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, thatstays 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).
Newspeg: “Malacañang is providing security for whistle-blower Rodolfo Lozada Jr. but it cannot assure him of immunity from legal processes, a Palace spokesperson said yesterday.” (Inquirer)
xxx
If you feel betrayed and you feel used and tossed aside, by all means, you should air your grievances. In the meantime however, someone should be taking care of your legal entanglements because these will not go away unless faced. Where an arrest warrant has been issued, and unless it is quashed, it would be served sooner or later unless and until the accused posts bail – in which case, the accused would be saved the anxiety of being accosted or harassed with it. Under the revised/ “new” rules of criminal procedure, the posting of bail does not constitute a waiver of the right to question the legality (or to raise the illegality) of the issuance of the arrest warrant, question the regularity or legality of the proceedings itself, the jurisdiction of the court itself, the lack of or irregularity of the preliminary investigation (see provisions below), as long as these questions are raised before arraignment; in other words, under the new rules of criminal procedure, the posting of bail IS NOT AN ADMISSION OR ACCEPTANCE OF THE LEGALITY OF THE PROCEEDINGS,
And this is expressly stated in the new rules.
You may call for a press con if you want.
(the accused if he has ground can also seek immunity but unless and until this is granted, the arrest warrant would be served.)
(you can also bring your own photos; bring your lawyer; you can choose to go on an ordinary day with no fanfare).
Here they are:
Rule 114. Bail. “Sec. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation.—An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case, (new)
While Section 14 provides:
“Sec. 14. Deposit of cash as bail.—The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit. (14a)”
