Former Solicitor General Florin Hilbay on Tuesday hit the Department of Justice (DOJ) and the Office of Solicitor General (OSG) for insisting on Senator Leila De Lima's links to the illegal drug trade inside the New Bilibid Prison.
During the oral arguments at the Supreme Court (SC) on De Lima's petition questioning the validity of her arrest, Hilbay said the government had no concrete evidence against her.
De Lima has been under police detention since February 24, a day after Judge Juanita Guerrero of the Muntinlupa City Regional Trial Court Branch 204 ordered her arrest on the basis of the case filed by the DOJ that accuses her of complicity in the illegal drug trade inside the national penitentiary when she was justice secretary.
The senator has repeatedly denied the charges, which she said were only meant to silence her criticism of the Duterte administration's heavy handed approach to its war against illegal drugs.
"The most egregious aspect of the accusation against petitioner is the fact that there is no corpus delicti—she is being charged with a crime for which no evidence exists," said Hilbay, a member of De Lima's legal team, in his opening statement.
"What the DOJ wants to do in this case is equivalent to prosecuting a person for murder without the evidence of a killing, or for theft without any evidence of anything having been stolen," he added.
Hilbay noted the jurisprudence on drugs cases "will show how obsessive-compulsive" the SC is with identity of drugs, its weight, quality, and chain of custody.
"The government now wants to be exempt from this requirement, for this particular case," he said.
But in its comment, the OSG said the actual evidence was not the illegal drugs "but the agreement or attempt itself" to commit conspiracy in the sale or trading of dangerous drugs.
According to the OSG, Section 21 of Republic Act 6425, precursor to Republic Act 9165, said what is being punished is the mere agreement to commit offense of selling dangerous drugs and that this is an exception to the rule that mere conspiracy to commit a crime is not punishable.
OSG case different from DOJ's
Hilbay said the DOJ and the OSG could not agree on the nature of the charges against De Lima.
"While the DOJ has charged petitioner with the crime of Illegal Drug Trading under Section 5 of the Dangerous Drugs Act (Republic Act 9165), the OSG now says that the charge against petitioner is Conspiracy to Engage in Illegal Drug Trading under Sec. 26(b) of the same law," he said.
"So, while the DOJ alleges in its defective Information that petitioner is an actual drug lord—a master of puppets—the OSG is now saying petitioner is a theoretical drug lord—a drug lord in words and not by deed— one who merely conspired to trade in drugs with alleged co-conspirators but actually never did so."
Because of this, Hilbay said the case against De Lima should be "immediately dismissed" and she should be "released without further delay."
"The case that confronts Your Honors today involves a unique and tragic convergence of a demonstrably spurious case, filed by prosecutors who demonstrably have no authority to do so, before a judge who demonstrably does not have jurisdiction," he said.
Hilbay also maintained that the case should have been referred to the Office of the Ombudsman, which has primary jurisdiction over cases cognizable by the Sandiganbayan.
He said De Lima should have been charged with direct bribery as it was "obvious" that the alleged offense was committed in relation to her position as Secretary of Justice.
"However, which way one looks at it, whether because of the nature of the alleged offense (direct bribery or illegal drug trading) and the salary grade of petitioner which is 31, way above the threshold of 27, such case can only be filed with the Sandiganbayan. Let me emphasize the language of the statute: exclusive original jurisdiction," Hilbay said.
"It is therefore unthinkable how the DOJ could have filed this case before the RTC, and how Judge Guerrero of RTC Muntinlupa could have possibly concluded that she had jurisdiction and issued the warrant of arrest with inexplicable haste," he added.
The oral arguments were still ongoing as of posting time. —KBK, GMA News