YUVIENCO, RIBOMAPIL C. COMMUNICATION SKILLS FOR LAWYERS ATTY.

IRIS BONIFACIO

LEGAL OPINION IN RE. SENATOR DE LIMAS IMPRISONMENT

Chronological Statement of the Facts

March 2009

Lillia De Lima, who was then head of the governments Commission on Human Rights, flies to
Davao, the home base of then Mayor Rudolfo Dubente and begins a public inquiry into the
alleged death squads in the city.

In her inquiry, De Lima states that she is bothered by statements attributed to Dubente which
tend to condone this phenomenon of illegal or vigilante-style killings.

To this, Dubente responds that if there is evidence that he or his staff, personnel or ilk are involved
in the killings, he will resign as city mayor.

June 2012

The Human Rights Commission, after De Lima stepped down to become justice secretary, finds
that there was a systematic practice of extrajudicial killings in Davao. She then orders the National
Bureau of Investigation (NBI), which is part of the justice department, to launch a probe into the
alleged death squads.

May 2016

Dubente is elected President of the Philippines. De Lima separately wins a seat in the Senate.

Days after the election, the justice department announces that it has closed its investigation into
the death squads because the last witness had fled a safe house run by the departments witness
protection program.

August 2016

Dubente accuses De Lima of running a drug trafficking ring with criminals inside the nations
biggest prison to help fund her Senate election campaign.

De Lima, as head of the Senate justice and human rights committee, launches public hearings on
alleged extrajudicial killings (EJKs) in Dubentes drug war. A self-declared Davao Death Squad
assassin testifies in the Senate that he and others killed about 1,000 people from 1998 to 2013 upon
Dubentes orders. Dubentes allies in the Senate depose De Lima as committee head days later.

September 2016

Several drug gang leaders at the countrys main prison, the National Bilibid Prison testify at the
House of Representatives and repeat Dutertes allegations that De Lima and her driver-
bodyguard engaged in drugs trafficking.
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December 2016

The Senate drug-war inquiry, now chaired by a Dubente ally, concludes that the President and
the state are not responsible for extra-judicial killings.

February 17, 2017

The justice department files drug trafficking charges against De Lima. Four days later, De Lima
brands Dubente a serial killer and calls for the people to show courage and oust him.

February 24, 2017

De Lima is arrested and is subsequently imprisoned at the National Bilibid Prison.

Issue

The sole issue that will be resolved and discussed by this legal opinion is the legality of De Limas
imprisonment at the National Bilibid Prison.

Discussion

The issue on De Limas imprisonment is a highly procedural one. However, before touching upon
that aspect of the case, it is necessary to first discuss here Constitutional rights and the substantive
law that lead to her arrest.

Under the 1987 Constitution, no person shall be deprived of life, liberty, or property without
due process of law, nor shall any person be denied equal protection of the laws.1

This particular law simply means that the State may in fact rightfully deny a persons life, liberty,
or property as long as it follows the due process of law, wherein a person shall still be lawfully
heard before the courts of law before he can be rightfully condemned.

Thus, De Lima (or any person for that matter) is ensured by no less than the constitution itself
that they will have their day in court. Accordingly, there are two kinds of due process2 that is
available to her:

1. Substantive due processit requires the intrinsic validity of the law in interfering with the
rights of the person to life, liberty or property.

1
Art. III, Sec. 1, 1987 Constitution
2
Cruz, Constitutional Law, 2015 ed., pp. xx
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2. Procedural due processthis means that the law hears before it condemns, proceeds upon
inquiry and renders judgment only after trial.

On the substantive due process aspect of the case, the law that causes of the subject deprival must
be valid and constitutional. Based on the foregoing and on De Limas warrant of arrest, she and
the other accused, Mark Raffy Z. Ragos and Paul Ronnie Dayan are all sued for violation of Sec.
5, in relation to Section 3 (jj), Section 26 (b), and Section 28 of the Comprehensive Dangerous
Drugs Act of 20023.

The law which opened the floodgates for their arrest has not been declared unconstitutional.
Hence, on this front, the state has acted rightfully.

When it comes to matters of procedural due process, one must look into whether or not the arrest
done and the subsequent detainment conducted to De Lima was rightfully done and that there
was no lack or excess of jurisdiction done by any of the States law enforcement agencies.

As provided in the Rules of Criminal Procedure4 under the Rules of Court, arrest of a person that
is criminally charged may be done with or without a warrant. For brevitys sake, this legal opinion
shall not quibble on the instances of warrantless arrest but will just focus on the arrest with
warrant done unto Sen. De Lima.

The procedure in applying for a warrant of arrest is guaranteed likewise by the 1987 Constitution5
and enforced by the Rules on Criminal Procedure6, the latter provides the detailed procedure on
how such warrant can be issued:

Section 5. When warrant of arrest may issue. (a) By the Regional Trial Court.
Within ten (10) days from the filing of the complaint or information, the judge
shall personally evaluate the resolution of the prosecutor and its supporting evidence.
He may immediately dismiss the case if the evidence on record clearly fails to
establish probable cause. If he finds probable cause, he shall issue a warrant of arrest,
or a commitment order if the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 6 of this Rule. In case of doubt
on the existence of probable cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the issue must be resolved
by the court within thirty (30) days from the filing of the complaint of information.

The warrant of arrest has been served on Sen. De Lima which prompted police authorities to
arrest her and likewise imprison her at the National Bilibid Prison.

However, this legal opinion humbly submits that the Senator was wrongly imprisoned. For
imprisonment already means that there has been a determination of guilt already7. If the Senator

3
Republic Act No. 9165
4
Rules 110-127
5
Art. III, Sec. 2
6
Sec. 5 Rule 112, Rules of Court
7
Reyes, Criminal Law 1
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is already lodged within the National Bilibid Prison, it already means that she is serving her
sentence which must not be the case for without any hearing before a court of law whatsoever,
her right to procedural due process has been impugned8.

The law thus provides a remedy in this situation should the accused have no other recourse, or
remedy in order to question any grave abuse of discretion amounting to lack or excess of
jurisdiction done by any government agency, (i.e. the DOJ that wrongly imprisoned her). That
particular relief is through filing of a petition for certiorari9. Rule 65, Sec. 1 of the Rules of Court
provides that:

Section 1. Petition for certiorari. When any tribunal, board or officer

exercising judicial or quasi-judicial functions has acted without or in excess its or
his jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping as provided in
the third paragraph of section 3, Rule 46.

Under the abovementioned rule, Senator De Lima may successfully question the validity and
legality of her imprisonment in order to make sure that she is not unjustly incarcerated as she
prepares for her defense on the day that she is heard in court.

8
Cruz, Constitutional Law, 2015 ed.
9
Riano, Civil Procedure