FACT CHECK: Where should the Solicitor General stand in Napoles' case?

MANILA, Philippines – Why is the government's chief lawyer defending the alleged pork barel queen?

This was the general reaction from political watchers when it was discovered that the Office of the Solicitor General (OSG) submitted a manifestation to the Court of Appeals (CA), saying that Janet Lim Napoles must be acquitted of the crime of serious illegal detention.

The "manifestation in lieu of rejoinder" was filed by the OSG with the CA last January 11. This was 4 months after Napoles filed a "reply brief" in her appeal of her conviction.

In its manifestation, the OSG parrots Napoles' arguments, and said that the Makati court erred when it sentenced Napoles to 30 years in jail for holding her employee and eventual pork barrel scam whistleblower Benhur Luy against his will. (READ: Duterte's SolGen moves to acquit Napoles in illegal detention of Luy)

But what governs the OSG's actions?

 

Can the OSG turn against the government?

The OSG's mandate is primarily to "represent the government of the Philippines, its agencies and instrumentalities, and its officials and agents in any litigation, proceeding, investigation." Simply put, it has to defend the government in cases. The case pending with the CA is "People of the Philippines" – or the government – against Napoles.

However, Calida explained that there have been cases in the past where the OSG did not take the side of the government.

Supreme Court rulings support this, the precedent being a case between a private respondent against the Civil Service Commission (CSC). One SC ruling said: "The OSG is an independent office. Its hands are not shackled to the cause of its client agency. In the discharge of its task, the primordial concern of the OSG is to see to it that the best interest of the government is upheld...regardless of the fact that what it perceived as the best interest of the government runs counter to its client agency's position."

The SC ruling further says: "This is not the first time that the Office of the Solicitor General has taken a position adverse to his clients like the CSC, the National Labor Relations Commission, among others, and even the People of the Philippines."

Calida, in a news conference on Wednesday, February 15, said: "The persons involved are immaterial to us, we will do the same for anybody else. The important thing for me is that justice should be done without fear or favor, that's why I'm quite surpised why there was such a reaction."

 

Was the OSG required to comment?

Calida told Rappler that the court required their comment. "If we do not comment and we are required to comment, then we are not doing our jobs."

Raji Mendoza, counsel for Benhur Luy, questions this. In a phone interview with Rappler, he said the manifestation was suspect because it was filed after Napoles and the prosecutors had submitted their briefs. 

"Did the CA order the OSG to reply? Where is the order?" Mendoza said.

The OSG told Rappler that there exists a court order, but said it may take them a few days to furnish Rappler a copy.

Section 5 of Rule 46 under the Revised Rules of Civil Procedures states that the court may "require the respondent to file a comment on the same within ten (10) days from notice."

In the Napoles appeal before the CA, the respondent was the government. According to the OSG's timeline, Napoles first filed a brief around February 2016. After receiving it, the OSG, under former Solicitor General Florin Hilbay, prepared a brief that affirms the decicision of the Makati court. It was, however, filed on August 8, 2016, a month after Calida took office.

On September 26, 2016, the OSG received a copy of Napoles' Reply Brief, and that is when the office, under Calida, filed a manifestation in lieu of a rejoinder, which contested the brief of the earlier administration, and recommended the acquittal of Napoles.

 

'Napoles case not special'

"If we see that there is injustice, we will not close our eyes to it," Calida said in the news conference on Wednesday, saying he didn't give a special treatment to the Napoles case. "There are lots of papers lined up [in my office]. I have to read them, I cannot memorize them," Calida said, referring to other cases the OSG is supposedly reviewing in order to also submit their comment on.

The OSG told Rappler that Calida has commented "on thousands of cases" ever since he was appointed in July 2016. 

"Among the cases being handled by the OSG are special proceedings (adoption, correction and cancellation of entries in the civil registry, change of name), annulment of marriage (nullity, anullment, legal separation, declaration of presumptive death), land titles, taxation, and criminal cases," the OSG said.

 

'Why is the Solgen repeating Napoles' arguments?'

Calida said that the manifestation was merely an opinion and it was still for the CA justices to decide.

"That's only a comment? But why did you make the comment [in the first place]? That's something else," Mendoza said. 

Mendoza questioned the fact that the OSG's manifestation just echoed Napoles' arguments and did not include the rebuttals already made in court.

Napoles, in her appeal to the CA, said that the "essential element of deprivation of liberty is absent and wanting in this case."

Siding with her, the OSG said in the manifestation that "the evidence presented does not support beyond reasonable doubt that the appellant committed the crime of serious illegal detention."

"The solicitor general is considered the 16th justice of the Supreme Court, we are partners in the judiciary with the appellate courts to see to it that we do not send an innocent person to the gallows," Calida said.

"I'm sure the CA justices will consider [the manifestation]," Mendoza said, sharing that Luy is in low morale following the news.

Mendoza said the manifestation was "so one-sided," citing an evidence which, according to him, was vital during the court hearing but was not included in the manifestation.

"How could there be no element [of deprivation of liberty] when Napoles' own corporation has links to the said retreat house?" Mendoza said, explaining that he found it curious why the manifestation was "so one-sided." Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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