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Hilbay: OSG case vs De Lima different from DOJ charges

During oral arguments at the SC, Hilbay hits his successor for citing a provision of the drugs law different from what was charged against De Lima before a trial court

DISCREPANCY. On the first day of the SC oral arguments on March 14, former solicitor general Florin Hilbay highlighted the discrepancy between the DOJ charges and the comment filed by Calida. Photo by LeAnne Jazul/Rappler

MANILA, Philippines – Solicitor General Jose Calida committed a blunder when he filed a comment before the Supreme Court which was different from what the justice department filed in its case against Senator Leila de Lima.

On the first day of oral arguments at the Supreme Court (SC) on Tuesday, March 14, former solicitor general Florin Hilbay highlighted the discrepancy between the DOJ charges and the comment filed by Calida.

De Lima was charged before a Muntinlupa court with 3 counts of violation of Section 5 of the drugs law, which penalizes the "sale, trading, administration, dispensation, delivery, distribution and transportation of illegal drugs."

In his comment submitted to the SC, however, Calida said that De Lima “was properly charged with conspiracy to commit drug trading under section 26 (b) of RA 9165.”

Hilbay zeroed in on the different provisions in the Drugs Law cited by Calida.

Section 26 (b) of the drugs law penalizes "any attempt or conspiracy to commit sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug."

"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," Hilbay said in his opening statement before the High Tribunal.

Because of the discrepancy, Hilbay appealed to the court that De Lima’s charges be immediately dismissed for violation of the right of an accused to be properly informed about her case.

"The OSG is now saying is that Judge [Juanita] Guerrero found probable cause and issued a warrant of arrest against petitioner for the wrong case. For this reason alone, and without further arguments, the case against petitioner should be immediately dismissed. She should be released without further delay," Hilbay said.

Hilbay added: "The shift from the charge of consummated drug trading under Sec. 5 to mere conspiracy to trade drugs under Sec. 26 is the clearest admission that Senator De Lima is not a drug lord."

Laws on jurisdiction

Hilbay reiterated their camp’s main argument that the DOJ has no jurisdiction to investigate De Lima and that the trial court has no jurisdiction to hear the cases.

Hilbay cited the Sandiganbayan law or Presidential Decree 1606 which states that the anti-graft court has jurisdiction over the cases against government officials who commit an offense in her official capacity.

"If the charge is in fact Illegal Drug Trading, as the DOJ alleges, it is obvious that the Information itself alleges that such offense was committed in relation to petitioner’s position as Secretary of Justice. Thus, the Sandiganbayan would have exclusive original jurisdiction under Sec. 4(b). There can be no doubt about this," Hilbay argued.

In his comment, Calida cited a provision in the Drugs Law which states that the DOJ and the criminal circuit courts, later turned into the regional trial courts, have the jurisdiction to exclusively handle cases involving violations of the law.

Hilbay, citing the Ombudsman Law, also said the DOJ should not have investigated De Lima in the first place because it was the Office of the Ombudsman who was authorized to do so. Hilbay added that that there was even a Memorandum of Understanding between the DOJ and the Ombudsman which states: "If, upon the filing of a complaint, the prosecution office of the DOJ determines that the same is for a crime falling under the exclusive jurisdiction of the Sandiganbayan, it shall advise the complainant to file it directly with the Ombudsman."

"The DOJ’s failure to comply with its duty to refer violates the law and impairs the jurisdiction of the Office of the Ombudsman," Hilbay said. – Rappler.com