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Republic of the Philippines HOUSE OF REPRESENTATIVES Quezon City, Metro Manila 17th Congress First Regular Session Minority Report 1.The Minority acknowledges receipt of the Committee on Justice’s Committee Report No. 14 dated 18 October 2016 detailing its findings following a series of hearings it conducted on House Resolution No. 105 entitled, “Resolution Calling for an Investigation, In Aid of Legislation, On the Proliferation of Drug Syndicates at the National Bilibid Prison.”

2.For purposes of this Dissent, the Minority adopts Committee Report No. 14’s summation of events pertinent to the Congressional Inquiry1 itself as well as its narration of antecedent facts.2 3.This Dissent concerns itself only with two issues. First, the Committee Report’s refusal to recommend the prosecution of Sen. Leila De Lima over her involvement in the drug trade at the NBP, and second, her criminal liabilities arising from such criminal involvement.

4.We will deal with the two issues one after the other.

A Congressional recommendation to prosecute Sen. De Lima does not overreach the House of Representatives’ jurisdiction and is wholly consistent with the principles of separation of powers and checks and balances in government.

5.As the Minority understands it, the Committee became reluctant to recommend Senator De Lima’s prosecution – after it had received the testimonies of a host of witnesses testifying to her criminal culpability because in the latter’s view – to do so is to breach of the principle of separation of powers.

6.The Congressional power of inquiry is expressly recognized in Section 21 of Article VI of the 1987 Constitution: 1

Committee Report No. 14, at 2-5.

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Committee Report No. 14, at 5-7.

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“The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be respected.”

7.This grant of power is premised on the necessity of information in legislation, such that it covers even officials of the executive, for as long as they possess information vital to the subject of the inquiry in aid of legislation. The power of inquiry is co-extensive with the power to legislate.3 8.This, according to jurisprudence, is the function of congressional inquiry in aid of legislation under the doctrine of separation of powers.

9.Thus the question now needs to be asked: under the doctrine of separation of powers, is Congress, in the course and at the conclusion of such a legislative inquiry, barred from recommending that certain persons covered by the inquiry be prosecuted by the Department of Justice?

10.We answer in the negative.

11.In an earlier landmark case, the Supreme Court had already recognized that the doctrine of separation of powers does not mean that the co-equal branches of government are totally distinct and separate from each other, such that they are to be treated as existing in air-tight compartments wholly disconnected from one another.

Instead, the High Court explained that: “The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government.” 4 12.The Supreme Court reinforced this idea in the contemporary case of Francisco v. House of Representatives, where it held that: “In passing over the complex issues arising from the controversy, this 3 Arnault

vs. Nazareno, G.R. No. L-3820, 18 July 1950.

4 Angara

v Electoral Commission, G.R. No. L-45081, July 15, 1936 (emphasis supplied). See also Arnault vs. Nazareno, G.R. No. L-3820, 18 July 1950.

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3 Court is ever mindful of the essential truth that the inviolate doctrine of separation of powers among the legislative, executive or judicial branches of government by no means prescribes for absolute autonomy in the discharge by each of that part of the governmental power assigned to it by the sovereign people.

At the same time, the corollary doctrine of checks and balances which has been carefully calibrated by the Constitution to temper the official acts of each of these three branches must be given effect without destroying their indispensable co-equality.

Taken together, these two fundamental doctrines of republican government, intended as they are to insure that governmental power is wielded only for the good of the people, mandate a relationship of interdependence and coordination among these branches where the delicate functions of enacting, interpreting and enforcing laws are harmonized to achieve a unity of governance, guided only by what is in the greater interest and well-being of the people. Verily, salus populi est suprema lex.” 5 13.Returning to the issue, when is the principle of separation of powers said to have been breached? The recent case of Belgica is instructive: “Broadly speaking, there is a violation of the separation of powers principle when one branch of government unduly encroaches on the domain of another. US Supreme Court decisions instruct that the principle of separation of powers may be violated in two (2) ways: firstly, "one branch may interfere impermissibly with the other’s performance of its constitutionally assigned function"; and "alternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to another." In other words, there is a violation of the principle when there is impermissible (a) interference with and/or (b) assumption of another department’s functions.”6 14.In Belgica, there are two ways in which the doctrine is breached: one, when one branch performs the functions properly belonging to another, or two, when one branch impermissibly interferes with or assumes the functions of another department.

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Francisco v House of Representatives, G.R. No. 160261, November 10, 2003. (emphasis supplied) 6

Belgica v. Executive Secretary, G.R. No. 208566, November 19, 2013. (emphasis supplied)

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4 15.Under this two-pronged test, by no means may a congressional recommendation to prosecute be taken as usurping or interfering with the functions belonging to the executive, in this case, the Department of Justice.

16.According to the venerable Oxford English Dictionary, the word recommend may be taken to mean to “advise, counsel, urge, exhort, enjoin, prescribe, argue for, back, support; suggest, advocate, propose.”

17.It is clear that the action that the Minority wishes the Committee to take is merely to urge, advise, or propose that the Department of Justice – which is part of a co-equal branch of government, the Executive – prosecute Sen. De Lima for certain acts and omissions she is alleged to have committed when she was Secretary of Justice.

18.Such a recommendation neither overreaches congressional jurisdiction nor arrogates unto itself the function that properly belongs to the Department of Justice.

In fact, it recognizes that the proposal or recommendation is subject to the proper exercise of discretion of the Department of Justice. It cannot in anyway be taken as substituting its judgment for that of the Department of Justice, the very act of usurping the latter’s functions.

19.It may be hazarded that while it respects the jurisdictional prerogatives of the Executive, Congress, in making the recommendation, expresses its deep indignation over the hideous facts unearthed in the course of its inquiry in aid of legislation. As representatives of the people, members of Congress perform the symbolic function of condemning such a rampant and brazen violation of the very laws that Congress had enacted for the protection and well-being of society. When it recommends prosecution, in this case it expresses the people’s own disgust at the corruption that has engulfed the national penitentiary.

20.Congress cannot close its eyes to the depth of depravity it had just uncovered at the NBP in the course of its legislative investigation.

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5 21.In fact, it may very well be argued that such a congressional recommendation is recognition of the constitutional provision that “a public office is a public trust.”7 22.And this is not exactly a novel idea and practice.

23.In the past, Congress, following a slew of congressional inquiries, aside from proposing legislative reforms, had also recommended the prosecution of key personalities at the heart of the legislative investigation.

24.To illustrate: in 1998, the Senate Committees on Accountability of Public Officers and Investigation (Blue Ribbon) and on National Defense and Security carried out a joint inquiry into the coup rumors and the alleged anomalies in the Armed Forces of the Philippines-Philippine Retirement Benefits Systems.

25.In its initial report of its investigation, the Senate Blue Ribbon Committee gave the following findings: “Essentially, the Blue Ribbon Committee found that the real estate purchases by RSBS were uniformly documented, by two (2) sets of instruments: Firstly, a unilateral covering the same piece of land, executed both by the seller and by RSBS as buyer. The price stated in the second bilateral instrument was invariably much higher than the price reflected in the unilateral deed of sale. The discrepancies between the purchase price booked by RSBS and the purchase price reflected in the unilateral deed of sale actually registered in the relevant Registry of Deeds, totaled about seven hundred three million pesos (P703 Million). The two sets of purchase price figures obviously could not both be correct at the same time. Either the purchase price booked and paid out by RSBS was the true purchase price of the land involved, in which case RSBS had obviously assisted or abetted the seller in grossly understating the capital gains realized by him and in defrauding the National treasury; or the purchase price in the unilateral deed of sale was the 7 The

Supreme Court held thus:

“Public office is a public trust. All government officials and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency act with patriotism and justice, and lead modest lives. This constitutional mandate should always be in the minds of all public servants to guide them in their actions during their entire tenure in the government service.

Upon appointment to a public office, an officer or employee is required to take his oath of office whereby he solemnly swears to support and defend the Constitution, bear true faith and allegiance to the same; obey the laws, legal orders and decrees promulgated by the duly constituted authorities; and faithfully discharge to the best of his ability the duties of the position he will hold.” City Mayor of Zamboanga v. Court of Appeals, G.R. No. 80270, February 27, 1990.

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6 consideration actually received by the seller from RSBS, in which case, the buyer-RSBS had grossly overpaid, with the differential, in the belief of the Senate Blue Ribbon Committee, going into the pockets of RSBS officials. A third possibility was that the differential between the purchase price booked and paid by the buyer-RSBS and the selling price admitted by the seller of the land, had been shared by the buyer and seller in some undisclosed ratio.�8 26.Accordingly, the Senate Blue Ribbon Committee recommended the prosecution or caused the prosecution of Gen. Jose Ramiscal Jr. (Ret), past AFPRSBS President, who had signed the unregistered deeds of sale covering the acquisition of certain parcels of land.

27.On the basis of this Congressional recommendation, Ombudsman Investigators Ricardo Sullano, Rodil Buenaventura, and Anatolio Alejandrino of the Office of the Deputy carried out an investigation and on the strength of their finding, stated that the following may be charged with falsification of public documents and violation of Section 3(e) and (g) of Republic Act (R.A.) No. 3019: petitioner B/Gen. Jose Ramiscal, Jr., former AFP-RSBS president; Atty. Meinrado Enrique Bello, Head of the AFP-RSBS Legal Department in charge of Land Acquisition; Capt.

Perfecto Enrique Quilicot, AFP-RSBS Project Officer, Tanauan, Batangas, Land Acquisition; and Notaries Public Alfredo Nasser and Manuel Satuito.9 28.In the Ramiscal case, the Supreme Court actually affirmed the actions taken by the Ombudsman in prosecuting the petitioner on the strength of the recommendation to prosecute issued by the Senate Blue Ribbon Committee.

29.The Minority can point to more recent instances when Congress, at the conclusion of a legislative inquiry, issued a recommendation to prosecute personalities embroiled in the controversies covered by the investigation. 10 30.The Minority thus, finds the Committee on Justice’s sudden change of heart utterly baffling.

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quoted in Ramiscal v. Sandiganbayan, G.R. Nos. 169727-28, August 18, 2006

Ramiscal v. Sandiganbayan, G.R. Nos. 169727-28, August 18, 2006.

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See for instance Cathy Yamsuan, Senate panel committee recommends plunder charge vs Arroyo, former PCSO boss, Philippine Daily Inquirer, January 17, 2012, available at: http:// newsinfo.inquirer.net/129627/senate-panel-committee-recommends-plunder-charge-vs-arroyo-formerpcso-boss <last visited October 26, 2016>; Patricia Lourdes Viray, Philippine Star, Feb. 2, 2016 Blue Ribbon wants plunder charges vs Binays, available at http://www.philstar.com/headlines/2016/02/02/1548916/blue-ribbon-wantsplunder-charges-vs-binays <last visited October 26, 2016>; Aie Balagtas See and Amita Legaspi, GMANEWSONLINE, Feb. 23, 2009, Senate seeks plunder charges vs Joc-Joc Bolante, 8 others, available at http://www.gmanetwork.com/news/story/149988/ news/nation/senate-seeks-plunder-charges-vs-joc-joc-bolante-8-others <last visited, October 26, 2016>.

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31.We now go to the second issue.

The pieces of evidence adduced warrant a Congressional Recommendation for the Prosecution of Sen. Leil De Lima and other officials for various criminal offenses in violation of various applicable laws.

32.The Minority dissents as to the decision of the Committee not to recommend the filing of applicable criminal cases against Senator Leila De Lima on allegations of her involvement with drug syndicates. The affidavits by several witnesses presented before the Committee on Justice are, in the view of the Minority, sufficient to justify the filing of criminal charges against her.

33.While the Minority understands that these affidavits alone are not enough to convict any person under the law, they are fairly consistent in themselves, and reflect a criminal design that should suffice for purposes of establishing probable cause.

34.As held in the 2013 case of Hasegawa vs Giron: 11 â&#x20AC;&#x153;A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed by the suspects.

It need not be based on clear and convincing evidence of guilt, not on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute certainty of guilt. In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. What is determined is whether there is sufficient ground to engender a wellfounded belief that a crime has been committed, and that the accused is probably guilty thereof and should be held for trial. It does not require an inquiry as to whether there is sufficient evidence to secure a conviction.â&#x20AC;?

35. By refusing to recommend her prosecution, the Committee is essentially putting weeks of hearings to waste, without resolving a problem that clearly exists in society, whether or not Senator de Lima is personally involved in such a horrendous scandal at the National Penitentiary.

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Hasegawa vs Giron, Gr No. 184536, 14 August 2013

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36.The Minority believes that the affidavits of key witnesses reveal that Senator de Lima may be prosecuted for the following six (6) crimes or offenses: (1) violations of Section 8 and Section 27 of Republic Act 9165, (3) Section 7(d) of Republic Act 6713, and (2) Section 8 of Republic Act 3019.

37.A perusal of the affidavits reveals that De Lima had (1) received funds from various drug lords and syndicates in order to protect their business and (2) to accommodate their comfortable lifestyle in the National Penitentiary. The following excerpts from the affidavits have led the Minority to such a belief: 38.According to the affidavit of Engelberto Durano, executed on October 5, 2016, Senator De Lima, through Ronnie Dayan, has been offering persons in the drug trade protection in exchange for financial considerations: “Sa aming mga pag-uusap ni RONNIE, napansin ko na palagi niyang nababanggit na may problema siya sa pera. Hindi ako nagdadalawang isip na tulungan siya sa tuwing magtetext siya sa akin na nanghihiram ng pera. Isang beses, tinawagan niya ako at sinabi na kung kailangan ko ng “proteksyon” sa aking “negosyo” ay tulungan namin si Secretary De Lima sa kanyang pangangampanya bilang senador sa taong 2016.

Sinabi ko agad sa kanya na mayroon akong kaibigang nakalaya na sa pagkakakulong at mayroon siyang malaking “negosyo” ng pagbebenta ng shabu sa Cebu. Tinutukoy ko noon ay si JEFFREY DIAZ alyas “JAGUAR.” Dahil dito, sinabi sa akin ni RONNIE na siya ay lubos na interesado na makausap si JAGUAR.”12 39.He even narrated a particular incident where he personally handed money to De Lima who was seen with the known drug lord Jaybee Sebastian: “Mula sa Building XI nilakad ko papunta sa area ng Commando habang dala-dala ang P1.5 Million. Pagdating sa area ng Commando dumiretso ako sa Bilibid TV Channel 3 (BTV3) na nagsisilbing opisina ni JAYBEE SEBASTIAN. Sa may pinto ay sinalubong ako ng isang lalake na nakaputing barong at tinanong niya ako “Ikaw ba si DURANO?” sagot ko “Opo, ako po.” Sinamahan ako ng lalakeng sumalubong sa akin na lumapit kay Secretary De Lima. Nang papalapit pa lang kami kay Secretary ay napansin ko na nakatingin sa amin si Secretary De Lima. Pagpasok ko sa opisina ng BTV3 ay nakita ko na naroon din si JAYBEE SEBASTIAN at HANS TAN. Inabot ko na kay Secretary De Lima ang kahon na may lamang P1.5 Million at sinabi “Ma’am, ito na po.” Kinuha ito ni Secretary at inabot sa lalakeng sumalubong sa akin. Matapos iyon ay umalis ako agad at bumalik sa aking kubol. Habang papalayo ako nakalingon ako sa kanya (Sec. De 12

Durano Aff. ¶6.

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9 Lima) at nakita ko na lumalakad siya na parang model papunta sa gitna ng poste na bakal sa BTV3, sabay hawak sa poste at sa kanyang scarf at nagsalita na “Ok ba Jaybee” na ang isang kamay ay nakataas at ang isa ay nasa baba. Ang nasa isip ko ay parang D.I. o Dance Instructor si Secretary kaya lang may edad na siya kaya T.I. na lang. Pagbalik ko sa aking kubol ay tinext ko si JAGUAR at sinabi na “Dong, Ok na.”13 40. The affidavit of Joel Capones, executed on September 9, 2016, confirms that as early as 2014, the drug lords were already cooperating with De Lima to fund her senatorial campaign. He stated: “Noong Enero 2014, pinatawag ulit ako ni Jaybee kasama ng mga mayor ng Sigue Sigue Sputnik. Sinabi sa akin ni Jaybee na kailangan na magbenta ng droga para matustusan ang kampanya ni Sec. De Lima sa 2016 dahil tatakbo itong senador. Iniutos din niya na alalayan ko ang mga mayor at tiyakin na mabayaran siya ng kumpleto.

Ipinaliwanag niya sa akin na kung matalo man si Sec. De Lima sa pagkasenador, siguradong magiging DILG Secretary naman ito dahil si Mar Roxas ang magiging pangulo.”

41.Capones explained that De Lima was able to collect drug money both within and outside of the New Bilibid Prison: “Noong buwan ng Pebrero 2014, ipinakilala sa akin ni Jaybee sa kanyang kubol na tinatawag na “Bahay na Bato” ang isang Jad De Vera na pamangkin raw ni Sec. De Lima, at siya raw ang magiging kolektor ng bentahan sa loob para kay Sec. De Lima. Sinabi ni Jad sa akin na Miyerkules at Sabado siya mangongolekta.

Para sa mga transaksyon sa loob ng Bilibid, araw-araw ay naniningil ako sa mga mayor at iniipon ko ang mga bayad at ito ay ibinibigay ko kay Jaybee. Sa mga transaksyon sa labas naman, ang pera ay kinukulekta ko sa mga katransaksyon naming sa labas na dumadalaw sa Bilibid at ibinibigay ko din kay Jaybee. Sa bawat pagdala ko sa kanya ay binibilang ni Jaybee ang pera sa kaniyang counting machine sa lamesa sa kaniyang kubol.”14

42.To bolster his testimony, he even recalls the bank account where Jaybee Sebastian purportedly deposited money for De Lima:

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Durano Aff. ¶17.

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Capones Aff. ¶7-8.

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“Noong Marso at Abril 2014, bilang dagdag pagpapatunay sa akin ni Jaybee na nagbibigay nga siya kay Sec. De Lima ay ipinakita niya sa akin ang apat na deposit slip sa BDO account number 000920421288.”15 43.Aside from the general protection that De Lima promised them, the drug lords would give money to De Lima to allow them to maintain their lavish lifestyle in prison. According to the affidavit of Reynante Diaz, executed on October 3, 2016: “….Nag-umpisa noong October 2013 hanggang katapusan ng November 2014 ang bigay namin na three (3) million kay Sec. DE LIMA. Maliban sa 3 million monthly, may one (1) million din para kay Secretary pag may big at special events si HERBERT sa loob ng Bilibid. Yung monthly na tatlong milyon, pag inaabot sa labas ng Bilibid, sa may paradahan sa baba sa Sunken Garden, si Joenel Sanchez kasama si RONNIE DAYAN ang tumatanggap ng 3 Million na nakabalot…Pagkatapos ko iabot kay JOENEL ang 3 million, tatawag agad si RONNIE DAYAN kay Secretary DE LIMA at minsan naka speaker phone, sasabihin ni RONNIE “MAM OK NA” tapos sagot naman ni Madam Secretary “OK SIGE BILISAN NIYO.” Pag nasigurado at narinig ko na ang boses ni Secretary, balik ako sa loob ng Bilibid…”16 44.These “special events” were confirmed by a former Officer in Charge of the Bureau of Corrections, Rafael Ragos, whose affidavit, executed on September 26, 2016, states: “During my tenure as Officer in Charge of the Bureau of Corrections, I also received several special requests from inmates such as long weekends, that is to allow their visitors to stay with them for a couple of days, entry of construction materials, and conduct of celebrations inside the NBP. Inmate Herbert Colanggo made several requests to conduct a celebration inside the NBP. In making some of his requests, he told me that “Alam na ni secretary yan,” referring to Sec. De Lima.

I would casually mention such celebration requests, including the request of Inmate Colanggo, to Sec. De Lima whenever I have the opportunity to tell her, to which she would normally respond with a nod.”17

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Capones Aff. ¶11.

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Diaz Aff. ¶21.

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Ragos ¶10-11.

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11 45.As to the first ground, Senator De Lima may be prosecuted as a protector or coddler of drug traffickers/manufacturers/lords. Section 8 of RA 9165 or the Comprehensive Dangerous Drugs Acts of 2002 provides: “Section 8. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall engage in the manufacture of any dangerous drug. xxxx The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a "protector/coddler" of any violator of the provisions under this Section.” (Emphasis supplied).

46.Based on the affidavit of Engelberto Durano, De Lima would qualify as a protector or coddler of drug manufacturers.

47.According to his affidavit, Durano met De Lima’s driver Ronnie Dayan around the year 2011. Throughout their discussions, Dayan informed Durano that De Lima could help protect Durano’s (drug) business if they helped her solicit campaign funds for the 2016 Senatorial Election.18 48.To this end, he introduced Dayan to his friend Jaguar who had a drug business in Cebu.19 Later, Jaguar called on Durano to deliver money to De Lima.

Durano admits that he personally delivered P1.5 million to Senator De Lima, who was, at the time, with Jaybee Sebastian and Hans Tan, known drug lords.20 Furthermore, according to the testimony of Joel Capones, he worked with Jaybee Sebastian in the drug trade under the promise of protection of De Lima.21 The protection of De Lima was supposedly in exchange for funds for her campaign. These facts tend to show that De Lima was being given money in exchange for “protection” of the business of drug lords.

49.Further, by receiving money from the proceeds of drug trade, De Lima may be held liable under Section 27 of the same law. The provision reads: 18

Durano Aff. ¶6.

19

Durano Aff. ¶6.

20

Durano Aff. ¶17.

21

Capones Aff. ¶3.

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“Section 27. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication or Failure to Account for the Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment Including the Proceeds or Properties Obtained from the Unlawful Act Committed. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00), in addition to absolute perpetual disqualification from any public office, shall be imposed upon any public officer or employee who misappropriates, misapplies or fails to account for confiscated, seized or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful acts as provided for in this Act. Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs as prescribed in this Act, or have received any financial or material contributions or donations from natural or juridical persons found guilty of trafficking dangerous drugs as prescribed in this Act, shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government, its divisions, subdivisions, and intermediaries, including government-owned or – controlled corporations.” (Emphasis supplied) 50.Further such actions tend to violate Section 7 of Republic Act 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees, which provides:

“Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public officials and employees now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public official and employee and are hereby declared to be unlawful: (d) Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of monetary value from any person in the course of their official duties or in connection with any operation being regulated by, or any transaction which may be affected by the functions of their office.”

(Emphasis supplied) 12

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51.Moreover, receiving money can also constitute bribery, direct or indirect.

The Revised Penal Code provides: “Article 210. Direct bribery. - Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of this official duties, in consideration of any offer, promise, gift or present received by such officer, personally or through the mediation of another, shall suffer the penalty of prision mayor in its medium and maximum periods and a fine of not less than the value of the gift and] not less than three times the value of the gift in addition to the penalty corresponding to the crime agreed upon, if the same shall have been committed. xxx Article 211. Indirect bribery. - The penalties of prision correccional in its medium and maximum periods, and public censure shall be imposed upon any public officer who shall accept gifts offered to him by reason of his office.”

52.These provisions prohibit public officers from receiving proceeds from the trafficking of dangerous drugs. The affidavit of Reynante Diaz states that De Lima was receiving at least P3 million pesos per month from Herbert Colanggo.22 53.Too, she would receive an extra P1 million whenever he would host special events in Bilibid.23 These “special events” were also the subject of the affidavits of Ragos24 and Diaz.25 The affidavits thus consistently show that De Lima was receiving money in exchange for allowing drug lords to live comfortably in Bilibid.

Even though there are other persons in charge of the prisons, such as the Bureau of Corrections, the consideration for the money being handed to her was to acquiesce to such activities which are supervised by her position as DOJ Secretary.

54.De Lima may further be held liable under Section 8 of RA 3019 or the AntiGraft and Corrupt Practices Act for granting special privileges to various drug lords within the New Bilibid Prison. Specifically, Section 8 provides: “Section 8. Dismissal due to unexplained wealth. If in accordance with the provisions of Republic Act Numbered One thousand three hundred 22

Diaz Aff. ¶21.

23

Diaz Aff. ¶21.

24

Ragos Aff ¶10, 11.

25

Diaz Aff. ¶13.

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14 seventy-nine, a public official has been found to have acquired during his incumbency, whether in his name or in the name of other persons, an amount of property and/or money manifestly out of proportion to his salary and to his other lawful income, that fact shall be a ground for dismissal or removal. Properties in the name of the spouse and unmarried children of such public official may be taken into consideration, when their acquisition through legitimate means cannot be satisfactorily shown. Bank deposits shall be taken into consideration in the enforcement of this section, notwithstanding any provision of law to the contrary.”

55.Assuming it cannot be proven with certainty why De Lima has been receiving large sums of money, she can still be liable for having unexplained wealth.

Section 8 of RA 3019 provides that it is unlawful to receive such sums of money whether in her name or in the name of other persons. Thus, whether money is handed directly to De Lima26 or to any of her confidants,27 she must explain how she was able to raise so much money for her electoral run so quickly.

CONCLUSION 56.A congressional recommendation to prosecute a public official for criminal acts and/or omission is consistent with the principles of separation of power and check and balance in government. Exercised properly as a symbolic expression of the sense of the people’s exasperation over official misconduct, it can be a tool of good governance, consistent with the constitutional principle that a public office is a public trust.

57.Unfortunately, the Committee on Justice, in Committee Report No. 14, missed the opportunity to discharge the Congressional sense of public accountability in the case of a public official embroiled in the drug trafficking scandal at the National Penitentiary – Sen. Leila De Lima – when it failed to recommend prosecution for her grave misdeeds in the discharge of her functions as Secretary of Justice.

27 October 2016 Office of the Minority House of Representatives 17th Congress

26

Capones Aff. ¶11; Durano Aff. ¶17.

27

Capones Aff. ¶7-8.

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DANILO E. SUAREZ Minority Floor Leader

H. HARRY L. ROQUE, JR. Deputy Minority Floor Leader

ANTHONY M. BRAVO Deputy Minority Floor Leader

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