My take on the De Lima decision

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The Supreme Court Decision in De Lima v. Guerrero, et. al. (G.R. SP No. 229781; October 10, 2017) will certainly be studied by generations of law students to come for its nuances as a classic example of a political decision. Without doubt, the voting of the Supreme Court plainly reflects political lines in terms of who appointed the justices. We are here talking about the same basic legal principles in criminal procedure and constitutional law learned by the justices in the same law schools. And yet, the division in opinion is uncannily split right down the middle between Aquino appointees as dissenting justices, on the one hand, and Arroyo and Duterte appointees on the other. The only exception is Justice Antonio Carpio, an Arroyo appointee who voted with the minority justices appointed by Aquino.

A full en banc decision where the voting is almost evenly split, especially along lines of who the appointing authority is, most likely deals with a political case, and the eventual decision reached a political one. The Court’s decision in the case of De Lima is no different. When basic questions of law raised can be decided on the basis of the same legal principles that all court magistrates have learned and studied in law school, and yet are decided upon with polar opposites as the outcome, there is a problem with either how the law is taught in our law schools, or how the Supreme Court is not isolated from the political conditions that influence their interpretation of the law.

This is the very nature of Supreme Court decisions on political cases. When 15 of the most learned and experienced justices of the land give two conflicting interpretations of the law on questions that any law graduate is expected to answer correctly in the bar exam, it is fair to say that the decision reached is not entirely disinfected of the prevailing political atmosphere. It is either that, or half of the justices of the Supreme Court might have to retake the bar exams all over again. Because if De Lima’s case was a part of the bar exams, only one side of an almost evenly divided Court could have answered the question correctly, and the other half would have failed the exams.

Ironically, not only the whole Court is divided on the De Lima case, but also the majority who decided against De Lima, at least on the issue of what crime the Information actually charges her with. Five justices of the majority say it is Illegal Drug Trading (Section 5 of Republic Act No. 9165). Three justices say it is Conspiracy to Commit Drug Trading (Section 26 (b) of the same law). One justice says it is the first, but four paragraphs later he says it is the second.

The Rules of Court provide that this cannot be. The nine justices comprising the majority of the Supreme Court in the De Lima case cannot say that they can choose from among two crimes that appear to be charged in one and the same Information, with five justices voting for one and three others voting for another, and yet another one picking both. They are not free to pick whatever crime they think is charged in the Information because there can only be one charge in one Information. It cannot be both Illegal Drug Trading, as maintained by five justices, and Conspiracy to Commit Drug Trading, as separately opined by three others. No two crimes can be charged in the same information without violating the rule against charging multiple offenses in one and the same information.

Of course, this is the basic argument of Senator De Lima in her Motion for Reconsideration. The split opinion of the majority in a split Decision of the Court on what crime the Information actually charges her with only goes to show that the Information ought to have been nullified by the Court due to its vagueness, the warrant of arrest issued on its basis voided, and Senator De Lima ordered released.

Basic legal principles in criminal procedure provide that the Information must be sufficient to clearly identify the crime charged and the acts allegedly committed by the accused that satisfy the elements of said crime. This is because whether or not this is accomplished properly affects the constitutional right of the accused to be informed of the nature and cause of the accusation against her. Thus, the notice to the accused of the criminal accusation against her (in legal parlance, this takes the form of an “Information”), must be plainly understood by an ordinary reasonable man or woman. The law assumes that the accused is not a lawyer, and that she must therefore know what she is being accused of in layman’s terms. Failing this test, the Information is void for being vague.

In the effort of the majority of the Court to affirm the validity of the Information, they themselves showed that it is null and void for being vague, since not even they can agree among themselves on what is actually the crime charged in the Information. If the nine justices cannot even agree among themselves on the simple matter of what crime is charged in one and the same Information, whether it is Illegal Drug Trading, or Conspiracy to Commit Drug Trading, then the Information is patently void, as concluded by dissenting Justices Antonio Carpio and Benjamin Caguioa.  (To be continued on Tuesday)

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