Senator in Peril: Covering Leila De Lima’s Arrest
POLITICS IS dirty. But nothing in the past could rival the tawdriness and cruelty of the campaign to bring down Senator Leila de Lima, driven by key members of the Duterte administration and the majority coalition in the two houses of Congress, including her colleagues in the Liberal Party (LP) who had joined the majority.
An elected senator, she was subjected to harassment by her peers and House representatives. Her torment included removal from the chairmanship of the senate committee on justice and human rights; hostile testimonies by convicted drug dealers serving prison terms to testify against her; scurrilous insulting questions; and the threat of showing a fabricated video supposedly of her having sex with her lover. All took place according to prescribed parliamentary procedure, complete with the honorifics so beloved by legislators. Aired live, her shaming was a national embarrassment; a demonstration of power, a political show.
Now detained in jail, De Lima is at least removed from the stench of the process that had led to her arrest. But the public is now confronted with a legal case. This needs explaining. The judicial course may be a political operation as well; but journalists will have to make sense of the legal language spouted by their sources and untangle the judicial motions moving forward.
A bit of background on the basis of the arrest might help. The Department of Justice (DOJ), which De Lima headed during the Aquino administration, filed criminal charges on three counts, accusing her of violating the Comprehensive Dangerous Act of 2002 (RA 9165), particularly the sale and trade of illegal drugs and the criminal liability of government officials and employees – a non-bailable offense punishable by reclusion perpetua.
Judge Juanita Guererro of the Muntinlupa Regional Trial Court (RTC) Branch 204 issued the warrant, citing probable cause for charging De Lima with supposedly abetting the illegal drug trade in the New Bilibid Prison during her term as justice secretary from 2010 to 2015.
A staunch critic of President Rodrigo Duterte, De Lima has long been the thorn on the side of the tough-talking former Davao City mayor. As far back as 2009, she investigated the Davao Death Squad in her capacity then as chairperson of the Commission on Human Rights (CHR). In the senate, she set out to investigate the killings, arguing these were extra-judicial killings (EJKs) perpetrated by the police. As president, Duterte claimed in some of his speeches that De Lima was involved in the selling of drugs in the national penitentiary.
CMFR monitored reports from the newspapers Manila Bulletin, the Philippine Daily Inquirer and The Philippine Star, news programs 24 Oras (GMA-7), Aksyon (TV5), Network News (CNN Philippines) and TV Patrol (ABS-CBN 2), as well as relevant news websites from February 17 to 27, 2017.
Media had followed the events in the painful saga of the besieged senator and gave the arrest prominent time and space. For its part, television news programs showed footage taken as it happened, from of the issuing of the warrant and the arrest itself, adding clips of interviews with De Lima’s lawyer, Alex Padilla, legal experts and some senators. Some newscasts also reviewed the House inquiry on the Bilibid drug trade.
Newspapers headlined the development. But most reports in print sustained the political narrative, citing or airing statements from government officials who were involved in developing the case against De Lima such as Justice Secretary Vitaliano Aguirre, along with Atty. Ferdinand Topacio, the counsel for the Volunteers Against Crime and Corruption (VACC), a staunch supporter of the Duterte administration, who were among those who filed cases against De Lima.
Reports also went to the senator’s allies and supporters who decried the arrest: Vice President Leni Robredo, some LP senators, as well as international groups like the Human Rights Watch (HRW) and the Alliance of Liberals and Democrats Europe (ALDE).
The people had already seen the political vilification of the accused in the two houses of Congress. It was time for journalism to parse the basis of the accusation.
But focused on the word war, the coverage did not inquire into the validity of the charge itself. There was little done by the press to examine the basis of the judgment of probable cause and to establish what evidence the judge determined was sufficient to proceed to trial, effecting an immediate arrest with no bail.
Coverage followed the lead provided by the accused senator herself. As charges against her were filed in court, the senator questioned the jurisdiction of the regional trial court over her case, as a government official charged with crime.
Questioning the jurisdiction of the RTC while pertinent, was tactical. Only a few in the media made an effort to explore the issue. Unfortunately, like many legal issues there is no definitive answer. The law is what the judge says it is.
CNN Philippines Network News anchor Pia Hontiveros raised the matter in an interview on February 21 with Nilo Divina, dean of the University of Santo Tomas Faculty of Civil Law. According to Divina, “there is basis to hold that the RTC has jurisdiction,” and cited the failure of De Lima to secure from the Court of Appeals (CA) a temporary restraining order (TRO) to stop DOJ prosecutors from proceeding with the charges. It would have helped to get the defense lawyer to say something about this; but the show stayed only with Divina who added that the jurisdiction is dependent on the nature of the offense committed, and noted that “when it comes to drugs law, it is the RTC that has jurisdiction.”
The interview did not elaborate on this point further as the discussion moved on to the dean’s assessment of the strategy employed by the DOJ.The fact that three charges were filed instead of consolidating it into one case meant that the prosecution was trying to better their chances of securing a warrant of arrest against De Lima, Divina said.
TV5’s ReAksyon also made a similar effort in an interview on February 24 (Part 1 | Part 2) with Atty. DJ Jimenez, legal expert and founder of online pro bono legal site Pinoy Street Lawyer. Commenting on the jurisdiction issue, Jimenez explained that as a general rule, the Sandiganbayan handles cases involving graft and corruption against public officials under salary grade 27 (or higher).
But Jimenez said that this may not always be the situation, as preceding cases had shown. He also said De Lima’s failure to submit counter-affidavits led to uncontested accusations which made it easier for Judge Guerrero to cite probable cause.
Still on the question of jurisdiction, ABS-CBN News’ “Sandigan or RTC: Which court should handle De Lima’s cases” (February 24) sought the opinion of retired Sandiganbayan Presiding Judge Edilberto Sandoval. Sandoval said both the RTCs and Sandiganbayan may hear and try De Lima’s cases, citing two laws which uphold the two court’s jurisdiction over the charges against the senator.
The report mentioned RA 8249, which defines the jurisdiction of the Sandiganbayan, and RA 9165, the country’s anti-illegal drugs law.
According to report, RA 8249 specifies that the Sandiganbayan has jurisdiction over cases such as graft, direct, indirect and qualified bribery, and corruption of public officials including those classified as Grade 27 or higher. The law also provides that the Sandiganbayan has jurisdiction on “Other offenses or felonies whether simple or complexed with other crimes committed in relation to their office by the public officials and employees…” Note that De Lima’s rank of Cabinet secretary is Grade 31.
On the other hand, Article XI, Section 90 of RA 9165 states that “The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of this Act.”
To determine jurisdiction, Sandoval said one question must be resolved: “Could the offense have been committed if she was not secretary of justice?”
Sandoval then said that the parties may raise the jurisdictional question before the Supreme Court (SC) which has the final say on the issue. This De Lima had done: filing a petition before the SC on February 27 for a ruling on whether the RTC or the Sandiganbayan has jurisdiction over her cases.
The media reports relied mainly on airing the statements of the sources and the words they used to make their points.
More attention needed
As the legal issue is open to interpretation, the challenge to the media is to present theoretically the arguments of one or either interpretation. ABS-CBN News and ReAksyon were on the right track. But it is difficult to present a judicial dilemma with just sources speaking. Reports need to pre-distill the points of what is being said, which means the interviews need to be done much earlier and the process may require a lawyer at hand to be able to vet the journalistic account.
The expert speaking in legal terms is not always helpful. Dissecting the legal issues, the different ways of understanding the law requires preliminary research and for the journalist, a level of understanding of the various legal interpretations which may all be valid and sound.
This legal parsing is best done before the judicial action, before the judge speaks and makes a pronouncement.
As the SC is set to hear oral arguments on March 14 to decide on the senator’s petition on jurisdiction, media still has a chance to extend discussion and come up with more informative reports to guide the public on the matter. Politics can get into things, including judicial decisions.