The other side

Fairness dictates that Judge Rolando Mislang’s side be also aired, in connection with his issuance of the TRO and Writ of Preliminary Injunction stopping the indictment of the Globe Asiatique executives and some PAG-IBIG officials for syndicated estafa arising from the alleged anomalous housing project in Pampanga.

Judge Mislang explained that he stopped the criminal prosecution upon petition of Globe Asiatique Realty Holdings Corp. (GA) because of the existence of a prejudicial question in a civil case now pending before a Makati Court. He claimed that the issues involved in said civil case bears a direct relation to the estafa charges which PAG-IBIG and the NBI filed before the DOJ such that the resolution of these issues will determine the guilt or innocence of those charged.

To be sure, the existence of a prejudicial question is really a ground to suspend the criminal action. There is a prejudicial question: (a) when the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed (Section 7, Rule 111 Rules of Court).

The pending civil case is a suit filed by GA and its owner Delfin Lee against PAG-IBIG in Makati Regional Trial Court (RTC) Branch 158 of Judge Mislang. It is an action for specific performance praying that PAG-IBIG be ordered to comply with agreements allowing it to update defaulting accounts or to replace defaulting borrowers with new ones. On the other hand, the criminal complaint filed by PAG-IBIG and the NBI with the Department of Justice (DOJ) where the DOJ has already found probable cause to indict Lee, his son Dexter and three others stemmed from the alleged anomalous P6.5 billion loans that PAG-IBIG granted to “ghost borrowers” who supposedly bought units in GA’s housing project in Pampanga.

Right away it can be seen that the civil case filed by GA, Lee et.al talks about “defaulting accounts” and “defaulting borrowers” whereas the subsequent criminal indictment of the DOJ for   syndicated estafa which was stopped, mentions “ghost borrowers”. Obviously, the issues are not similar or intimately related.

Of course it can be argued that PAG-IBIG can be compelled to update the “defaulting accounts” and replace the “defaulting borrowers” with new ones only if the borrowers are indeed real and not ghost borrowers. So it can be claimed that this issue of whether the borrowers are real or fictitious in the civil case is really similar or closely related to the issue about “ghost borrowers” raised in the subsequent criminal case. Apparently Judge Mislang saw it in this light. Still there are circumstances here which should have prompted him to exercise a little bit more prudence before issuing the TRO and the injunction.

For instance, did Judge Mislang consider that the complaint against Lee and others was already being investigated by the DOJ Task Force on Securities and Business Scam for the past eight months when the civil case for specific performance was filed? If he did, he would have realized that the filing of this civil action was really intended to derail the criminal proceedings because of the alleged prejudicial question. In this connection, the Supreme Court (SC) has already ruled in the case of First Producers Holdings vs. Co.(336 SCRA 551) that even if there is a petition to suspend the criminal case on the ground that a prejudicial question existed, “the suspension may not be had where the peculiar circumstances of the case clearly show that it was merely a ploy to delay the resolution of the criminal case and vex the already overloaded court system with an unnecessary case”. Continuing, the SC further declared: “The rules of procedure, including the rule on prejudicial questions, were conceived to afford parties an expeditious and just disposition of cases, and this court will not countenance their misuse and abuse to frustrate or delay the delivery of justice. To allow in the instant case the civil action raising the prejudicial question may give rise to the evils of forum shopping”.

Indeed, the civil action here involves the civil liability of GA, Lee and others arising from fraud allegedly committed. Under Article 33 of the Civil Code in relation to Rule 111 of the Rules of Court, such civil action shall proceed independently of the criminal prosecution. So the issues in the civil action cannot really be considered intimately related to the issue in the criminal case. Indeed, GA, Lee and others may be held civilly liable for the alleged P6.5 billion anomalous loans regardless of whether the borrowers are real or ghost borrowers.

But even assuming that a prejudicial question really exists, the rule is that the petition for suspension of the criminal action may be filed in the office of the prosecutor or the court conducting the preliminary investigation; or when the criminal action has been filed in court, the petition for suspension should be filed in the same criminal action (Rule 11 Section 6). Here, the Makati RTC Branch 158 of Judge Mislang is not the court conducting the preliminary investigation, neither is it the court where the criminal action is pending. Instead of issuing the   TRO and the injunction, Judge Mislang should just have allowed the criminal charges to be filed in the proper court which could then act on the petition for suspension of the criminal proceedings on the ground of prejudicial question.

There may also be something questionable in the action of the investigating prosecutors when it upgraded the charges from simple estafa which is a bailable offense, to syndicated estafa which is a non-bailable offense, as Lee and the other accused claimed. In such case their remedy is to go to the SC for review said findings and for possible issuance of the TRO.

Apparently, if Judge Mislang had exercise a little bit more of prudence, he should not have issued the TRO and the injunction, and raised a lot of eye-brows.