolving the issue of jurisdiction over the offense charged. According to Jardeleza, she ought to have known that, under the Rules, she could not have proceeded with petitioner’s arraignment if she did not have jurisdiction over the offense charged. Respondent judge’s error is aggravated by the fact that the lack of jurisdiction is patent on the face of the information. Finally, while concurring in some points of the majority opinion, Justice Bernabe also concludes that Senator De Lima’s case falls within the jurisdiction of the Sandiganbayan. She pointed out how this conclusion necessitates the dismissal of the case against her as it was erroneously filed with the RTC, which holds no jurisdiction over the same. According to Bernabe: “It is well-settled that a court which has no jurisdiction over the subject matter has no choice but to dismiss the case. Also, whenever it becomes apparent to a reviewing court that jurisdiction over the subject matter is lacking, then it ought to dismiss the case, as all proceedings thereto are null and void.”

DISSENTING OPINION. Supreme Court (SC) Associate Justice Benjamin Caguioa explains his vote in favor of Senator Leila de Lima in a 59-page dissenting opinion. File photos from Rappler and the SC website

MANILA, Philippines – Supreme Court (SC) Associate Justice Benjamin Caguioa said the Muntinlupa City Regional Trial Court (RTC) had no legal basis to issue an arrest warrant against Senator Leila de Lima, and warned that if such could happen to a senator, it could happen to anyone.

Caguioa was among the 6 justices who voted in favor of De Lima on Tuesday, October 10, but the SC en banc junked the senator's petition and ruled that the RTC has jurisdiction over the drug cases filed against her. The majority ruling keeps De Lima in jail.

But Caguioa in his 59-page dissenting opinion stressed that the information is "null and void" as well as "fatally defective" as it does not validly charge De Lima with any unlawful act under Republic Act No. 9165. He said the following are the information's "patent glaring defects": the corpus delicti or the "dangerous drugs" subject of the case is not particularly alleged

or identified the use of the term "trading" is without the specific acts committed by De Lima as there is no allegation of any or all the elements of the supposed unlawful acts, including her use of identified electronic device/s the names of the so-called "high-profile inmates in the New Bilibid Prison" are not provided the purported acts of the high-profile inmates constituting illegal "trade and traffic [of] dangerous drugs" (from which the "proceeds" were derived) are not alleged "Given the nullity of the Information, the respondent Judge had no legal basis to issue the warrant of arrest against Petitioner and the Information should have been quashed or nullified by the respondent Judge at the very outset," Caguioa said, referring to Muntinlupa RTC Branch 204 Judge Juanita Guerrero. According to Caguioa, the information against De Lima for illegal trading of drugs is also "perforce fatally defective." "Accordingly, Petitioner is effectively deprived of the fair opportunity to prepare her defense against the charges mounted by the Government as she is left to rely on guesswork and hypotheticals as to the subject matter of the offense," the SC justice explained.

"Under these circumstances, by no means is Petitioner properly equipped to face the awesome power and resources of the State, there being no sufficient factual allegations of the specific, actual offense that she is charged with and its corpus delicti." Caguioa said De Lima was "no doubt" deprived of her right to be informed of the nature and cause of the accusation against her. He said the senator has also been "deprived her liberty without due process and to be presumed innocent." The SC justice also noted that the ponencia "conveniently avoids" specifying and enumerating the elements of illegal trading. "How can the sufficiency of the Information be determined if not even the elements of the crime it is supposedly charging are known?" Caguioa asked. By doing this, Caguioa said the ponencia tends to validate the "dangerous and anomalous situation" where an ordinary citizen can be arrested "by mere allegation" in an information of committing "illegal trading of dangerous drugs using mobile phones and other electronic devices." "It is highly lamentable that the majority of the members of the Court have put their imprimatur to this insidious manner of phrasing an Information concerning illegal drugs offenses to detain an unsuspecting individual. The real concern is this: if this can be done to a sitting Senator of the Republic of the Philippines, then this can be done to any citizen," he added.

Other Stories Who is the judge who ordered De Lima's arrest? Senator Leila de Lima, during her time as chief of the Department of Justice, was involved in other cases with Muntinlupa Judge Juanita Guerrero

No abuse of discretion in arrest warrant vs De Lima – Justice Tijam Supreme Court Justice Noel Tijam says detained Senator Leila de Lima failed to show that Judge Juanita Guerrero committed grave abuse of discretion

Judge who ordered De Lima’s arrest inhibits from case Muntinlupa Regional Trial Court Judge Juanita Guerrero also orders that the court shall proceed with De Lima's case

Caguioa also said that this case goes down in history as "the only criminal case involving dangerous drugs where the information is totally silent on the corpus delictiof the illegal trading and yet is still held sufficient by its mere averment of the phrase 'dangerous drugs.'" This case, he said, now "opens the floodgates" to the filing of criminal cases on mere allegation that a person had sold or traded "dangerous drugs."

'No direct bribery' Caguioa disputed De Lima's claim that the accusations against her constitute the crime of direct bribery instead of illegal trading. "Contrary to the claim of Petitioner, no direct bribery is discernible from the Information. Instead, based on the ultimate facts alleged, the Information supplies a basis for a charge of indirect bribery," he explained. The ultimate element of indirect bribery, he said, is the acceptance by a public officer of a gift or material consideration. What's more, Caguioa noted that indirect bribery is an offense within the jurisdiction of anti-graft court Sandiganbayan, and not the RTC. "Thus, the respondent Judge had no jurisdiction to take cognizance of the case and issue the warrant of arrest against Petitioner," he added. SC Associate Justice Francis Jardeleza, who also voted in favor of De Lima, shares Caguioa's opinion on which court has the jurisdiction of the case. "At the time of the alleged commission of the offense, petitioner was the incumbent Secretary of the Department of Justice, a position classified as Salary Grade 31 and squarely falls within the jurisdiction of the Sandiganbayan. It is likewise clear from the allegations in the Information that the crime was committed in relation to her capacity as then Secretary of Justice," Jardeleza said in his 11-page dissenting opinion.

Jardeleza argued that Guerrero violated De Lima's constitutional right to due process and to speedy disposition of cases when she issued a warrant of arrest without resolving the issue of jurisdiction. "When a court without jurisdiction over the offense orders the arrest of the accused prior to resolving the issue of jurisdiction, it necessarily prolongs the disposition of the case. I view this delay as incompatible with due process and the right to speedy disposition of cases," he explained further.

'The Constitution can wait' While the SC upheld the charges against De Lima, it nonetheless said that the information could always be amended without releasing De Lima from jail. Caguioa in his dissenting opinion, however, argued that even if the information may be cured by an amendment, the RTC judge should have waited for the amendment to be made before issuing the warrant of arrest against De Lima. "To detain or restrain the liberty of Petitioner on the strength of a fatally defective Information, or pending the amendment thereof to conform to the requirements of the Rules of Court, was to consciously and maliciously curtail Petitioner's constitutionally-guaranteed rights to be presumed innocent, to be informed of the nature and cause of the accusation against her, and not to be deprived of her liberty without due process," he explained. In his concluding statement, Caguioa noted that there is no direct pronouncement from the SC that the information against De Lima and her co-accused is valid. (READ: De Lima ruling 'one of the grossest injustices' – Carpio) He insisted that the information cannot possibly be amended "because it is fatally defective." "The majority of the Court has succeeded, by its Decision, to make the Constitution subservient to the rules of procedure. They now allow for the deprivation of an individual's liberty while waiting for the correct and legally sufficient Information to be filed and approved by the criminal court," he said.

Caguioa noted that the SC has already ruled before that void information warrants the acquittal of the accused.

"And when the accused is finally acquitted, then the Constitution can finally be invoked to justify the acquittal – his constitutional rights can then belatedly be declared to have been violated. In the end, years down the road, the Constitution would then be given its due importance. But today, to the majority, the Constitution can wait." – Rappler.com