Copy of the Supplement to the Motion to Quash with Urgent Omnibus Motion for Muntinlupa RTC Br. 204

REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT MUNTINLUPA CITY BRANCH 204

PEOPLE OF THE PHILIPPINES, Plaintiff, - versus -

Criminal Case No. 17-165

LEILA M. DE LIMA, RAFAEL MARCOS Z. RAGOS, AND RONNIE PALISOC DAYAN, Accused. x-------------------------------------- x

SUPPLEMENT TO THE MOTION TO QUASH WITH URGENT OMNIBUS MOTION: (1) TO HOLD IN ABEYANCE THE SCHEDULED ARRAIGNMENT ON 16 NOVEMBER 2017; AND (2) FOR THE INHIBITION OF PRESIDING JUDGE (EX ABUNDANTI AD CAUTELAM) Accused LEILA M. DE LIMA, by special and limited appearance through undersigned counsel, respectfully states that: 1. On 17 February 2017, an Information was filed by the DOJ Panel of Prosecutors purporting to charge accused De Lima, along with former acting Bureau of Corrections (“BuCor”) chief Rafael Ragos, and Senator De Lima’s former security aide Ronnie Dayan with Illegal Drug Trading under Section 5, and defined under Section 3 Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002). The accusation of the DOJ Panel runs as follows: That within the period from November 2012 to March 2013, in the City of Muntinlupa, Philippines, and within the jurisdiction of this Honorable Court, accused Leila M. De Lima, being then the Secretary of the Department of Justice, and accused Rafael

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Marcos Z. Ragos, being then the Officer-In-Charge of the Bureau of Corrections, by taking advantage of their public office, conspiring and confederating with accused Ronnie P. Dayan, being then an employee of the Department of Justice detailed to De Lima, all of them having moral ascendancy or influence over inmates in the New Bilibid Prison, did then and there commit illegal drug trading, in the following manner: De Lima and Ragos, with the use of their power, position and authority, demand, solicit and extort money from the high profile inmates in the New Bilibid Prison to support the Senatorial bid of De Lima in the May 2016 election; by reason of which, the inmates, not being lawfully authorized by law and through the use of mobile phones and other electronic devices, did then and there wilfully and unlawfully trade and traffic dangerous drugs, and thereafter give and deliver to De Lima, Through Ragos and Dayan, the proceeds of illegal drug trading amounting to Five Million (P5,000,000.00) Pesos on 24 November 2012, Five Million (P5,000,000.00) Pesos on 15 December 2012, and One Hundred Thousand (P100,000.00) Pesos weekly “Tara” each from the high profile inmates in the New Bilibid Prison.” (Emphasis supplied) 2.

On 20 February 2017, the case was raffled to this court.

3. In the afternoon of the same day, accused De Lima promptly filed a Motion to Quash, raising the following matters, among others: 3.1 The issue of the RTC’s lack of jurisdiction because it is the Sandiganbayan that exclusively hears the criminal case of a public official with a minimum Salary Grade of 27 [such as the DOJ Secretary], and that “public office” is either an element of the offense charged, or that the crime alleged is committed in relation to it; and

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3.2 The fact that the allegations and the recital of facts, both in the Information and in the DOJ Joint Resolution, do not allege the corpus delicti of illegal drug trading.1 4. The said Motion to Quash was scheduled for hearing on 24 February 2017, but the DOJ Panel filed a Motion to Reset the abovescheduled hearing to 03 March 2017.

5. However, on 23 February 2017, despite the pendency of the Motion to Quash, which seriously impugns the jurisdiction of this court and incidentally prays for a suspension of the proceedings in the meantime, this court issued an Order finding probable cause for Illegal Drug Trading on the part of the three (3) accused, including accused De Lima, for which the Warrant of Arrest, dated the same day, was issued. In the morning of 24 February 2017, the Warrant of Arrest was served upon accused De Lima by the elements of the PNP-CIDG. She is now detained at the PNP Custodial Center at Camp Crame, Quezon City, pursuant to a commitment order issued by this court.

6. On 27 February 2017, aggrieved by the acts and omissions of this court, which amounted to gross violations of accused De Lima’s substantive and procedural rights, accused De Lima filed a Petition for Certiorari and Prohibition under Rule 65 of the 1997 Rules of Civil Procedure before the Supreme Court, which was docketed as G.R. No. 299781, entitled “De Lima v. Judge Guerrero, et al.”

7. Therein respondents, including the presiding judge of this court, through the Office of the Solicitor General (“OSG”), filed their Comment dated 3 March 2017 to the Petition, wherein, in blatant disregard of §14(2)2 of Article III of the Constitution and §§6,3 8,4 9,5 1

In the same Motion, Senator De Lima likewise placed on record some of her observations that, at any rate, the evidence on record does not justify the filing of the subject case in court.

2 Section 14.2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.

(Emphasis added.)

3 Section 6. Sufficiency of complaint or information. — A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the complaint or information. (6a) 4 Section 8. Designation of the offense. — The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its

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and 14 6 of Rule 110 of the Rules of Court, respondents offered an entirely different understanding of the charge against accused De Lima.

8. The OSG stated, in various portions of its Comment,7 that the charge against the accused De Lima is not “Trading in Dangerous Drugs” penalized under Section 5 of RA 9165, but mere conspiracy to commit the same offense, or “Conspiracy to Commit Trading in Dangerous Drugs”, as provided in Section 26 (b) of the same law.

This bold statement flies in the face of the Information, the Warrant of Arrest, and all the previous actions of the DOJ. 9. The Information filed by the DOJ Panel charges Accused De Lima “for violation of Section 5, in relation to Section 3 (jj), Section 26 (b) and Section 28, Republic Act No. 9165”, specifically Illegal Drug Trading, a consummated crime. Without any regard for the DOJ’s actions, the OSG’s Comment categorically states that Accused De Lima is actually “accused of conspiracy to commit trading of illegal drugs under Sec. 26 (b) in relation to Section 3 (jj) of R.A. No. 9165”, 8 thereby dropping the charge of consummated trading in dangerous drugs penalized under Section 5, and unceremoniously supplanting it with the supposed offense of conspiracy to commit trading in dangerous drugs, an offense for which no one has ever been charged.

10. Everybody is aware that these charges are fundamentally incompatible. The OSG itself initially admitted such incompatibility

qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (8a) 5 Section 9. Cause of the accusation. — The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. (9a) 6 Section 14. Amendment or substitution. — A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. (n) If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. (14a) 7 Pars. 65, (p. 27), 155 (p. 62) and 157 (p. 63) of the OSG’s Comment.

8 OSG Comment, p. 27, par. 65; p. 43, par. 105; p. 45, par. 112.

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in its Comment before the Supreme Court9; Accused De Lima voiced out the inconsistency during the Oral Arguments10 and again in her Memorandum.11 11. On 19 October 2017, accused De Lima, by counsel, received the Decision promulgated by the Supreme Court on 10 October 2017 (“Decision”), the dispositive portion of which states: WHEREFORE, the instant petition for prohibition and certiorari is DISMISSED for lack of merit. The Regional Trial Court of City, Branch 204 is ordered to proceed with dispatch with Criminal Case No. 17-165.

12. However, although the Decision appears to dismiss accused De Lima’s petition for lack of merit, the plurality of votes of the members of the Supreme Court En Banc, even those who purportedly make up the “majority” who voted to dismiss the case, did not yield a majority, much less unanimity as to the nature of the charge against herein accused.

13. Noting such lack of agreement even among the Supreme Court justices themselves, accused De Lima, by counsel, filed a Motion for Reconsideration on 3 November 2017, a copy of which is attached herewith as Annex “1”, arguing as follows: 7.

On a matter as simple and important as the sufficiency of the Information in apprising the Petitioner of the nature of the offense she is facing, only five (5) of the nine (9) justices agree that the crime charged is Illegal Drug Trading (the original accusation of the DOJ), not Conspiracy to Commit Drug Trading (the subsequent accusation of the OSG).

8.

In fact, three (3) justices, in their Separate Concurring Opinions, understand the Information as charging the crime of Conspiracy to Commit Drug Trading, an entirely different offense as everyone who has taken up basic criminal law will certainly know.

9.

On the other hand, one member of the Honorable Court remains vague about whether the 9 10 11

Pars. 65, (p. 27), 155 (p. 62) and 157 (p. 63) of the OSG’s Comment dated 3 March 2017.

TSN of Oral Arguments Day 1, 14 March 2017, pp. 5 to 13.

Pars. 15 to 28 of Petitioner’s Memorandum dated 17 April 2017.

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Information charges Illegal Drug Trading or Conspiracy to Commit Drug Trading.

10. Justices Velasco, Bersamin, Martires, Reyes, and Gesmundo voted together to hold Petitioner in continued pre-trial detention for Illegal Drug Trading. Justices De Castro, Tijam, and Peralta categorically stated that the offense charged is Conspiracy to Commit Drug Trading.

11. Justice Del Castillo’s position, on the other hand, is somewhat of a puzzle. In the opening paragraph of page 3 of his separate concurring opinion, the Justice states that the crime charged is “conspiring to engage in trading of illegal drugs.” A mere four (4) paragraphs later, he declares that the offense was “trading and trafficking of illegal drugs in conspiracy with her co-accused.” xxx xxx xxx 13.

Petitioner, therefore, invites the Honorable Court to look into the Summation of Votes because the distribution of the votes goes into the binding effect of the Decision and, consequently, impacts the right of the Petitioner to be immediately released.

14.

Bluntly put, in the absence of a majority to sustain the validity of the Information, Petitioner is entitled to an immediate release from pre-trial detention as a matter of right. In Javellana v. Executive Secretary, while the insufficiency in the number of votes led to the unfortunate validation of the 1973 Constitution, in this case, a similar insufficiency in the number of votes to sustain the Information ought to lead to a fortunate result—the immediate release of Petitioner.

15.

Ordinarily, a majority vote of the Members of the Honorable Court is sufficient to declare legal victory for a party in whose favor the majority voted. In civil cases, for example, the fact that the majority has differing legal views or approaches to a case generally has little impact in the determination of the disposition of the case. A majority of eight (8) justices with

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separate concurring opinions does not affect the binding nature of the result.

16.

However, such rule does not apply in criminal cases, and in particular, the case at bar where the allegations are incoherent and contested by the Members of the Honorable Court. If a majority of the Members of the Honorable Court itself cannot agree on the nature of the criminal charges, it can only mean that there is no valid Information to sustain Petitioner’s pre-trial detention.

17.

First. The absence of a majority on the nature of the charges against Petitioner is the clearest possible indicator—coming from the Supreme Court itself—that the accusation “is blatantly a pure invention” and “a fake charge,” to borrow from Justice Carpio. This is an institutional admission of the gravest consequence.

18.

Second. If the members of the majority could not even agree on the nature of the accusation reflected in the Information, such fact is an objective indicator that respondent judge could not possibly have had probable cause to issue the warrant of arrest against Petitioner.

19.

If at least three members of the nine justices constituting the majority that voted against Petitioner believe that the charges are for Conspiracy to Commit Drug Trading, then it only follows that they must have concluded that respondent judge issued a warrant of arrest for an entirely different, and wrong, case. To keep Petitioner in continued pre-trial detention is patent abuse of judicial authority.

20.

Third. If the Members of the Honorable Court diverge on the meaning of the accusation, then we all can agree that Petitioner’s constitutional right to know the nature and cause of the accusation against her has been violated.

21.

Thus, by the standards of the divided opinion of a majority of the Members of the Honorable Court, they have already foretold the acquittal of the accused.

7

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If this is not a justification for Petitioner’s release, then perhaps nothing can ever be.

22.

For sure, the inherent incompatibility in the positions of the majority of the Members of the Honorable Court is a relevant input because Petitioner is not responsible for it; it reflects the internal conflict even among those who support Petitioner’s continued incarceration.

23.

If another ridiculous complication were necessary, it is important to point out that the Department of Justice, in its 10 March 2017 Comment to the Petitioner’s Motion to Quash before the respondent judge, manifested before her that they were adopting the position of the OSG that the Information in fact charges the accused with Conspiracy to Commit Drug Trading under Section 26(b) instead of Trading in Illegal Drugs under Section 5.

24.

We, therefore, face a situation where the DOJ originally charged Petitioner with Trading in Illegal Drugs, which charge was later “re-angled” into a Conspiracy to Commit Drug Trading, which in turn is incompatible with the ponente’s (and four other Members’) understanding of the Information, which they believe charges Trading in Illegal Drugs. This is a circus only madmen can enjoy. (citations omitted) 14. Despite the pendency of such issue, accused De Lima, through counsel, received an Order from this court setting her arraignment on 16 November 2017, at 2:00 o’clock in the afternoon.

15. In light of the pendency of the issue raised by accused De Lima in her Motion for Reconsideration before the Supreme Court, i.e., the proper legal effect of the lack of agreement of the members of the Supreme Court as to the nature of the charge against her, accused De Lima hereby moves to hold in abeyance the scheduled arraignment.

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MOTION TO HOLD IN ABEYANCE THE SCHEDULED ARRAIGNMENT ON 16 NOVEMBER 2017 16.

Article III, Section 14 of the Constitution states: SECTION 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

17.

Rule 115, Section 1 of the Rules of Court reiterates these rights, particularly: RULE 115 Rights of Accused Section 1. Rights of accused at the trial. — In all criminal prosecutions, the accused shall be entitled to the following rights: xxx xxx xxx (b) To be informed of the nature and cause of the accusation against him.

18.

Rule 116, Section 1 gives substance to the right of the accused to be informed of the nature and cause of the accusation by laying down, as one of the requirements of a valid arraignment, the following: RULE 116 Arraignment and Plea Section 1. Arraignment and plea; how made. — (a) The accused must be arraigned before the court where the complaint or information was filed or

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assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information.

19. The purpose of such requirement is to ensure that the accused is adequately informed of the charge against her, so as to enable her to enter a proper plea and mount an intelligent defense against it. Otherwise, an invalid arraignment cannot lead to a valid trial or judgment.12 20. In the words of the Supreme Court in the case of Dr. Mendez v. People,13 in discussing the rights of the accused: One of these rights is the constitutional right of the accused to be informed of the nature and cause of accusation against him, a right which is given life during the arraignment of the accused of the charge of against him. The theory in law is that since the accused officially begins to prepare his defense against the accusation on the basis of the recitals in the information read to him during arraignment, then the prosecution must establish its case on the basis of the same information. (emphasis supplied) 21. It is clear, therefore, that proceeding with the arraignment, while the precise question of what is the nature of the charge against accused De Lima, would be a gross violation of her constitutional right to be accorded due process of the law, and to be informed of the nature of the charge against her. If not even the members of the Supreme Court, reading the exact same Information, can agree on the nature of the charge, how can this court validly claim that the arraignment it has scheduled would properly apprise the accused of the nature of the charge against her, enable her to enter a provident plea, and mount an intelligent defense.

12 13

People v. Durango, G.R. No. 135438-39, April 5, 2000 citing People vs. Estomaca, 256 SCRA 421.

Dr. Joel C. Mendez v. People, et al., G.R. No. 179962, June 11, 2014.

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22. Furthermore, it is also reiterated that there remains to be a challenge to this Court’s jurisdiction as provided in the Motion to Quash.

23. Thus, it is incumbent upon this court to hold in abeyance the scheduled arraignment. Otherwise, such an act would be tantamount to this court pre-empting the Supreme Court and arrogating unto herself the authority to have a final say on the jurisprudential effect of the Supreme Court’s Decision.

MOTION FOR THE INHIBITION OF JUDGE GUERRERO 24.

Accused De Lima moves for the inhibition of Judge Guerrero on the grounds of evident partiality and evident bad faith as manifested by the acts and omissions of said presiding judge that exhibit an undue haste in ensuring the detention and deprivation of liberty of the accused.

25.

Article III, Section 14 of the Constitution guarantees the right of the accused to, among others, an impartial trial.

26.

Judge Guerrero, as shown by the blatant and repeated violations of accused De Lima’s constitutional rights exhibited and evident her lack of impartiality and betrayed her bad faith in the handling of accused De Lima’s case, as will be detailed below.

27.

Section 1 of the same Article of the Constitution guarantees that “[n]o person shall be deprived of life, liberty or property without due process of law.”

28.

Section 2 of the same Article further guarantees that no “warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce….”

29.

In the case of Lim, Sr. v. Felix,14 the Supreme Court laid down the extent of the “personal determination” that the judge is required to perform: 14

272 Phil. 122 (1991).

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The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for the complainant and witnesses themselves to answer the court's probing questions when the circumstances of the case so require.

It is worthy to note that petitioners Vicente Lim, Sr. and Susana Lim presented to the respondent Judge documents of recantation of witnesses whose testimonies were used to establish a prima facie case against them. Although, the general rule is that recantations are not given much weight in the determination of a case and in the granting of a new trial (Tan Ang Bun v. Court of Appeals, et al. G.R. No. L-47747, February 15, 1990, People v. Lao Wan Sing, 46 SCRA 298 [1972]) the respondent Judge before issuing his own warrants of arrest should, at the very least, have gone over the records of the preliminary examination conducted earlier in the light of the evidence now presented by the concerned witnesses in view of the "political undertones" prevailing in the cases. Even the Solicitor General recognized the significance of the recantations of some witnesses when he recommends a reinvestigation of the cases, to wit: It must be pointed out, however, that among the documents attached to this Petition are affidavits of recantation subsequently executed by Jimmy Cabarles and Danilo Lozano and an affidavit executed by one, Camilo Sanano, father of the complainant's witnesses, Renato and Romeo Sanano. It was precisely on the strength of these earlier written statements of these witnesses that the Municipal Trial Court of Masbate found the existence of a prima facie case against petitioners and accordingly recommended the filing of a Criminal Information. Evidently, the same written

12

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statements were also the very basis of the "Fiscal's Certification", since the attached affidavits of recantation were not yet then available. Since the credibility of the prosecution witnesses is now assailed and put in issue and, since the petitioners have not yet been arraigned, it would be to the broader interest of justice and fair play if a reinvestigation of this case be had to secure the petitioners against hasty prosecution and to protect them from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the State from useless and expensive trials (Salonga v. Paño G.R. No. 59524, February 18,1985). (Rollo of G.R. Nos. 9405456, pp. 200-201) We reiterate that in making the required personal determination, a Judge is not precluded from relying on the evidence earlier gathered by responsible officers.

The extent of the reliance depends on the circumstances of each case and is subject to the Judge's sound discretion. However, the Judge abuses that discretion when having no evidence before him, he issues a warrant of arrest. (Emphasis supplied) 30.

In the case of Allado v. Diokno,15 the Supreme Court had another occasion to pass upon a case wherein “[o]n balance at the fulcrum … are the intrinsic right of the State to prosecute perceived transgressors of the law, which can be regulated, and the innate value of human liberty, which can hardly be weighed.” In framing the issue laid down before it, the Court stated that: This petition gives us an opportunity to revisit the concept and implication of probable cause, the existence of which is necessary for the prosecutor to have an accused held for trial and for a trial judge to issue a warrant for his arrest. It is mandatory therefore that there be probable cause before an information is filed and a warrant of arrest issued. Unfortunately, however, at times a criminal case is filed, a warrant of arrest issued and a person consequently incarcerated on unsubstantiated allegations that only feign probable cause. (Emphasis supplied) 15

301 Phil. 213 (1994).

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31.

In said case, and similar to the present case, the Office of the Solicitor General attempted to argue “that the determination of probable cause is a function of the judge who is merely required to personally appreciate certain facts to convince him that the accused probably committed the crime charged.” 16 The Supreme Court in said case was careful and circumspect in laying down the extent and limits of the discretion given to the judge in making such determination – and such discretion clearly ends and is limited by the guarantees of the Constitution, particularly Section of Article III, to wit: Section 2, Art. III, of the 1987 Constitution, lays down the requirements for the issuance of a warrant of arrest, i.e., a warrant of arrest shall issue only upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. xxx xxx xxx Pilapil v. Sandiganbayan sets a standard for determining the existence of probable cause. While it appears in that case that we have granted the prosecutor and the trial judge seemingly unlimited latitude in determining the existence of absence of probable cause by affirming the long-standing procedure that they can base their findings merely on their personal opinion and reasonable belief, yet, this permissiveness should not be interpreted as giving them arbitrary powers and letting them loose in the determination of the existence of probable cause, a delicate legal question which can result in the harassment and deprivation of liberty of the person sought to be charged or arrested. xxx xxx xxx xxx Accordingly, before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof. In the Order of respondent judge dated 11 February 1994, it is expressly stated that "[t]his court after careful evaluation of the evidence on record, believes and rules that probable cause exists; and therefore, a warrant of arrest should be issued."

16

Ibid.

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However, we are unable to see how respondent judge arrived at such ruling. We have painstakingly examined the records and we cannot find any support for his conclusion. On the contrary, we discern a number of reasons why we consider the evidence submitted to be insufficient for a finding of probable cause against petitioners. (Emphasis supplied. Citations omitted.)

32.The following is clear from the foregoing: 31.1 First, while the judge has the discretion to determine for herself the extent of her personal determination of the records of the case to determine probable cause, such discretion is not absolute; the limits of such discretion is the protection guaranteed under the Constitution, and the exact extent of personal determination depends on the circumstances of each case.

31.2 Second, the judge will be deemed to have abused such discretion if, given the circumstances of the case, she fails to secure accused De Lima against hasty prosecution and protect her from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and to protect the State from useless and expensive trials, by issuing a warrant of arrest without first addressing the issues that have been raised before her that put into question the existence of probable cause.

31.3 Third, that the presence of “political undertones prevailing in the cases� is considered as a legitimate consideration that affects how closely the judge ought to look at the evidence presented before her as basis for her determination of the existence of probable cause for the purpose of issuing a warrant of arrest.

31.4 Fourth, the fact that the accused puts forth before the judge such facts or evidence that cast in doubt the prosecution evidence presented against them (e.g., recantation statements) is sufficient to obligate the judge to consider such evidence in determining the existence of probable cause.

31.5 Fifth, the existence of other circumstances may even make it incumbent upon Judge Guerrero to “call for the complainant

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and witnesses themselves to answer the court’s probing questions when the circumstances of the case so require.

33. In this case, Judge Guerrero did no more than pay superficial lip service to the constitutional guarantees set forth above, when she brushed aside the inconsistencies in the testimonies relied on the prosecution, and the issues that accused De Lima herself timely raised, which issues went directly towards casting doubt on the very existence of probable cause. Instead, she displayed an unseemly and undue haste in ensuring the detention of accused De Lima, that transcended “mere grave abuse of discretion”, but, in fact, betrayed her evident partiality and bad faith, to wit: 32.1 Judge Guerrero utterly, miserably and unjustly decided not to take steps to probe the credibility of the evidence presented against accused De Lima in light of the apparent political undertones prevailing in the case, as clearly shown by the public persecution and shaming suffered by accused De Lima at the hands of the most powerful officials from two branches of government, long before the cases were even filed against her before the Department of Justice.

32.2 This is not the case where Judge Guerrero issued the warrant of arrest without being aware of the doubts raised by accused De Lima, i.e., before a Motion to Quash has been filed.

When she issued the assailed orders on 23 February 2017, her attention was already called on various issues that cast doubt on the propriety of the issuance thereof through accused De Lima’s Motion to Quash, which was filed three days before or on 20 February 2017.

32.2.1 Her lack of jurisdiction over the subject matter of the charge, which would have negated her authority to assume jurisdiction over the person of the accused by the issuance of a warrant of arrest.

32.2.2 The lack of authority of the DOJ prosecutors to file the case, as such belonged to the Office of the Ombudsman.

32.2.3 The insufficiency of the allegations in the Information to support the charge of violation of the Comprehensive Dangerous Drugs Act.

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32.2.4 The inconsistency between the acts alleged to constitute the offense, and the offense ostensibly charged.

32.2.5 The inconsistency in the testimonies submitted the prosecution to support the charge, which members of the Honorable Court themselves readily saw when they went through the records of the case.

32.2.6 The questions raised as to the credibility of the purported witnesses, i.e., the fact that they are criminals convicted of committing crimes involving moral turpitude, and their motive to fabricate their testimony against accused De Lima, i.e., their axe to grind against her for putting an end to their luxurious lifestyle inside the NBP and the fact that they are under the physical and legal custody of government officials who are intent on persecuting accused De Lima.

34.

The glaringly clear, single-minded over-eagerness to detain accused De Lima based on an invalid Information that is irredeemably and irreparably tainted and made defective by, among others, the rampant and blatant violation of Accused De Lima’s rights, is quote evident. An impartial judge, acting on the red flags indicating serious infirmities and irregularities that attended the preliminary investigation of the case, would have given greater respect and protection to the accused constitutional rights.

35.

In other words, she was squarely in the situation envisioned in the Lim case, when it said that the judge “should call for the complainant and witnesses themselves to answer the court’s probing questions when the circumstances of the case so require.”

36.

Yet, despite all these, Judge Guerrero attempted to pass herself as compliant with her judicial duties under the Constitution by the mere artifice of stating in the order that she reviewed the records of the case.

37.

It must be pointed out that this is not a simple case with straightforward records that are easy to sift through.

36.1 The criminal case raffled to Judge Guerrero’s court on 20 February 2017 arose from four (4) cases that were

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consolidated during the preliminary investigation stage.

Such consolidated cases resulted in voluminous records and a Joint Resolution that produced not one, not two, but three (3) separate Information, each of which sought to charge accused De Lima, along with different sets of coaccused, with different acts constituting separate offenses.

36.2 Yet, Judge Guerrero purportedly examined its entirety, noted the various inconsistencies therein, was able to weigh the credibility of witnesses that neither she nor prosecutors were able to personally examine, balanced it in light of the circumstances brought to her attention by accused De Lima’s Motion to Quash, and, thereafter, determined that there nonetheless exists probable cause to issue warrant of arrest.

36.3 All these in a span of, at most, three (3) days between the raffle of the case and the issuance of the assailed orders. And all these when, even the esteemed Solicitor General, who had several weeks to prepare for oral arguments before the Honorable Supreme Court, admitted during the oral arguments that he has not had opportunity to read all of the affidavits.

38.

To say that it is doubtful that judge did, indeed, in the span of less than 72 hours was able to: (1) read the entire records of the case; (2) discovered and compared the apparent inconsistencies in the testimonies of the purported witnesses; and (3) judiciously weighed the implications of such inconsistencies. It is much less convincing that she, being fully aware of the issues raised in accused De Lima’s Motion to Quash, likewise considered such arguments and found probable cause despite all the suspicious circumstances that ought to have put her on notice that a thorough, independent and impartial judicial determination of probable cause is imperative before a warrant of arrest could be issued.

39.

The inescapable conclusion is that Judge Guerrero acted with evident partiality and bad faith in compounding the violations of constitutional rights suffered by accused De Lima.

40.

Even Supreme Court Associate Justice Benjamin Caguioa noted the acts of Judge Guerrero that made a travesty of accused De Lima’s constitutional rights, thus:

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(1) She issued the warrant of arrest against Petitioner despite the patent defects evident on the face of the Information; (2) She made a determination of probable cause for violation of RA 9165 against Petitioner despite the absence of sufficient factual averments in the Information of the specific acts constituting such violation; (3) She disregarded established and hornbook jurisprudence requiring the presence of corpus delicti in dangerous drugs cases, thus characterizing her act of issuing a warrant of arrest as gross ignorance of the law; (4) She totally ignored or purposely closed her eyes to a plethora of cases which held that Informations that aver conclusions of law, and not specific facts, as to the offense allegedly committed, are null and void for being violative of the accused's right to be informed of the nature and cause of the accusation against him; (5) She assumed jurisdiction over the case despite the fact that the Information had not validly charged Petitioner with any offense under RA 9165, it being patent that the only crime the Information could sustain is one exclusively cognizable by the Sandiganbayan; (6) She disregarded and violated Petitioner's rights not to be deprived of liberty without due process of law and to be presumed innocent when she purposely did not rule on Petitioner's Motion to Quash before she issued a warrant for her arrest, showing extreme and utter malice and bias against Petitioner; (7) If there was a doubt as to whether the Motion to Quash was to be resolved simultaneously with the determination of probable cause, she should have resolved the doubt in Petitioner's favor which is the general and accepted rule; and since she did not do so, this again showed her bias against Petitioner;

19

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(8) She acted without jurisdiction when she took cognizance of the case despite the fatal defect on the face of the Information that it could not have validly charged any violation of RA 9165 against Petitioner and that what is apparent therein is only a possible charge of indirect bribery, which is exclusively cognizable by the Sandiganbayan; and (9) In finding probable cause against Petitioner for violation of RA 9165 and issuing the warrant of arrest against her despite the nullity of the Information, she disregarded and curtailed Petitioner's right to be informed of the nature and cause of the accusation against her and to be presumed innocent, again showing bias against Petitioner.17 (Emphasis supplied) 41.

In sum, as borne by the records of the case, both in the court a quo and before the Honorable Supreme Court, various circumstances exist that readily made clear that Judge Guerrero acted contrary to constitutional duty to make a thorough, independent and impartial determination of the existence of probable cause before she issued a warrant of arrest, in clear violation of the constitutional rights of the accused De Lima, particularly the constitutional guarantees that “No person shall be deprived of life, liberty or property without due process of law,”18 and that “No x x x warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce.”19 42.

It is settled in our jurisprudence that the cold neutrality of an impartial judge is an essential part of due process. Thus, it is necessary for the judge to reassure litigants of his being fair and being just.

43.

In the case of Mateo, Jr., et. al. vs. Villaluz,20 the Honorable Supreme Court held that:

17

Dissenting Opinion of Justice Caguioa in G.R. No. 229781, 17 October 2017, pp. 40-41.

1987 Constitution, Article III, section 1.

19 1987 Constitution, Article III, section 2.

20 Mateo, Jr., et. al. vs. Villaluz, G.R. Nos. L-34756-59, 31 March 1973 citing Gutierrez v. Santos, L15824, May 30, 1961, 2 SCRA 249. This decision was cited with approval in Del Castillo vs. Javelona, L16742, Sept. 29, 1962, 6 SCRA 146; People vs. Gomez, L-22345, May 29, 1967, 20 SCRA 293; Austria vs.

Masaquel, L-22536, Aug. 31, 1967, 20 SCRA 1247; Zaldivar vs. Estenzo, L-26065, May 9, 1968, 23 SCRA 533; Geotina vs. Gonzalez, L-26310, Sept. 30, 1971, 41 SCRA 66. In Luque vs. Kayanan, L-26826, Aug. 29, 1969, 29 SCRA 165 and Tobias vs. Ericta, Ad. Case No. 242-J, July 29, 1972, 46 SCRA 83, there was reference to the need for "the cold neutrality of an impartial judge" without invoking Gutierrez v. Santos.

18

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It is now beyond dispute that due process cannot be satisfied in the absence of that degree of objectivity on the part of a judge sufficient to reassure litigants of his being fair and being just. Thereby there is the legitimate expectation that the decision arrived at would be the application of the law to the facts as found by a judge who does not play favorites. For him, the parties stand on equal footing. In the language of Justice Dizon: "It has been said, in fact, that due process of law requires a hearing before an impartial and disinterested tribunal, and that every litigant is entitled to nothing less than the cold neutrality of an impartial judge.

44.

In this regard, Section 1, Rule 137 of the Rules of Court provides that a judge, in the exercise of his sound discretion, may disqualify himself from sitting in a case, for just or valid reasons. To wit: RULE 137, Section 1. Disqualification of judges. — xxx xxx xxx A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.

45.

In the case of Query of Executive Judge Estrella T. 21 Estrada citing Geotina vs Gonzales, the Supreme Court held that, “Elementary due process requires a hearing before an impartial and disinterested tribunal. A judge has both the duty of rendering a just decision and the duty of doing it in a manner completely free from suspicion as to its fairness and as to his integrity.”22 46.

Furthermore, in the case of Macalintal vs Judge Teh,23 the Supreme Court has also reiterated that “Respondent judge should be reminded that decisions of courts need not only be just but must be perceived to be just and completely free from suspicion or doubt both in its fairness and integrity.”

47.

Cognizant of the abovementioned arguments and rulings, accused De Lima will be prejudiced if Judge Guerrero continues to sit in the case at bar. Even an Associate Justice of the Supreme Court 21 22 23

A.M. No. 87-9-3918-RTC, 26 October 1987.

Emphasis and underscoring supplied.

A.M. No. RTJ-97-1375, 16 October 1997.

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noted her “extreme and utter malice and bias against [accused De Lima].”24 48.

Ultimately, it is essential that Judge Guerrero recuse herself and inhibit from the instant case because as the Honorable Supreme Court has consistently held, “The Judge must maintain and preserve the trust and faith of the parties-litigants. He must hold himself above reproach and suspicion. At the very first sign of lack of faith and trust to his actions, whether well grounded or not, the Judge has no other alternative but inhibit himself from the case. A judge may not be legally prohibited from sitting in a litigation, but when circumstances appear that which induce doubt to his honest actuations and probity in favor of either party, or incite such state of mind, he should conduct a careful self petition. He should exercise his discretion in a way that the people's faith in the Courts of Justice is not impaired. The better course for the Judge under such circumstances is to disqualify himself. That way, he avoids being misunderstood, his reputation for probity and objectivity is preserved. What is more important, the Ideal of impartial administration of justice is lived up to.”25 49.

Consistent with the Constitution, law and jurisprudence, therefore, Judge Guerrero ought to inhibit herself from further presiding over this case.

PRAYER WHEREFORE, it is respectfully prayed that: a.

The scheduled arraignment on 16 November 2017 be deferred and held in abeyance pending the decision of the Supreme Court on accused De Lima’s Motion for Reconsideration in G.R. No. 299781, entitled “De Lima v. Judge Guerrero, et al.” and the resolution of her Motion to Quash; b.

Judge Guerrero inhibit herself from the case.

Accused Leila De Lima also prays for such other reliefs as may be deemed just and equitable.

Quezon City for Muntinlupa City, 10 November 2017.

24 25

Dissenting Opinion of Justice Caguioa in G.R. No. 229781, 17 October 2017, pp. 40-41.

Bautista vs Rebueno, G.R. No. L-46117, 22 February 1978; Emphasis and underscoring -supplied.

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By: RIGOROSO GALINDEZ & RABINO Law Offices Rm 901-902, 9th Floor, FilGarcia Tower, 140 Kalayaan Avenue, Diliman, Q.C. Office Tel. Nos. 924-2396/924-8552 Fax No. 929-1609

TEDDY ESTEBAN F. RIGOROSO PTR # 3803885; 01/04/17; Q.C. IBP # 1055892; 01/04/17; Q.C. MCLE Compliance No. V-0005526; 01/14/15 (Valid from April 15, 2016 until April 14, 2019) Roll# 42240 REQUEST The Hon. Clerk of Court Regional Trial Court Branch 204, Muntinlupa City Greetings: Please submit the foregoing Supplement to the Motion to Quash with Urgent Omnibus Motion for the consideration and resolution of the Honorable Court on 16 November 2017 at 2:00 PM.

TEDDY ESTEBAN F. RIGOROSO

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NOTICE DOJ PANEL OF PROSECUTORS Attention: Senior Assistant State Prosecutor Peter Ong Department of Justice Padre Faura St., Manila Sir/Madam: Kindly take notice that the foregoing Supplement to the Motion to Quash with Urgent Omnibus Motion shall be submitted for the consideration and resolution of the Honorable Court on 16 November 2017 at 2:00 PM. TEDDY ESTEBAN F. RIGOROSO Copy Furnished:

By Personal Service: DOJ PANEL OF PROSECUTORS Department of Justice Padre Faura St., Manila

By Private Courier: ATTY. JEFFREY D. CREUS Counsel for Accused Ragos U-518, Cityland Shaw Tower St. Francis Street cor. Shaw Blvd.

Brgy. Wack Wack, Mandaluyong City ATTY. HAIDEE S. SORIANO Counsel for Accused Dayan Burgos St., Poblacion Mangatarem, Pangasinan 2413

EXPLANATION Considering the distance between the parties and the Honorable Court, copies of this Motion were served upon the other accused, through their respective counsels, via registered mail as warranted by the Rules of Court.

TEDDY ESTEBAN F. RIGOROSO