De Lima wants OSG barred as counsel for CIDG

Senator Leila M. de Lima has sought to disallow the Office of the Solicitor General (OSG) from appearing as counsel for the PNP-Criminal Investigation and Detection Group (CIDG) in sedition cases against her and other members of the opposition party.

In a 13-page Motion filed last Aug. 14, De Lima told the Department of Justice (DOJ) that it is "illegal and improper" for Solicitor General Jose Calida to appear as counsel for the PNP-CIDG in the string of cases filed against her and others.

She cited two main reasons, both based on the ruling of the Supreme Court in the case of Urbano v. Chavez, which had "well- and pointedly settled" that the OSG has no authority to participate in the preliminary investigation stage of criminal proceedings because of the OSG's unique and exclusive statutory mandate to represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings.

She pointed out that, as appellate counsel of the Government in criminal cases, in point of law, the OSG's client in these proceedings is none other than the prosecution arm of the government, i.e., the Panel of Prosecutors itself.

At this stage, according to De Lima, "the People of the Philippines", represented by the Panel of Prosecutors, is still sitting as an impartial arbiter between the conflicting claims of the Complainant and the Respondents. There is, therefore, no "People of the Philippines" yet that stands as a party to the criminal case during the preliminary stage, the former justice secretary said.

In short, it is improper for the OSG to represent the Complainant because it "cannot appear before its client and argue in favour of one of the contending parties because in a just and fair criminal justice system, both adversarial sides have the same chances of winning or losing before the Honorable Panel of Prosecutors," De Lima stated in her Motion.

"The only way that the OSG can guarantee that the conflict of interest that the Supreme Court refuses to countenance will NEVER arise is if it is saying that it is certain the Honorable Panel of Prosecutors will always rule in favor of the OSG, whomever it may be representing. And yet, in our criminal justice system, the OSG cannot claim that the Honorable Panel of Prosecutors is under their tight leash," she continued.

Secondly, Senator De Lima pointed out that the PNP-CIDG is merely a nominal complainant as it has no personal knowledge about the allegations, which are being made by a private individual Peter Joemel Advincula alias "Bikoy".

"If the OSG insists on representing the Complainant, it is, in truth and in fact, advocating for the truth of Mr. Advincula's allegations, and therefore, representing Mr. Advincula," De Lima said, adding that the OSG already admitted its participation in the drafting of Advincula's sworn statement, which became the basis of the CIDG complaint.

But such representation is illegal and improper because Mr. Advincula, Senator De Lima pointed out, is not only a private individual, but is also:

(a) someone whose capacity for falsehood has been proven beyond reasonable doubt due to his conviction of a crime involving moral turpitude;

(b) is himself one of the respondents in this case; and

(c) regardless of whether he is telling the truth or not as to the participation of his co-respondents, it is already beyond doubt that he has committed a wrong (either by committing a crime in conspiracy with the other respondents, or by perjuring himself in executing his Sworn Statement).

Therefore, according to De Lima, following Urbano, the OSG has even less authority to represent a private individual, who has already himself confessed to the commission of the crimes he is implicating others in. As explained by the Supreme Court, since the State can speak and act only by law, Mr. Advincula "should not expect the State, through the Office of the Solicitor General, to defend him for a wrongful act which cannot be attributed to the State itself."

The lady Senator from Bicol also asked the DOJ to expunge all documents and pleadings filed by the OSG in the sedition, inciting to sedition, cyber libel, estafa and violation of Presidential Decree No. 1829 filed by the CIDG. Earlier, De Lima decried as political persecution the series of complaints filed against her and other key members of the opposition for allegedly conspiring to destabilizing the government and link Duterte to the drug trade in the country.

According to the Senator, her inclusion in the complaint strongly reeks with the stench of political persecution and weaponizes the criminal justice system into a tool for revenge and for the silencing of dissent.

"The OSG's time will come. This, however, is not the proper time for it to intervene," De Lima said in her motion.

This is not the first time that the OSG has exhibited an unhealthy overeagerness to prematurely insinuate itself in the "prosecution" of known critics of President Duterte.

Based on the testimony of convicted murderer Hans Anton Tan and convicted kidnapper and carnapper Jaybee Sebastian, Calida personally visited them before the filing of the drug cases against De Lima, even before the DOJ filed any case against her.