COLUMNISTS-OPINION: NEWSSTAND By: John Nery- ‘I will destroy her in public’

Tomorrow, Sen. Leila de Lima will spend her 1,000th day in detention— for a charge that is “blatantly a pure invention,” driven by “motives [that] are not disguised.” The first quote is from the dissenting opinion of Senior Associate Justice Antonio Carpio, the second from the dissent of Associate Justice Marvic Leonen, after a majority of eight justices of the Supreme Court ruled in October 2017 that De Lima’s prosecution on a drugs-related charge was not unconstitutional.

Carpio’s dissent called it straight: “This Court, the last bulwark of democracy and liberty in the land, should never countenance such a fake charge. To allow the continued detention of petitioner under this Information is one of the grossest injustices ever perpetrated in recent memory in full view of the Filipino nation and the entire world.”

I was moved to read the Supreme Court decisions again—because the majority opinion, written by Justice Presbitero Velasco, is an object lesson in the rationalization of the irrational, and especially because the dissenting opinions of Carpio, Leonen and Chief Justice Maria Lourdes Sereno are a rigorous, resounding refutation of Velasco’s legalistic mealy-mouthedness.

In particular, I wish to point out an outstanding strategy in both logic and rhetoric that Carpio and Leonen use to great effect: the list, which through the accumulation of particular details describe the context of the legal issue more fully AND rout the other party’s arguments comprehensively. (The social-media equivalent of these lists, I venture to say, would be something like a Twitter thread of “resibo” or receipts.) But I think that refreshing our memory about the details in these lists would also allow us to remember, with greater force, the gross injustice perpetrated against De Lima.

Carpio finds three substantive grounds for granting De Lima’s petition (which is a pleading to annul the judicial order which gave rise to her warrant of arrest). He uses the strategy of the list to support the first ground: The Information against De Lima “does not allege any of the essential elements of the crime of illegal sale or illegal trade of drugs”—the crime the opposition senator was hurriedly charged with.

Then, clinically, like a surgeon methodically exposing a patient’s flesh, he proceeds to prove that, first, the writer of the majority opinion, Velasco, and then the other members of the Court, had ruled clearly in previous drugs-related cases that all the essential elements of the crime of illegal sale of drugs must be present for the cases to prosper. “For the present case, I refer to the enumeration of these essential elements in a nonexhaustive recitation of cases prepared by the ponente and some incumbent Members of the Court.”

He begins: “In September 2009, [Velasco] affirmed the conviction of Hasanaddin Guiara,” and then quotes from Velasco’s decision: “In the prosecution of illegal sale of shabu, the essential elements have to be established, to wit: (1) the identity of the buyer and the seller, the object of the sale and the consideration; and (2) the delivery of the thing sold and the payment therefor.”

Then Carpio proceeds to do this, not one or two more times, but 12 more times, each time quoting a passage from the ruling Velasco wrote in the given case requiring that all the essential elements be present. This seems to me conclusive proof that Velasco treated De Lima’s case differently. For good measure, Carpio then cites one example from nine other justices, including himself, holding that all the essential elements defined in Republic Act No. 9165 (the Dangerous Drugs Act) must be established by the prosecution. His citations follow the order of seniority: Sereno, then Carpio, all the way down to Justice Noel Tijam.

In his “Final Word,” Carpio offers a trenchant analogy. “The charge against petitioner under the present Information is like charging petitioner as a co-principal and co-conspirator in the crime of kidnapping for ransom with murder… but the Information does not allege the identity of the actual kidnappers and killers, the identity of the victim, the fact of death of the victim or the corpus delicti, how the victim was killed, and the amount of the ransom money.”

Leonen uses the list, the enumeration, to similar effect in his own dissent, by publishing 22 statements from President Duterte (from a list compiled by De Lima and presented in her appeal) attacking the senator. The statements showed both that the President had prejudged De Lima, and that he was committed to, in his own words, “destroy her in public” (Aug. 11, 2016), that “she will be jailed” (Sept. 26, 2016), that “she will rot in jail” (Oct. 25, 2016).

Leonen concludes: “The vindictive and oppressive manner by which petitioner was singled out and swiftly taken into custody is an exceptional circumstance that should have placed the courts on guard that a possible miscarriage of justice may occur.” It did, and tomorrow marks a thousand days.

On Twitter: @jnery_newsstand, email: [email protected]