MANILA, Philippines - The Home Development Mutual Fund (Pag-IBIG Fund) has filed a formal administrative complaint against Pasig City Regional Trial Court (RTC) Branch 167 presiding judge Rolando Mislang in connection with his issuance of two temporary restraining orders (TRO) in favor of property developer Delfin Lee of Globe Asiatique (GA) Realty Holdings Corp. which effectively stopped preliminary investigation proceedings against Lee and co-respondents in a pending syndicated estafa case; and the filing of an information for another case of syndicated estafa following the finding of probable cause in a second complaint.
Atty. Jose Roberto Po of the Pag-IBIG Legal Department filed the complaint before the Legal Department of the Supreme Court's (SC) Office of the Court Administrator (OCA) at 11:50 this morning.
The 5-page complaint addressed to Court Administrator Jose Midas Marquez alleges that Mislang's issuance of the TROs was with "evident bad faith and malice" and constitutes: (a) gross ignorance of the law and procedure on injunctive relief and prejudicial question; (b) grave misconduct; (c) knowingly rendering an unjust order, which is also defined and punishable under Article 206 of the Revised Penal Code; (d) violation of Section 3 of the Anti-Graft and Corrupt Practices Act on causing any undue injury to any party, including the government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence; and (e) a malicious delay in the administration of justice under Article 207 of the Revised Penal Code.
"It is already well-settled that when the law is so elementary, not to know it constitutes gross ignorance of the law. Moreover, it has been said that judges are expected to keep abreast of developments in law and jurisprudence and is expected to have more than a cursory knowledge of the rules," the complaint read.
In an interview with reporters, Po said the charges against Mislang are considered "serious charges" under Rule 140 of the Rules of Court, as amended.
The complaint claimed that in issuing the TROs to prevent the DOJ from proceeding with its preliminary investigation in "National Bureau of Investigation/Evelyn B. Niebres, et al. vs. Globe Asiatique Realty Holdings Corporation/Delfin Lee, et al." docketed as NPS Docket No. XVI-INV-10L-00363 and filing of information in NPS Docket No. XVI-INV-10J-00319 entitled "National Bureau of Investigation/Home Development Mutual Fund (HDMF) vs. Globe Asiatique Realty Holdings Corporation/Delfin Lee, et al.," Mislang, in effect, restrained a criminal prosecution.
Criminal prosecution 'cannot be restrained'
Pag-IBIG pointed out that the Supreme Court, in Domino vs. Sandiganbayan, held that "[i]t is also worthy to note at this point the long-standing doctrine that writs of injunction or prohibition will not lie to restrain a criminal prosecution for the reason that public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. The writ may [be issued] only in specified cases, among which are to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights."
Pag-IBIG pointed out that the TROs were issued in "evidence bad faith and malice" because of the following:
a) the orders were issued in spite of Lee's admission that a similar Petition to Suspend Proceedings dated January 27, 2011 "based on prejudicial question" was filed before the DOJ panel of prosecutors handling the preliminary investigation in NPS Docket No. XVI-INV-10L-00363, and subsequently denied;
b) Mislang did not require Lee to post a bond which is a requirement under the Rules of Court on injunctive relief;
c) the TROs were issued "based on mere unsubstantiated allegations of Mr. Lee and reports"; and
d) the orders were "premature" since Lee, during the hearing on his application for TRO, admitted that he has yet to receive a copy of the DOJ Review Resolution dated August 10, 2011 that recommended the filing of an information against him in a trial court for NPS Docket No. XVI-INV-10J-00319.
"Failure to follow basic legal commands embodied in the law and the rules constitutes gross ignorance of the law from which no one is excused, and surely not a judge," the Pag-IBIG complaint read.
Pag-IBIG further said "the timely administration of justice was delayed because of the issuance of the TROs."
"Hon. Mislang issued a temporary restraining order thereby causing a delay in the DOJ's mandate to determine probable cause. Worse, Hon. Mislang prevented the DOJ from actually filing an Information with regard to the DOJ's findings in its Review Resolution dated 10 August 2011," the complaint read.
"In order to avoid such event from happening to a similarly suited party, HDMF now implores the Honorable Supreme Court to look into the matter and properly address this issue," the complaint read.
SC to take action on complaint
Marquez said the Pag-IBIG complaint will be immediately reviewed even as Marquez himself had already directed Mislang last Friday to explain, for a non-extendable period of ten days, the circumstances surrounding his issuance of the TROs on the Pag-IBIG cases.
"We will wait for that. If there is a need to consolidate that action with the complaint filed by Pag-IBIG then we will do so... and then kung mayroon mga dumating (other complaints) later on, we will see if there's a need to consolidate them or will the complaints stand on its own. But this complaint will be acted on already," Marquez said.
Asked if Mislang will be placed under preventive suspension pending resolution of the administrative case, Marquez said: "Tignan natin if that would be called for, it's very difficult to say at this time."
"I don't want to preempt any action on the part of the court, it would be best that we give Judge Mislang an opportunity to explain himself," he added.
To his recollection, Marquez said he has not heard of any judge preventively suspended by OCA because of his/her issuance of a TRO.
Another administrative case vs Mislang still pending
Mislang has another administrative case before the OCA in connection with an order he issued for the arrest of all members of the Board of Trustees of the Government Service Insurance System (GSIS) last March 31.
Mislang issued the warrant for indirect contempt over the settlement of a 21-year-old dispute between an 82-year-old widow and the state pension fund.
GSIS claimed it settled with Rosario Santiago on the basis of a Supreme Court ruling but Mislang issued a TRO on the pension fund and ordered it to pay two individuals the judgment rendered in a separate, unrelated case.
The OCA handles administrative complaints against judges in lower courts and submits its findings and recommendations to the En Banc for final action. The OCA may order a full-blown investigation into the new complaint against Mislang, which may include a series of hearings.
"It will depend on the answer of Judge Mislang... if it is necesary that an investigation be called. It will be very difficult to say how long an investigation will take," Marquez said.
The Office of the Solicitor General (OSG), representing the DOJ, will be filing a separate administrative case against Mislang.
Justice Secretary Leila De Lima had earlier said Mislang erred in issuing the TRO on the filing of information against Lee. She ordered the OSG to file a motion for the immediate lifting of the TRO and an administrative complaint against Mislang with the high court.
The DOJ found probable cause to charge Lee with syndicated estafa constituting economic sabotage before a trial court for taking out the housing loans of GA's alleged "special buyers" and "ghost buyers" in its Xevera housing units in Mabalacat, Pampanga amounting to P6.65 billion.
Aside from Lee, also recommended charged were his son, Dexter, who is GA executive vice president and chief finance officer; Christina Sagun, head of Finance Department; Cristina Salagan, head of Accounting Department; and lawyer Alex Alvarez, manager of the Foreclosure Department of the Pag-IBIG Fund.