The next appointee of President Rodrigo Duterte in the Supreme Court (SC) will be crucial in deciding whether to grant the petition of Sen. Leila de Lima seeking the reversal of her indictment and the invalidation of her arrest for drug charges, a source of The Manila Times in the High Court said.
This is because of the close voting expected in the case, the source said.
The source revealed that Duterte had already signed the appointment papers of the new SC magistrate who will take over the post vacated by Associate Justice Jose Catral Mendoza who retired on August 13 at the age of 70.
The source said the appointee is a senior member of the judiciary, but refused to give his or her name.
Duterte presently has three appointees in the High Court — Associate Justices Samuel Martires, Noel Tijam, and Andres Reyes Jr.
Mendoza’s retirement means that the SC currently only has a roster of 14 justices, including Chief Justice Maria Lourdes Sereno.
The source said that the current roster of magistrates are almost equally divided on the De Lima case. A 40-page draft decision of Associate Justice Presbitero Velasco Jr. has been circulated among the magistrates and several have already responded with their concurring or dissenting opinions.
Velasco, in his draft decision, reportedly recommended the dismissal of De Lima’s petition, affirming her indictment and the filing of the drug charges against the senator before the RTC of Muntinlupa City.
“Verily, the admissibility of evidence, their evidentiary weight, probative value, and the credibility of the witness are matters that are best left to be resolved in a full blown trial, not during a preliminary investigation where the technical rules of evidence are not applied, nor at the stage of the determination of probable cause for the issuance of a warrant of arrest. Thus, the better alternative is to proceed to the conduct of trial on the merits for the petitioner (De Lima) and the prosecution to present their respective evidence in support of their allegations,” the source, quoting a portion of Velasco’s draft decision, cited.
He said that five justices have submitted their dissenting opinions –Associate Justices Antonio Carpio, Marvic Leonen, Estela Perlas-Bernabe, Alfredo Benjamin Caguioa, and Francis Jardeleza.
However, the justices may still change their minds based on the revised draft of Velasco and the concurring opinion of Associate Justice Diosdado Peralta.
With the five votes so far and Sereno’s vote expected to be in favor of the senator, six justices are poised to vote in favor of granting De Lima’s petition.
The vote of SC Justice Mariano Del Castillo will thus be crucial and could be considered as one of the “swing votes” should he join the dissenters.
Without the new appointee of Duterte in the SC, only 14 Justices will be participating in the voting. The results might reach 7-7 or 8-6 either way, according to the source.
The Rules of Court provides that in case of a tie (7-7), De Lima’s petition shall be dismissed.
A headcount of The Manila Times tends to show that those who are inclined to vote against De Lima’s petition has a “small edge” against those who are in favor of it.
De Lima’s petition seeks to invalidate her arrest and challenges the jurisdiction of the Regional Trial Court of Muntinlupa City to try her drug charges.
She argued that the RTC of Muntinlupa City committed grave abuse of discretion in issuing arrest orders against her despite the fact that she has a pending motion to quash and despite having no jurisdiction over her case.
De Lima maintained that it is the Office of the Ombudsman which has jurisdiction over her case since she was charged on the basis of her position as Secretary of Justice in relation to the alleged criminal acts.