SC vs solgen on Napoles case: Luy 'deprived of liberty'

MANILA, Philippines (Philippine Center for Investigative Journalism) — At a press conference on Wednesday in response to a PCIJ report on his office's manifestation recommending the acquittal of "pork-barrel queen" Janet Lim Napoles in the serious illegal detention of whistleblower Benhur Luy, Solicitor General Jose Calida noted that his position assigns him the circumstance of serving as the 16th member of the Supreme Court.

He also defended submitting the manifestation—dated Jan. 11, 2017 and received by the 13th Division of the Court of Appeals on Jan. 20, 2017—in part by saying that "when we look at the evidence, the transcript of records, there are many glaring instances which will support the acquittal of the accused."

But the manifestation digresses from how the body that Calida says he is the 16th member of has evaluated and ruled on precisely the same case.

Six months earlier, on July 13, 2016, the Second Division of the Supreme Court had denied the "Petition for Review on Certiorari with Application for a Temporary Restraining Order and/or Writ of Preliminary Injunction filed by petitioner Janet Lim Napoles."

The decision noted that the petition had "(assailed) the Court of Appeals Decision dated March 26, 2014 and Resolution dated July 8, 2014, which found no grave abuse of discretion in the filing of an information for serious illegal detention against (Napoles) and the subsequent issuance of a warrant for her arrest."

But among the high court's conclusions was that "Napoles has been found guilty of serious illegal detention with proof beyond reasonable doubt, a quantum of evidence higher than probable cause. Resolving whether there was probable cause in the filing of information before the trial court and in the issuance of an arrest warrant would be 'of no practical use and value'."

Associate Justice Marvic Leonen penned the decision. Senior Associate Justice Antonio Carpio (chairperson of the Second Division), Associate Justice Arturo Brion, and Associate Justice Mariano del Castillo concurred. Associate Justice Jose Mendoza was on official leave.

Under Rule 65 of the 1997 Rules of Civil Procedure/Rules of Court adopted by the Supreme Court, a Petition for Certiorari may be filed "when any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require."

Napoles had named the following as respondents in her petition: "Hon. Secretary Leila De Lima, Prosecutor General Claro Arellano, And Senior Deputy State Prosecutor Theodore M. Villanueva, In Their Capacities As Officers Of The Department Of Justice; Hon. Elmo M. Alameda, In His Capacity As Presiding Judge Of The Regional Trial Court Of Makati, Branch 150, National Bureau Of Investigation (NBI); Arturo F. Luy, Gertrudes K. Luy, Annabelle Luy-Reario, and Benhur K. Luy."

The petition for certiorari was not the first that Napoles had filed with the Supreme Court and the Court of Appeals. She had filed at least two such petitions previously for the same case.

Then last September, Napoles' lawyers filed a "reply brief" in which "the appellant reiterated her argument that the essential element of deprivation of liberty is absent and wanting in this case."

This apparently led to the OSG's recent manifestation that has caught many people—including officials in the executive and judicial branches—by surprise.

At the Wednesday press conference, Solicitor General Calida said that, "it is my well-considered opinion and that of my assistants that the RTC (Makati Regional Trial Court Branch 150) erred in convicting Napoles."

The OSG had furnished the Makati RTC and the lawyers of Napoles a copy of its January 2017 manifestation, but not the lawyers of Benhur Luy.

According to Calida, Luy's behavior during his three-month alleged detention by Napoles at the retreat house run by priests close to Napoles, and at the Napoles family residence "belies the fact that he was actually detained or deprived of his liberty."

"With facts like these," he said, "can you in conscience say that she (Napoles) should be convicted for the crime of serious illegal detention?"

In Calida's mind, Napoles had become "a victim of injustice" and that "it is very unfair if Janet Napoles will suffer incarceration for life for a crime she did not commit. That is a travesty of justice which my office cannot countenance."

Yet, the same matters that seemingly still bother the Solicitor General had already been discussed and reviewed at length by the Supreme Court's second division last July. After examination of the records of the case, the high court ended up denying Napoles's petition for certiorari, issuing a 16-page ruling.

On the matter of "whether the Court of Appeals erred in finding no grave abuse of discretion: first, in filing an information for serious illegal detention against Napoles; and, second, in the issuance of a warrant for her arrest," the Supreme Court decision stated:

• "This Petition must be denied for being moot and academic. In any case, the Court of Appeals did not err in dismissing the Petition for Certiorari. There was no grave abuse of discretion either in the filing of information in court or in the issuance of the arrest warrant against Napoles."

On the filing of the serious illegal detention case against Napoles, the Supreme Court decision stated:

• "There was no grave abuse of discretion in the filing of Information against Napoles.  The Review Resolution sufficiently explained that during the preliminary investigation stage, there was probable cause to believe that Napoles and Lim, her brother, illegally deprived Benhur Luy of his liberty:

• "[T]he undersigned hereby rules that there is probable cause that respondents committed the crime of Serious Illegal Detention and should be held for trial. Relative thereto, it should be noted that the crime of Serious Illegal Detention has the following elements:

• "the offender is a private individual;

• "he kidnaps or detains another or in any other manner deprives the latter of his liberty;

• "the act of detention or kidnapping is illegal; and

• "in the commission of the offense, any of the following circumstances are present: (a) the kidnapping or detention lasts more than 3 days; or (b) it is committed by simulating public authority; or (c) any serious physical injuries are inflicted upon the person kidnapped or detained or threats to kill him are made; or (d) the person kidnapped or detained is a minor, female, or a public officer.

• "Relative to the instant case, there is no question regarding the first element, as both respondents are private individuals. There is no allegation to the contrary that respondents [Reynald] Lim and Janet Lim Napoles are private indiv[i]duals.

• "The issue in this case actually revolves around the second element of the crime, which is the question of whether complainant Benhur Luy was actually deprived of his liberty...."

On whether Benhur Luy "was actually deprived of his liberty," the Supreme Court decision stated:

• "It appears that there is sufficient evidence to establish that complainant Benhur Luy was actually deprived of his liberty.

• "First of all, it is an undisputed fact that complainant Benhur Luy executed an affidavit which detailed the deprivation of his liberty. His elaboration of the deprivation of his liberty should be given weight vis-a-vis the allegations of respondents....

• "Second, the undersigned also finds the claim that complainant Benhur Luy went on a "spiritual retreat" at Bahay (ni) San Jose as contrary to human nature (to say the least). The records would show that respondent Janet Lim Napoles was extremely mad at complainant Benhur Luy for obtaining unauthorized loans in her behalf. With the anger of respondent Janet Lim Napoles, the undersigned finds it difficult to believe that complainant Benhur Luy would choose to have a spiritual retreat with priests that are closely associated with respondent Janet Lim Napoles. Why would complainant Benhur Luy choose to stay in an establishment that has close ties with respondent Janet Lim Napoles if the latter was already hell bent on filing a criminal case against him?

• "Sixth, an examination of the facts and circumstances of the instant case leads us to conclude that respondents had motive to deprive complainant Benhur Luy of his liberty. Respondent Janet Lim Napoles averred that she discovered that complainant Benhur Luy illegally obtained two (2) loans in her behalf. This, in turn, angered respondent Janet Lim Napoles, and the latter even threatened to file a criminal case against him.

• "However, complainant Benhur Luy's alleged knowledge of the anomalous transactions of JLN Group of Companies would place respondent Janet Lim Napoles in a compromising position. If complainant Benhur Luy is sued, then the latter would not have any choice but to reveal his knowledge on the involvement of JLN in the PDAF (Priority Development Assistance Fund or pork barrel), Malampaya, and the Fertilizer scams. To avoid this, respondents restrained his liberty, thereupon forcing complainant Benhur Luy's silence.

• "Obviously, fishing into the motives of the perpetrators of this crime is an ardent task. However, the undersigned finds that the above-captioned proposition makes more sense than the one proffered by respondents. While the undersigned does not deny that there is evidence that complainant Benhur Luy committed the crime of qualified theft, their defense that he went on a spiritual retreat, [i]n a house with close ties with respondent Janet Lim Napoles, is simply unfathomable to believe.

• "Moreover, even if the alleged knowledge of complainant Benhur Luy on the anomalies involving JLN group of companies is disregarded, it is still logical to conclude that the qualified theft committed by the latter created a motive on the part of respondents to detain him.

• "With regard to the third element, and considering our above conclusion, it is crystal clear that the act of depriving Benhur Luy's liberty is illegal. Both respondents had no authority and/or justifiable reason to detain and deprive complainant Benhur Luy of his liberty.

• "As to the fourth element, it is undisputed that complainant Benhur Luy was deprived of his liberty for more than three (3) days. In fact, it lasted for months starting December 2012 up to March 2013, when complainant Benhur Luy was rescued by the NBI.

• "Lastly, with regard to the participation of respondent Janet Lim Napoles, it is evident that she was greatly involved in the deprivation of liberty of complainant Benhur Luy. The statements made by Merlita Sunas and Maria Flor Villanueva clearly manifest respondent Janet Lim Napoles's knowledge of the crime.

• "Moreover, Benhur Luy's detention at Bahay (ni) San Jose, which has close ties with respondent Janet Lim Napoles, is indicative that she had personal knowledge of what was happening. As earlier ruled, it would be highly illogical for Benhur Luy to have his retreat in a house that has very close ties to Janet Napoles. In our mind, complainant Benhur Luy's confinement at Bahay (ni) San Jose was caused by respondent Janet Lim Napoles.

• "The most damning link between the crime and respondent Janet Lim Napoles is the motive behind complainant Benhur Luy's deprivation of liberty. Consistent with our earlier finding that the deprivation was undertaken in order to prevent complainant Benhur Luy from divulging information on JLN group of companies' involvement in the Fertilizer Fund, Malampaya, and PDAF scams, it is clear that respondent Janet Lim Napoles authored and/or orchestrated this unlawful three (3) month detention.

• "It is true that the Review Resolution reversed the initial finding of lack of probable cause against Napoles and Lim. However, this in itself does not show grave abuse of discretion.

• "The very purpose of a motion for reconsideration is to give the prosecutor a chance to correct any errors that he or she may have committed in issuing the resolution ordering the filing of an information in court or dismissing the complaint. "Reception of new evidence is not within the office of a Motion for Reconsideration." A reversal may result if a piece of evidence that might have yielded a different resolution was inadvertently overlooked.

• "In initially dismissing the criminal complaint filed by Benhur Luy's family, the prosecutor disregarded the purported motive behind Benhur Luy's detention. According to the initial Resolution, whether Napoles and Lim detained Benhur Luy to prevent him from exposing the anomalous transactions of the JLN Group of Companies involving the Priority Development Assistance Fund would spawn an entirely different proceeding; hence, the issue is irrelevant in the proceedings involving the serious illegal detention charge.

• "Although motive is not an element of a crime, it is a "prospectant circumstantial evidence" that may help establish intent. In this case, the Review Resolution sufficiently explained why it was "contrary to human nature" for Benhur Luy to go on a three (3)-month spiritual retreat with priests that have close ties with Napoles; and, instead, BenhurLuy had been detained at Bahay ni San Jose, transferred from place to place until he was rescued in Pacific Plaza because he knew first-hand of Napoles's involvement in the pork barrel scam."

On whether Makati RTC 150 Presiding Judge Elmo Alameda committed grave abuse of discretion when he issued a warrant of arrest for Napoles, the Supreme Court decision stated:

• "Neither was there grave abuse of discretion in the issuance of the arrest warrant against Napoles. That Judge Alameda issued the arrest warrant within the day he received the records of the case from the prosecutor does not mean that the warrant was hastily issued. 'Speed in the conduct of proceedings by a judicial or quasi-judicial officer cannot per se be instantly attributed to an injudicious performance of functions. For one's prompt dispatch may be another's undue haste.'

• "Judge Alameda was under no obligation to review the entire case record as Napoles insists. All that is required is that a judge personally evaluates the evidence and decides, independent of the finding of the prosecutor, that probable cause exists so as to justify the issuance of an arrest warrant. As explained in Ho v. People:

'[I]t is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause.' (Emphasis supplied)

• "In his August 14, 2013 Order, Judge Alameda declared that he personally evaluated the records of the case, including the Review Resolution and the Sworn Statements of the witnesses; and that based on the records, he found probable cause to issue an arrest warrant against Napoles:

'After personally evaluating the Review Resolution issued by Senior Deputy State Prosecutor Theodore M. Villanueva, Chairman-Task Force on Anti-Kidnapping and approved by Prosecutor General Claro A. Arellano, together with the Sworn Statements of the complainants and other evidence on record, the undersigned finds the Review Resolution to have factual and legal basis. Likewise, the undersigned after personally reviewing the finding of Senior Deputy State Prosecutor Theodore M. Villanueva based on the evidence on record, finds probable cause for the issuance of Warrant of Arrest against the accused for the crime of Serious Illegal Detention 'under Article 267 of the Revised Penal Code there being probable cause to believe that the crime of Serious Illegal Detention has been committed by the accused'."

In sum, the Supreme Court's Second Division denied Napoles's petition for certiorari thus: "We afford respondents the presumption of regularity in the performance of their duties... Napoles failed to show capriciousness, whimsicality, arbitrariness, or any despotic exercise of judgment by reason of passion and hostility on the part of respondents." — PCIJ