Delfin Lee’s lawyers will file a petition for the issuance of a writ of habeas corpus – if they haven’t done that yet, it’s already 5:33pm Friday. The lawyers are probably looking for his next-of-kin to sign it. If they know their way around the courts or know some judges or justices or clerks of court, they can file it tonight or tomorrow, or at the latest, manually, by Monday.
Will it be granted? – Based on news reports (i haven’t seen any of the court orders and writs in this case) : 1)The RTC-Pampanga issued a warrant of arrest; 2) The Court of Appeals through an injunction case filed by Lee, issued a resolution ordering the RTC-Pampanga “to lift” said warrant of arrest; 3)The prosecution, through the DOJ, filed an injunction case or an “appeal” in the Supreme Court (petition for certiorari and prohibition with application for a writ of prelim injunction and a TRO etc. under Rule 65 or an “appeal” from an order of the CA or petition for review and certiorari under Rule 45), asking the SC to stop or set aside the order issued by the CA; 4)Lee was arrested last night.
Is the arrest legal? 1) The police said that when the prosecution filed the injunction case in the SC (petition for certiorari and prohibition etc under Rule 65), or an appeal (“appeal” from an order of the CA or a petition for review and certiorari under Rule 45) the Court of Appeals, upon being notified of said action, issued an order “deferring” the execution of its order on the RTC “to lift” the arrest warrant. IF TRUE (that the CA issued such an order “deferring” the execution of its earlier order), then, yes, THE ARREST IS LEGAL.
2)IF NOT TRUE – If it is not true that there was such an order from the CA “deferring” the execution of its earlier order, is the arrest legal?
…. Hmmmm. Do not use the argument that just because you filed a Petition for Certiorari and Prohibition under Rule 65 in the SC or an appeal under Rule 45, that, that stays the earlier order of the CA lifting the warrant of arrest. There’s no TRO, or stay order, or status quo order, or writ of prelim injunction, or any kind of order from the Supreme Court, staying or suspending the earlier order of the CA. It is basic that the mere filing of a Petition for Certiorari and Prohibition or an appeal under Rule 45 will not stay any questioned order. If you keep using this theory and not use any other remedial tactics, he will walk – Delfin Lee walks when a court hears his Petition for the Writ of Habeas Corpus.
Between now and Monday or Tuesday, get the TRO applied for in the SC.
If you cannot do that, use the argument that: When the CA issued its resolution ordering the RTC-Makati “to lift” the warrant of arrest, no motion was filed by Delfin Lee in the RTC-Makati to quash said warrant of arrest. The warrant of arrest does not quash by itself, or on its own, without any motion filed in the RTC that issued it , with a notice of hearing and a hearing upon the motion. And the accused never filed any such motion in the RTC to quash it, therefore, the warrant of arrest is still alive.
Igor-rrrr! (roll your rrr’s and use your Russian accent) — it’s ah-live!!! (bolt of lightning and clap of thunder).
Then, arraign him quickly. Once arraigned, the criminal case will proceed against him regardless of any ruling on his petition for the writ of habeas corpus.
The moral of the story is… the safe and prudent thing to do is, to always go back to the RCT that issued the warrant of arrest and go through the motions of quashing it in that court even after a higher court has issued an injunction — just to play safe.
Between now and Monday or Tuesday however, you’re going to see a Petition for the issuance of the Writ of Habeas Corpus fired your way (filed in court).