DRAFT/FOR APPROVAL

Globe Asiatique president Delfin Lee last Tuesday filed a petition with the Supreme Court asking it to issue an ex-parte temporary restraining order (TRO) directing the Department of Justice (DOJ) to cease and desist from filing the syndicated estafa case against him and the other respondents. The filing of the petition came after the Court of Appeals 17th Division on Monday gave the DOJ the go signal to file syndicated estafa case against Lee and several others in connection with the case of the Home Development Mutual Fund (HDMF) against Globe Asiatique. The lawyers of Lee questioned the CA move on pure questions of law, arguing that the decision setting aside the injunction issued by Judge Rolando Mislang of Pasig Regional Trial Court (RTC) Branch 167 violated settled jurisprudence and basic constitutional rights of Lee. With the CA decision and the appeal of Lee to the High Court, Justice Secretary Leila de Lima is put to test on whether she will contradict herself by filing the information in court, who declared in earlier cases that an order or decision against which a motion for reconsideration or appeal is filed is not yet executory. It will be recalled that when the SC on Nov. 15, 2011 issued a TRO on the inclusion of former President Arroyo and husband Mike Arroyo in the immigration watch list, which, in effect, allowed them to go abroad, De Lima said the TRO was not yet final and executory until after the government motion for reconsideration had been filed and denied by the SC. In the case of Sen. Panfilo Lacson, De Lima has said that the arrest warrant against the senator remained in effect even if the Court

of Appeals had voided it because of the options still given to the government then, including appealing the CA decision. In Lees petition for review before the SC, his lawyers said the CA gravely erred when it took cognizance of the petition for certiorari filed by the DOJ despite the fact that it was premature. Lees lawyers said the CA also erred when it ruled that there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the Pasig RTC Branch 167. They added that the CA was mistaken when it ruled that there is no prejudicial question in the Makati civil case filed by Globe Asiatique against HMDF in relation to the first and second criminal complaints pending with the DOJ. They said a requisite common to the writs of certiorari, prohibition and mandamus is that these writs may be availed of only if there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law from the acts of the respondents. In the injunction case with RTC Pasig 167, not only was there a plain, speedy and adequate remedy in the ordinary course of law, but respondent DOJ actually availed of the same, they said. The petition for certiorari also violated Rule 46, Section 3 of the Rules of Court which provides that the petition shall contain the full names and actual addresses of all the petitioners and respondents, a concise statement of the matters involved, the factual background of the case, and the ground relied upon for the relief prayed for. However, when the DOJ filed its petition for certiorari with CA, it failed to indicate the material dates when the motion reconsideration and its comment was filed with RTC Pasig 167. stated above, this is a sufficient ground for the dismissal of Petition, Lees lawyers said. the for As the

The failure or deliberate refusal on the part of the respondent DOJ to disclose this fact has severe consequences, the most damaging of which is the likelihood of conflicting rulings. Hence, the

CA should have dismissed the petition for certiorari. However, without any justifiable reason, the CA chose to brush this technicality aside and render the assailed decision, the lawyers stressed. ###