The government had filed a case of inciting to sedition against Ong before the Makati MTC immediately after the 72-hour temporary restraining order issued by the Manila RTC had expired.
However, former immigration commissioner Rufus Rodriguez, one of Ong’s lawyers, said government prosecutors failed to appear in yesterday’s hearing where Ong had asked that the case against him be dismissed.
"We believe that the determination of probable cause of the DOJ is biased, and I’m confident that the judge will dismiss this case," he said.
The inciting to sedition case filed against Ong did not go through preliminary investigation to determine probable cause, he added.
Ong’s lawyers asked the court to defer the issuance of a warrant of arrest for their client pending the determination of probable cause.
Rodriguez and Ong’s other lawyers argued that there was no basis for filing the case against their client because the allegations proffered by the DOJ did not constitute sedition.
"(Ong) has not waived his right to question and challenge the validity and regularity of the preliminary investigation supposedly conducted against him, the findings therein, and the information filed in this case," he said.
Rodriguez and Ong’s other lawyer, former internal revenue commissioner Liwayway Vinzons-Chato said Ong’s statement during a press conference at the Makati Sports Club on June 10, 2005, which was the basis for the filing of the sedition charge does not in any way constitute sedition.
"Calling on Mrs. Arroyo to resign and for blaming her for the problems of the country does not constitute sedition," the lawyers said.
"Ong’s statements are in the category of free speech and do not contain fighting words that could be defined as seditious. Ong’s call for Mrs. Arroyo to resign was uttered in a press conference before the media, political figures and religious leaders and not in a frenzied crowd awaiting word to overthrow the government."
Further, Ong is not a prominent individual with a charismatic public following who could effectively incite others to commit acts of sedition, Rodriguez said.
In a two-page order issued Thursday, Judge Reynaldo Ros of Manila RTC branch 33 said Ong’s petition for preliminary injunction and prohibition had become "moot and academic" after the DOJ charged him before the Makati court.
"The claim of the petitioner that the preliminary investigation conducted by the DOJ is null and void for being in violation of his right to due process is a matter that should be addressed to the Metropolitan Trial Court of Makati where the inciting to sedition (case) is pending," he said.
Ros said Ong had in fact already filed a motion for judicial determination of probable cause to defer the warrant of arrest with the Makati MTC on July 11.
"With the filing of inciting to sedition against the petitioner by the DOJ with the MTC of Makati there is nothing more to prohibit or enjoin," he said.
"The act sought to be prohibited or enjoined has become a fait accompli or an accomplished or consummated act. Thus, the petition for prohibition/injunction has become moot and academic."
Jaime Maria Flores II, one of Ong’s lawyers, said his client could easily post the P12,000 recommended bail bond necessary to obtain temporary liberty.
However, they are concerned about his safety, he added.
Ong had asked the Manila RTC to stop the DOJ from conducting a preliminary investigation on the inciting to sedition case against him on the ground that it violated his right to due process.
The DOJ had charged Ong with inciting to sedition after he held a press conference on June 10 in which he claimed to possess the "mother of all tapes" that allegedly contained illegally recorded conversations between President Arroyo and an election official regarding massive electoral fraud.
In his press conference, Ong had accused Mrs. Arroyo of being responsible for the country’s poverty and corruption.
He also reportedly called on the military to oust her as their Commander-in-Chief.
On June 16, the government sent a subpoena to Ong’s home at No. 406 Diamond Avenue, Green Heights Subdivision, Novaliches, Quezon City.
However, on June 27, the day the DOJ was supposed to conduct its preliminary investigation, Executive Judge Antonio Eugenio of Manila RTC issued a 72-hour TRO in favor of Ong.
The case was raffled off to Ros, who after hearing the arguments of both parties denied Ong’s petition for a 17-day extension of the TRO. — Evelyn Macairan