Gloria Macapagal-Arroyo v. de Lima et al., G.R. No. 199034/Jose Miguel Arroyo v. de Lima et al., G.R. No. 199046

Republic of the Philippines
Supreme Court
Manila

EN BANC

GLORIA MACAPAGAL-ARROYO,Petitioner,

-versus-

Hon. LEILA M. DE LIMA, in her

capacity as Secretary of the Department

of Justice and RICARDO A. DAVID,

JR., in his capacity as Commissioner of

the Bureau of Immigration,

Respondents.

X- – – – – – – – – – – – – – – – – – – – – – – -X

G.R. No. 199034

JOSE MIGUEL T. ARROYO,Petitioner,

-versus-

Hon. LEILA M. DE LIMA, in her

capacity as Secretary, Department of

Justice, RICARDO V. PARAS III, in

his capacity as Chief State Counsel,

Department of Justice and RICARDO

A. DAVID, JR., in his capacity as

Commissioner, Bureau of Immigration,

Respondents.

X- – – – – – – – – – – – – – – – – – – – – – – -X

G.R. No. 199046

TEMPORARY RESTRAINING

ORDER

TO: Hon. LEILA M. DE LIMASecretary

RICARDO V. PARAS III

Chief State Counsel

Department of Justice (DOJ)

Padre Faura St., Ermita, Manila

RICARDO A. DAVID, JR.

Commissioner

Bureau of Immigration (BOI)

2nd Floor BOI Building

Magallanes Drive, Intramuros, Manila

 

GREETINGS:

WHEREAS, the Supreme Court, on November 15, 2011, adopted a resolution in the above-entitled cases, to wit:

G.R. No. 199034 (Gloria Macapagal-Arroyo vs. Hon. Leila M. De Lima, in her capacity as Secretary of the Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of Immigration) and G.R. No. 199046 (Jose Miguel T. Arroyo vs. Hon. Leila M. de Lima, in her capacity as Secretary, Department of Justice, Ricardo V. Paras III, in his capacity as Chief State Counsel, Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner, Bureau of Immigration).- Acting on the Special Civil Actions for Certiorari and Prohibition with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, and mindful of the underlying issues in the cases—the right to life (which is the highest right under the Constitution) and its supporting rights, including the right to travel—the Court Resolved to

(a) CONSOLIDATE the above-entitled cases;

(b) REQUIRE the respondents to COMMENT on the consolidated petitions NOT LATER THAN NOVEMBER 18, 2011;

(c) ISSUE a TEMPORARY RESTRAINING ORDER in the consolidated petitions, enjoining the respondents from enforcing or implementing DOJ Department Circular No. 41 and Watchlist Order Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated September 6, 2011 and 2011-573 dated October 27, 2011, subject to the following conditions:

(i) The petitioners shall post a cash bond of Two Million Pesos (P2,000,000.00) payable to this Court within five (5) days from notice hereof. Failure to post the bond within the aforesaid period will result in the automatic lifting of the temporary restraining order;

(ii) The petitioners shall appoint a legal representative common to both of them who will receive subpoena, orders and other legal processes on their behalf during their absence. The petitioners shall submit the name of the legal representative, also within five (5) days from notice hereof; and

(iii) If there is a Philippine embassy or consulate in the place where they will be traveling, the petitioners shall inform said embassy or consulate by personal appearance or by phone of their whereabouts at all times; and

(d) SET the consolidated cases for ORAL ARGUMENTS on November 22, 2011, Tuesday, at 2:00 p.m. at the New Session Hall, New Supreme Court Building, Padre Faura, Ermita, Manila.

The Court further Resolved to NOTE the

(a) Very Urgent Manifestation and Motion dated November 9, 2011 filed by the Office of the Solicitor General (OSG) for respondents Hon. Leila M. De Lima, in her official capacity as Secretary of the Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of Immigration in G.R. No. 199034;

(b) Manifestation and Motion dated November 10, 2011 filed by the OSG for respondents Hon. Leila M. De Lima and Ricardo A. David, Jr. in G.R. No. 199034;

(c) Supplemental Petition dated November 13, 2011 filed by counsel for petitioner in G.R. No. 199034;

(d) Comment/Opposition (on/to the Very Urgent Manifestation and Motion dated November 9, 2011) dated November 14, 2011 filed by counsel for petitioner in G.R. No. 199034;

(e) Very Urgent Manifestation and Motion dated November 9, 2011 filed by the OSG for respondents Hon. Leila M. de Lima, in her capacity as Secretary of the Department of Justice, Ricardo V. Paras III, in his capacity as Chief State Counsel and Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of Immigration in G.R. No. 199046; and

(f) Urgent Manifestation filed by counsel for petitioner in G.R. No. 199046.

The temporary restraining order shall be immediately executory. Justices Antonio T. Carpio and Bienvenido L. Reyes have reserved the right to submit their dissenting opinions. Leonardo-De Castro, J., on official business. Del Castillo, J., on official leave. (adv156 & 157)

NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondents, your agents, representatives, or persons acting in your place or stead, are hereby ENJOINED from enforcing or implementing DOJ Department Circular No. 41 and Watchlist Order Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated September 6, 2011 and 2011-573 dated October 27, 2011.

GIVEN by the Supreme Court of the Philippines, this 15th day of November 2011.

ENRIQUETA E. VIDAL

Clerk of Court

By:

FELIPA B. ANAMA

Deputy Clerk of Court En Banc

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EN BANC

G.R. No. 199034 — GLORIA MACAPAGAL-ARROYO, Petitioner, v. HON. LEILA M. DE LIMA, in her capacity as SECRETARY OF JUSTICE, ET AL., Respondents.

G.R. No. 199046 — JOSE MIGUEL T. ARROYO, Petitioner, v. SECRETARY LEILA M. DE LIMA, in her capacity as SECRETARY OF JUSTICE, ET AL., Respondents.

Promulgated:

November 15, 2011

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DISSENTING OPINION

CARPIO, J.:

I vote to defer action on petitioners’ prayer for a temporary restraining order until after the Government files its Comment and after oral arguments are heard on the matter. This should take not more than five working days, which is brief enough so as not to prejudice petitioners in any way. While the right to travel is a constitutional right that may be impaired only “in the interest of national security, public safety or public health, as may be provided by law,” there are recognized exceptions other than those created by law. Foremost is the restriction on the right to travel of persons charged of crimes before the courts. Another is the restriction on persons subpoenaed or ordered arrested by the Senate or House of Representatives pursuant to their power of legislative inquiry.

There are also restrictions on the right to travel imposed on government officials and employees. For example, Office of the Court Administrator Circular No. 49-2003(B) requires judges and court personnel “to secure a travel authority from the Office of the Court Administrator” before they can travel abroad even during their approved leave of absence or free time. This restriction to travel abroad is imposed even in the absence of a law.

In the present case, petitioners are already undergoing preliminary investigation in several criminal cases, and charges may be filed before the courts while petitioners are abroad. In fairness to the Government which is tasked with the prosecution of crimes, this Court must hear first the Government in oral argument before deciding on the temporary restraining order which if issued could frustrate the Government’s right to prosecute. The Government must be heard on how the charges against petitioners could proceed while petitioners are abroad.

Accordingly, I vote to (1) defer action on petitioners’ prayer for a temporary restraining order, (2) require respondents to file their Comments on or before 21 November 2011, (3) hold oral arguments on 22 November 2011 at 2 o’clock in the afternoon, and (4) decide whether to issue a temporary restraining order immediately upon the conclusion of the oral arguments.

ANTONIO T. CARPIO

Associate Justice

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EN BANC

G.R. No. 199034 – GLORIA MACAPAGAL – ARROYO, Petitioner, v. HON. LEILA M. DE LIMA, in her capacity as SECRETARY OF JUSTICE, ET AL., Respondents.

G.R. No. 199046 – JOSE MIGUEL T. ARROYO, Petitioner, v. SECRETARY LEILA M. DE LIMA, in her capacity as SECRETARY OF JUSTICE, ET AL., Respondents.

Promulgated:

November 15, 2011

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DISSENTING OPINION

REYES, J.:

I DISAGREE with the majority’s decision to issue a Temporary Restraining Order (TRO) against the enforcement of the Department of Justice’s (DOJ) Department Circular No. 411, Watchlist Order2 dated August 9, 2011, Amended Order3 dated September 6, 2011, and Watchlist Order4 dated October 27, 2011.

It is well-settled, to the point of being axiomatic, that any injunctive relief will not be issued if it will result to a premature disposition or a prejudgment of the case on its merits. Also, any application for the restraint on the performance of an act will not be given due course if it will presume the validity of petitioners’ claims, relieving them of the burden of proving the same. In Boncodin v. National Power Corporation,5 this Court reversed the trial court’s issuance of an injunctive writ that caused the burden of proof to shift from the claimant to the defendant:

By issuing a writ premised on that sole justification, the trial court in effect sustained respondent’s claim that [the] petitioner and Auditor Dissenting Opinion 2 G.R. No. 199034 & 199046 Cabibihan had exceeded their authority in ordering the suspension of the implementation of the step increments; and that the suspension was patently invalid or, at the very least, that the memorandum and circular were of doubtful validity. Thus, the lower court prejudged the main case and reversed the rule on the burden of proof, because it assumed to be true the very proposition that respondent-complainant in the RTC was dutybound to prove in the first place.6

Similarly, in Valley Trading Co., Inc. v. Court of First Instance of Isabela, Branch II, et al.7, this Court observed the same principle and emphatically stated that an injunctive relief will not issue if the applicant’s allegations fall short of overcoming the presumption of validity in favor of the law:

Equally pertinent is the rule that courts should avoid issuing a writ of preliminary injunction which, in effect, would dispose of the main case without trial. In the present case, it is evident that the only ground relied upon for injunction relief is the alleged patent nullity of the ordinance. If the court should issue the desired writ, premised on that sole justification therefor of [the] petitioner, it would be a virtual acceptance of his claim that the imposition is patently invalid or, at the very least, that the ordinance is of doubtful validity. There would, in effect, be a prejudgment of the main case and a reversal of the rule on the burden of proof since it would assume the proposition which the petitioner is inceptively duty bound to prove.

Furthermore, such action will run counter to the well settled rule that laws are presumed to be valid unless and until the courts declare the contrary in clear and unequivocal terms. A court should issue a writ of preliminary injunction only when the petitioner assailing a statute has made out a case of unconstitutionality or invalidity strong enough to overcome, in the mind of the judge, the presumption of validity, aside from a showing of a clear legal right to the remedy sought.8 x x x.

In ABAKADA Guro Party List, et al. v. Hon. Purisima, et al.,9 this Court extended the presumption of validity accorded to legislative issuances to rules and regulations issued by administrative agencies:

Administrative regulations enacted by administrative agencies to implement and interpret the law which they are entrusted to enforce have the force of law and are entitled to respect. Such rules and regulations partake of the nature of a statute and are just as binding as if they have been written in the statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality and legality until they are set aside with finality in an appropriate case by a competent court.10 (citations omitted)

Consistent with the foregoing, the assailed Department Circular No. 41 and the Watchlist Orders issued thereunder enjoy such presumption of constitutionality and regularity; the Watchlist Orders were in accordance with the provisions of Department Circular No. 41 which, itself, was issued in the performance of the DOJ’s mandate under Section 3, Chapter I, Title III and Section 1, Chapter I, Title III of Book IV of Executive Order 292, otherwise known as the “Administrative Code of 1987” to “administer the criminal justice system in accordance with the accepted processes thereof.” (See Department Circular Nos. 17 and 18, the predecessors of Department Circular No. 41). It is incumbent upon the petitioners to prove that the assailed issuances are unconstitutional: that Department Circular No. 41 was issued outside the confines of the Administrative Code, or the Administrative Code does not authorize the DOJ to issue such a Circular, or that the performance of its functions under the Administrative Code does not justify the imposition of such a restraint. Regrettably, by issuing the TRO, thus, restraining the enforcement of the assailed issuances, this Court had effectively given credence to the petitioner’s claims against their validity, which, at this stage of the proceedings, are mere allegations and no other.

I would likewise call the attention of the majority to the August 23, 2011 Order issued by this Court in G.R. No. 197854 entitled Jose Miguel T. Arroyo v. Sec. Leila M. De Lima, etc., et al. where Jose Miguel Arroyo’s (MR. ARROYO) application for a TRO against Department Circular No. 41 and Watchlist Order No. 2011-410 issued by the DOJ on August 4, 2011. Therein, the Court’s primordial consideration in issuing the TRO was the fact that “the petitioner is not an accused in a criminal case, nor is a respondent in any preliminary investigation, and is not subject of any warrant of arrest in the on-going Senate investigation on the purchase by the Philippine National Police of helicopters.” This, to me, is an unequivocal testimony to the presumption of validity accorded to Department Circular No. 41 and the Watchlist Order issued pursuant to its provisions, considering that the TRO was issued not because of the supposed infringement on Mr. Arroyo’s right to travel but because of the DOJ’s clear deviation from the provisions of Department Circular No. 41. Under Section 2 of the Circular, it is only in the following instances that a Watchlist Order can be issued against any person: (a) there is a criminal case pending against him before any court within this jurisdiction; (b) there is a criminal case against him pending preliminary investigation, petition for review or motion for reconsideration before the DOJ or any of its prosecution offices; and (c) the Secretary of Justice deems it proper motu proprio or upon the request submitted by any government agency, commission, task force or similar offices created by the Office of the President under Republic Act No. 9208 in connection with an investigation it is conducting and/or in the interest of national security, public safety or public health. Evidently, that there was a restraint on Mr. Arroyo’s right to travel per se is insufficient to overcome the presumption of constitutionality against the Circular such that what moved the Court to rule in Mr. Arroyo’s favor was the dubiety of whether an investigation conducted by the Senate may be a ground to issue a Watchlist Order.

The contrary clearly obtains in this case. The petitioner Gloria Macapagal Arroyo (GMA) is subject of a preliminary investigation in three (3) cases pending before the DOJ: (a) Danilo Lihayhay v. Gloria Macapagal-Arroyo (Docket No. XVI-INV-10H-00251); (b) Francisco I. Chavez v. Gloria Macapagal-Arroyo, et al. (Docket No. XVIX-INV-11D-00170); and (c) Francisco I. Chavez v. Gloria Macapagal-Arroyo, et al. (Docket No. XVI-INV-11F-00238). She is likewise subject of a preliminary investigation by DOJ-Commission on Elections (COMELEC) Fact-Finding Committee for electoral sabotage and violation of the Omnibus Election Code in DOJ-COMELEC Fact Finding Committee v. Abalos, Sr., et al. (DOJ-COMELEC Case No. 001-2011) and Aquilino Pimentel III v. Gloria Macapagal-Arroyo, et al. (DOJ-COMELEC Case No. 002-2011). Mr. Arroyo, on the other hand, is also being investigated by the DOJ-COMELEC Fact-Finding Committee for the electoral sabotage complaint filed by Sen. Aquilino Pimentel III. A cursory reading of Sections 2 (c) of Department Circular No. 41 shows that the issuance of a Watchlist Order is allowed under such circumstances, suggesting that the Secretary of Justice acted within the confines thereof, and this, in turn, supports the observance of the rule on the presumption of regularity.

Also, this is a petition for certiorari under Rule 65 of the Rules of Court, an exercise of the remedy against grave abuse of discretion or lack of jurisdiction. Grave abuse of discretion is defined as the capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.11 The burden of proof is on the petitioners’ part to demonstrate that the assailed issuances were issued with grave abuse of discretion or without jurisdiction. The grant of the petitioners’ prayer for TRO presupposed that the DOJ had indeed acted capriciously, whimsically or outside the boundaries of its vested jurisdiction on the basis of mere allegations.

A cursory examination of the Petition and the attachments thereto easily reveals that she failed to demonstrate the existence of the following requisites for the issuance of an injunctive writ: (a) the applicant must have a clear and unmistakable right to be protected, that is, a right in esse; (b) there is a material and substantial invasion of such right; (c) there is an urgent need for the writ to prevent irreparable injury to the applicant; and (d) there is no other ordinary, speedy and adequate remedy to prevent the infliction of irreparable injury. Even on the assumption that GMA has a clear and unmistakable right to be protected, the documents attached to her Petition belie her claim of urgency for the issuance of a TRO.

There is nothing in the medical certificate, dated October 1, 2011 issued by Dr. Juliet Gope-Cervantes and dated October 24, 2011 issued by Dr. Mario R. Ver, which would indicate that GMA would suffer irreparable injury in the event she is disallowed from seeking medical treatment abroad. Thus:

Ms. Macapagal-Arroyo has metabolic bone disease and osteoporosis due to Hypoparathyroidism with electrolyte imbalance and Vitamin D deficiency. The Minerva Brace should remain in place for at least three months, and barring any complications she should be fully recovered from her spine surgery in six to eight months. Her metabolic bone disease needs lifetime maintenance treatment.12 x x x

Her last follow-up on October 20, 2011 showed better evidence on X Ray of bone growth taking place in the anterior column such that the head band part of Lehrman Minerva brace was removed. Immobilization is now down to SOMI (Sterno-Mandibular-Occipito Immobilization) brace. She has continued her Physical therapy as out patient. Her serum Ca and Vitamin D were normal with the maintenance medication given but the parathyroid hormone remain deficient.

The SOMI brace is planned to be shifted to Miami J collar on her next follow up on November 8, 2011, that is 11 to 12 weeks post-anterior column reconstruction.13

The medical certificate dated October 22, 2011 issued by Dr. Roberto Mirasol is also of the same tenor:

Once she was metabolically stable she underwent another surgery – anterior fusion with titanium mesh and bone grafts. She gradually improved. Repeated calcium and magnesium determinations were done and corrected. Repeated iPTH determinations were consistently suppressed. She was discharged improved with advice to keep a high calcium diet, continue taking her calcium, magnesium and vitamin D supplements.14

From the foregoing, it appears that the medical attention being received by GMA is adequate as she is out of danger and her condition is continuously improving. Her claim of “urgency” and life-threatening conditions is, at the very least, debatable and this should have militated against the issuance of a TRO. Prudence and to avoid prejudging the case on its merits, giving the Government an opportunity to be heard is definitely not much too ask.

On the other hand, if it was the petitioners’ right to life and the threat posed thereto by the assailed issuances that was foremost in the majority’s mind when they decided to issue the TRO, there would have been no basis to issue a TRO in Mr. Arroyo’s favor as there is nothing in his Petition where it was alleged that his right to life was being threatened or endangered. In his earlier Petition, Mr. Arroyo was invoking for his right to travel in his earlier Petition. It is no different in this present Petition; only that, the Watchlist Order he is now attacking as unconstitutional is based on his being preliminarily investigated by the DOJ-COMELEC Fact Finding Committee. However, the issuance of a Watchlist Order on this ground is allowed under the Circular; thus, the basis for the Court’s issuance of a TRO in Mr. Arroyo’s first Petition does not exist in this case. If the infringement of his right to travel was not enough for this Court to issue a TRO in Mr. Arroyo’s first Petition, it is certainly confounding as to why it is different in this case.

Finally, in Ermita v. Hon. Jenny Lind R. Aldecoa-Delorina, et al.,15 this Court, emphatically stated that the judicial power to enjoin the implementation of an official issuance, which enjoys the presumption of validity, must be wielded and exercised with extreme caution, thus:

It is well to emphasize that the grant or denial of a writ of preliminary injunction in a pending case rests on the sound discretion of the court taking cognizance thereof. In the present case, however, where it is the Government which is being enjoined from implementing an issuance which enjoys the presumption of validity, such discretion must be exercised with utmost caution. Executive Secretary v. Court of Appeals, enlightens:

In Social Security Commission v. Judge Bayona, we ruled that a law is presumed constitutional until otherwise declared by judicial interpretation. The suspension of the operation of the law is a matter of extreme delicacy because it is an interference with the official acts not only of the duly elected representatives of the people but also of the highest magistrate of the land.

x x x

The possible unconstitutionality of a statute, on its face, does not of itself justify an injunction against good faith attempts to enforce it, unless there is a showing of bad faith, harassment, or any other unusual circumstance that would call for equitable relief. The “on its face” invalidation of statutes has been described as “manifestly strong medicine,” to be employed “sparingly and only as a last resort,” and is generally disfavored.

I believe that this Court should have exercised the same circumspection and caution. It may be argued that the constitutionality of the assailed issuances had not been prematurely determined by the majority’s decision to issue the TRO. However, common sense dictates that granting the TRO and granting this Petition lead to the same result: the petitioners may leave the country anytime they wish and a cloud is cast over the constitutionality and validity of the assailed issuances.

In conclusion, and in view of the foregoing, it is my position that it is best to require the respondents to file a comment on the petitions, and hear them out in oral argument, instead of issuing a TRO ex parte.

IN VIEW THEREOF, I vote to: (a) defer action on the prayer for a TRO; (b) order the public respondents to Comment on the consolidated Petitions on or before November 21, 2011; and (c) set the case for oral arguments on November 22, 2011 at 2:00 p.m.; and (d) immediately after the conduct and conclusion of the oral arguments, resolve the issue of whether or not a temporary restraining order may be issued.

BIENVENIDO L. REYES

Associate Justice

Notes:

1 Rollo of G.R. No. 199034, pp. 59-61.

2 Id. at pp. 45-46.

3 Id. at pp. 47-48.

4 Id. at pp. 49-58.

5 G.R. No. 162716, September 27, 2006, 503 SCRA 611.

6 Id. at p. 629.

7 G.R. No. 49529, March 31, 1989, 171 SCRA 501.

8 Id. at pp. 507-508.

9 G.R. No. 166715, August 14, 2008, 562 SCRA 251.

10 Id. at pp. 288-289.

11 Marcelo G. Ganaden, et al. v. Hon. Office of the Ombudsman, et al., G.R. Nos. 169359-61, June 1,

2011.

12 Rollo, p. 67.

13 Id. at p. 69.

14 Id. at p. 86.

15 G.R. No. 177130, June 7, 2011.

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G.R. No. 199034 –GLORIA MACAPAGAL-ARROYO v. HON. LEILAM. DE LIMA, in her capacity as SECRETARY OF THE DEPARTMENT OF JUSTICE, and RICARDO A. DAVID, JR., in his capacity as COMMISSIONER OF THE BUREAU OF IMMIGRATION

G.R. No. 199046 – JOSE MIGUEL T. ARROYO v. SEC. LEILA M. DE LIMA, in her capacity as SECRETARY, DEPARTMENT OF JUSTICE, RICARDO V. PARAS III, in his capacity as CHIEF STATE COUNSEL, and RICARDO A. DAVID, JR., in his capacity as COMMISSIONER, BUREAU OF IMMIGRATION

Promulgated:

November 15, 2011

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DISSENTING OPINION

SERENO, J.:

When this matter was called this morning, it was clear that not one among the members of this Court was suggesting that petitioners have no constitutional rights that this Court must vigilantly protect. No one was saying that petitioners should not be granted any remedy. The bone of contention before the Court was, simply, whether to allow public respondents their right to due process by giving them the right to comment on the petition within a non-extendible period of five (5) days immediately after which oral arguments were to be heard and the prayer for a Temporary Restraining Order (TRO) immediately decided, as suggested by the minority, or, to deny respondents such right by presuming fully the correctness of all the allegations of the petitions, and thus grant the prayer for TRO. On this matter, the vote of this Court was 8-51 denying the right of public respondents to be heard before the grant of petitioners’ prayer for a TRO.

A. The Right of the State to be Heard
versus the Right Claimed by
Petitioners

The Rules of Court and jurisprudence prescribe very stringent requirements before a TRO can be issued. Among these is the requirement that the TRO “may be granted only when: (a) the application or proceeding is verified, and shows facts entitling the applicant to the relief demanded…” (Rule 58, Section 4)

A petition that contains a false verification can have many consequences among which are: (a) the Petition can be dismissed or denied, (b) the person making the false verification can be punished for contempt of court, and (c) the person making the false verification can be punished for perjury.

So strong is the requirement of truthful allegations in pleadings filed before the Court that many adverse inferences and disciplinary measures can be imposed against a person lying before the Court. This requirement of truthfullness is especially important when a provisional remedy, and more so when the remedy is sought to be granted ex-parte, is under consideration by the Court. When on its face, the material averments of a pleading contain self-contradictions, the least that the Court should do, is consider the other side of the claim.

This is the situation with the Petition of former President Gloria Macapagal-Arroyo. It appears that she has given inconsistent, and probably untruthful statements before this Court.

In the instant Petition, she claims that:

It is petitioner GMA’s desire to consult with medical experts of her choice and to receive specialized care and medical attention from other institutions. Having been immobilized by a debilitating condition for the last few months, and having been subject to long operations and their complications, she seeks other experts’ perspective and to receive optimum care to ensure that she will not be disabled for the rest of her life and that her recovery will no longer be impeded by complications, which she has unfortunately experienced for the last few months. (par. 4.18, p 31 of the Petition)

The inability of petitioner GMA to leave for abroad to alleviate, or at least, prevent the aggravation of her hypoparathyroidism and metabolic bone disorder has given rise to the danger that the said conditions afflicting petitioner GMA may become permanent and incurable. (par. 5.02 [d], p. 35 of the Petition)

However, her own attachments belie the immediate threat to life she claims.

First, her own attending physician, Dr. Juliet Gopez-Cervantes, certified that petitioner should fully recover from her spine surgery in six to eight months, barring any complications:

This is to certify that Ms. Gloria Macapagal-Arroyo, 64 years old, female was confined at St. Like’s Medical Center-Global City from July 25 to August 5, 2011 because of Cervical Spondylotic Radiculopathy secondary to mixed Degenerative Discs and Osteophytes with Multilevel Neural Canal Stenosis with Retrolisthesis C4C5 and C5C6.

On July 29th, she underwent Anterior Cervical Decompression (Disectomy/Foraminotomy) and Fusion (ACDF) C3 to C7 with titanium locked plating/peek cages and demineralized bone matrix (DBM), which was performed by Dr. Mario R. Ver, an orthopedic spine surgeon.

On August 9th she was readmitted to St. Luke’s because of implant failure. There was dislodgement of the titanium locked plate/screws and peek cages, secondary to adult idiopathic latent hypoparathyroidism and concomitant post-operative prevertebral infection.

On August 10th she underwent a second surgery by a surgical team headed by Dr. Mario R. Ver to remove the above-mentioned anterior cervical implants and to put new implants in place. Posterior instrumented fusion C3 to T2 using lateral mass titanium screws C3 to C6, titanium pedicle screws C7 to T2, with autologous bone graft from right posterior ilium was performed. A halo vest was applied in place.

On August 24th she underwent a third surgery, an anterior disectomy C7 to T1, “channel” copectomy C4 to C7 and fusion C3 to T1 using titanium mesh cage filed with autologous bone graft from the left anterior iliac crest (ICBG) and mixed with DBM. She was discharged ambulatory, with the halo vest in place, on September 2, 2011.

She was readmitted on September 14th for repeat CT scan, and on the same day the halo vest was removed and replaced with a Minerva Brace. She was discharged the following day. Subsequent X-Rays show there is some bone growth in the surgical site.

Ms. Macapagal-Arroyo has metabolic bone disease and osteoporosis due to Hypoparathyroidism with electrolyte imbalance and Vitamin D deficiency. The Minerva Brace should remain in place for at least three months, and barring any complications she should be fully recovered from her spine surgery in six to eight months. Her metabolic bone disease needs lifetime maintenance treatment.2

This finding was also shared by Dr. Mario R. Ver, the same doctor who performed the surgeries on petitioner:

Barring any complication she should be fully recovered from her cervical spine surgery six to eight months from the time of [discharge]. Her metabolic bone disease however needs lifetime maintenance.3

Second, petitioner’s travel itinerary abroad, for which the instant provisional remedy is being sought, appears not solely for medical reasons as claimed. In the Letter dated 02 November 2011 of Atty. Anacleto M. Diaz, counsel for petitioner, only three countries were identified as part of petitioner’s medical consultations, namely Singapore (24 October 2011, 31 October 2011 and 08 November 2011), Germany (17 November 2011) and Spain (14 November 2011).4

However, the travel authority issued by the House of Representatives on 19 October 2011 previously indicated other countries, specifically, the United States of America and Italy:

Respectfully referred to the Honorable Secretary of Foreign Affairs, Manila, hereby amending the Travel Authority dated September 16, 2011, copy attached, of Honorable Gloria Macapagal-Arroyo to the United States of America and Germany and to include Singapore, Spain and Italy to seek medical consultations with specialists, for the period October 22 – December 5, 2011 instead of September 18 – October 11, 2011.. Honorable Macapagal-Arroyo will travel with her spouse, Atty. Jose Miguel T. Arroyo and to include her Aide-de-Camp, 1Lt. Jane B. Glova and private nurse, Ms. Maria Saharah V. Casuga.5

If there is indeed some medical urgency and necessity for petitioner to travel abroad, these should logically be limited only to locations where she seeks medical advice from known experts in the field. Why then should there be other countries of destinations that are included in her travel authority but not specifically mentioned for purposes of medical consultations? What is the non-medical purpose of her visit to these other countries?

Indeed, the inconsistencies of petitioner’s travel purpose to these two countries were discussed in the Order dated 08 November 2011 Department of Justice, where it referred to the earlier travel authority issued by the House of Representatives.6 The Order reads in part:

1. Second Endorsement dated September 1, 2011 of Speaker Feliciano Belmonte, Jr., to the Secretary of Foreign Affairs, of the Travel Authority granted to the Applicant to participate in the “Clinton Global Initiative Meeting”, aside from the medical consultations in New York, USA, and for medical consultation in Munich, Germany, both from September 28 to October 6, 2011, and to participate in the Regional Consultation meetings of the International Commission Against Death Penalty in Geneva, Switzerland on October 10-11, 2011. (p. 3 of the Order)

In any case, the list of countries where Applicant seeks to be allowed to go is a travel tour of sorts, and which is patently incongruent with her purpose of seeking emergency medical treatment for a rare medical condition. She seeks to travel, initially, to seven countries, six of them purportedly for medical consultations, and originally, two of them for conferences, in New York and Geneva. This original itinerary of seven countries, before this Office required a definitive itinerary from Applicant, belies the so-called medical purpose or the emergency nature of Applicant’s travel abroad. (p. 7 of the Order) [emphasis supplied]

Contrary to her assertions of urgency and life-threatening health conditions, petitioner had expressed her intention to participate in two conferences abroad during her supposed medical tour. It seems incongruous for petitioner who has asked the Department of Justice and this Court to look with humanitarian concern on her precarious state of health, to commit herself to attend these meetings and conferences at the risk of worsening her physical condition.

If she has been shown to be prone to submitting to this Court documents belying her own allegations, this Court must pause, and at the very least, listen to the side of the Government. Indeed, petitioners’ applications for authority to travel with the House of Representatives and the Endorsement of the Speaker of the House are crucial documentary evidence that should have been included and considered in the course of granting an ex-parte temporary restraining order, but these were unfortunately, not made available in their entirety by the petitioner in her Petition. That is why a twosided hearing before the Court, and not a mere ex-parte proceeding should have occurred before the majority granted the TRO.

B. Petitioner Former President Arroyo
Must Explain Why She Is Claiming
That Her Constitutional Right Is
Being Violated, When The Claimed
Violation Is Being Caused By Her
Own Administrative Issuance

To a certain degree, the doctrine on equitable estoppel should guide the hand of this Court. In its simplest sense, estoppel prevents a person from disclaiming his previous act, to the prejudice of another who relied on the representations created by such previous act. The logic behind the doctrine comes from the common societal value that a person must not be allowed to profit from his own wrong.

While this Court will not hesitate to protect former President Arroyo from the adverse effect of her own act—whose validity she now denounces—in order to protect her constitutional right, the minimum requirement of fairness demands that the government must be heard on the matter for two important reasons.

First, by adopting Department of Justice (DOJ) Circular No. 41, the Arroyo Government must be presumed to have believed in and implicitly represented that it is valid and constitutional. An explanation from her must be heard on oral argument on why this no longer seems to be the case. Such disclosure will reveal whether she is dealing in truth and good faith with this Court in respect of her allegations in her Petition, a fundamental requirement for her Petition to be given credence.

Second, it will reveal whether in fact her administration then believed that there was statutory basis for such issuance, which is important to resolving the question of the existence of a basis, including policy or operational imperatives, for the administrative issuance that is DOJ Circular No. 41.

Petitioner Arroyo comes before this Court assailing the constitutionality of the said Circular, which was issued by Alberto Agra, the Justice Secretary appointed by petitioner during her incumbency as president. This Circular thus bears the stamp of petitioner as President ordering the consolidation of the rules governing Watchlist Orders. Under the doctrine of qualified political agency, the acts and issuances of Agra are acts of the President and herein petitioner herself. As the Court recently ruled:

The President’s act of delegating authority to the Secretary of Justice by virtue of said Memorandum Circular is well within the purview of the doctrine of qualified political agency, long been established in our jurisdiction.

Under this doctrine, which primarily recognizes the establishment of a single executive, “all executive and administrative organizations are adjuncts of the Executive Department; the heads of the various executive departments are assistants and agents of the Chief Executive; and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.”7

Thus, the acts which petitioner claims to have violated her constitutional rights are the acts of her alter ego, and consequently, her own.

C. This Court Must Face The Risk Of
Flight Frontally, And Ensure That
It Is Not Unduly Favoring An
Individual To The Prejudice Of The
State, And To Do This, Must At
Minimum, Allow Government To
Be Heard Before Granting The
TRO

The court cannot evade the question that is uppermost in the minds of many—is this request for a TRO driven by petitioners’ desire to evade the investigatory and judicial process regarding their liability for certain alleged criminal acts? If the risk of flight is high, then this Court must adopt either of the following approaches: (1) deny the right to travel, or (2) allow travel subject to certain restrictions.

It was suggested by a colleague that, anyway, the State is not powerless to compel the return of petitioners in case they will seek to evade the jurisdiction of our courts or the service of sentence. It can request assistance from Interpol, invoke courtesies of comity with other countries, and seek mutual legal assistance and extradition from countries with which the Philippines has such treaties. The problem with such a proposition is that the Philippines has not had much success in waging international campaigns to recover the Marcos ill-gotten wealth or to effect the arrest of many criminal escapees. Operationally, such processes are very difficult and at times, illusory. Should this Court then lend itself to the possibility of creating the dilemma the country will face if, indeed, petitioners will evade the jurisdiction of local courts, by not simply deferring for a week the issuance of the TRO until the State has been heard on the merits? Obviously, the Court is wrong not to take the path of prudence.

Petitioners are presumed innocent until proven guilty, that is true. This does not mean, however, that the State should be deprived of the opportunity to be heard on the question of whether it has certain rights that must be protected vis-à-vis persons under investigation during a preliminary investigation.

It has been held in one case8 that it is not only through court order that the right to travel may be impaired. In fact, the Supreme Court itself has issued stringent regulations on the right to travel, including the denial of the travel authority request of employees who may be undergoing preliminary investigation. An important question thus must be asked: why is the majority not even willing to hear the government before issuing the TRO, when, in the supervision of judiciary employees, a mere administrative officer of the Supreme Court, and not a judicial officer, may deny the right to travel?

It is possibly incongruent for the Court to hinder the exercise of the DOJ Secretary’s power to issue a Watchlist Order restricting the right to travel of a person subject of its preliminary investigation, when the Court itself strictly regulates the travels of its own personnel. In A. M. No. 99-12-0-SC, as revised, the Court regulates the foreign travels of all court personnel by requiring them to secure a travel authority before leaving.9 Hence, no official or employee of the Supreme Court in particular and the Judiciary in general shall leave for any foreign country, whether on official business or official time or at one’s own expense without first obtaining permission from the Supreme Court.10

In fact, the Chief Justice recently reiterated this policy, in light of the repeated practice of court personnel of going to foreign countries without obtaining prior permission or belatedly filing their leaves upon their return.11 Personnel of the lower courts are even required to obtain clearance as to pending criminal and administrative cases filed against them, if any,12 and those who shall leave the country without travel authority issued by the Office of the Court Administrator shall be subject to disciplinary action.13 In several cases, the Court had held administratively liable and disciplined a Clerk of Court,14 Court Stenographer,15 Stenographic Reporter,16 Deputy Sheriff,17 and a Utility Worker,18 for travelling without the necessary court authority. That means that the pendency of even an administrative case is sufficient basis to deny the right to travel of court employees. This denial is effected by the withholding of the necessary endorsements by the Supreme Court’s administrative officers.

It appears that the Court, by its own administrative actions, has acknowledged the state’s limited power to abridge the right to travel. At the very least therefore, the State must be heard on the extent of this limited power to regulate the right to travel.

The majority cites the right to life as an underlying value that its Resolution is trying to protect. Petitioner Arroyo’s own documentary submissions however, belie the existence of any threat to such life. It also cites petitioner’s right to travel as a primordial constitutional right that must be so zealously protected. The majority is completely bereft, however, of any explanation on why it will protect those rights through a premature TRO in the face of untruthful statements in the Petitions herein and when its own practice in its backyard is one of curtailment of judicial employees’ own rights to travel. The only proposition that the minority has posed in today’s session is that the State first be heard before any decision to grant a TRO is reached. Surely, that is fully conformable with the requirements of the Rules of Court before a TRO can be issued.

Considering there is absolutely no medical emergency that is evidenced by any of the documents submitted by petitioner Arroyo, the allegations on the matter remain but mere allegations, and do not satisfy the evidentiary requirements for a TRO than can be issued ex-parte.

IN VIEW THEREOF, I vote to: (a) defer action on the prayer for a Temporary Restraining Order; (b) order the public respondents to Comment on the consolidated Petitions no later than 21 November 2011; and (c) conduct oral arguments on 22 November 2011 at 2:00 p.m. Immediately thereafter, the prayer for a temporary restraining order will be decided.

MARIA LOURDES P. A. SERENO

Associate Justice

Notes:

1 Dissenting were Justices Antonio T. Carpio, Jose C. Mendoza, Maria Lourdes P.A. Sereno, Bienvenido L. Reyes, Jr., and Estela M. Perlas-Bernabe.

2 Medical Certificate dated 01 October 2011, Annex “I” of the Petition.

3 Medical Certificate, Annex “F” of the Petition.

4 Letter dated 02 November 2011, Annex “O” of the Petition.

5 1st Endorsement dated 19 October 2011 of Atty. Artemio A. Adasa, Jr., Officer-in-Charge of the Office of the Secretary General of the House of Representatives, Annex “M-2” of the Petition.

6 DOJ Order dated 08 November 2011, attached as Annex “1” of the Very Urgent Manifestation and Motion dated 09 November 2011.

7 Judge Angeles v. Hon. Manuel Gaite, G.R. No. 176595, 23 March 2011.

8 Silverio v. CA, G.R. No. 94284, 8 April 1991, 195 SCRA 760.

9 “II. To REFER to the Chairmen of the Divisions for their appropriate action or resolution, for and in behalf of the Court En Banc, administrative matters relating to, or in connection with,: … (h) Foreign travels of Justices of the Court of Appeals and the Sandiganbayan, Judges of the Court of Tax Appeals and the Lower Courts, and the officials and personnel of such courts; and the recall or revocation of the travel authority granted, as well as any matter arising from such travel authority or its recall or revocation. …” (A. M. No 99-12-08-SC, as revised, effective 01 May 2003).

10 SC Memorandum Order No. 14-2000 dated 06 November 2000.

11 “NOW, THEREFORE, for consistency and uniformity and to protect the interest of the public service, the Court reiterates the policy of securing prior permission or authority from the Court for foreign travels of its officials and employees even at the travellers’ expense. Application for foreign travel shall be coursed through and evaluated and recommended for appropriate action by the Chiefs of Offices for Supreme Court Officials and employees. Applications for leave of absence for travel outside the country without the required permission or authority shall forthwith be denied.” (Memorandum Order No. 32-11 dated 20 September 2011)

12 OCA Circular No. 49-2003 dated 20 May 2003, signed by then Court Administrator Presbitero J. Velasco, Jr.

13 Id.

14 Ms. Larizza Paguio-Bacani, the Branch Clerk of Court II of the Municipal Trial Court of Meycauayan, Bulacan, was found guilty of dishonesty by falsifying her Daily Time Records and leaving the country without the requisite travel authority, and was ordered suspended from the service for one (1) year, without pay. (Concerned Employees of the Municipal Trial Court of Meycauayan, Bulacan v. Paguio-Bacani, A. M. No. P-06-2217 [Formerly, OCA IPI No. 06-2375-P] dated 30 July 2009, 594 SCRA 242)

15 Raquel S. Bautista, Stenographer I of the Municipal Trial Court of Guiguinto, Bulacan, decided to work overseas, but failed to secure the required clearances for travel abroad because the job offered to her in Dubai was urgently needed. (Reyes v. Bautista, A. M. No. P-04-1873, 13 January 2005, 448 SCRA 95)

16 Virginia G. Lim, a Stenographic Reporter of the Regional Trial Court of Makati City, Branch 135, was dismissed from the service, for among others, disregarding the judge’s orders to transcribe the longpending stenographic notes and choosing instead to go on leave, even when her application for leave has not been approved by the Office of the Court Administrator. (Ibay v. Lim, A. M. No. P-99-1309, 11 September 2000, 340 SCRA 107)

17 Victorio M. Acuña, a Deputy Sheriff of the Metropolitan Trial Court of San Juan, was also dismissed from the service because he had left for Saipan to be a contract worker there, without securing permission from the Court. (Recio v. Acuña, A. M. No. P-90-452 and P-92-667, dated 07 April 1993, 221 SCRA 70)

18 Rodrigo C. Calacal, a Utility Worker I of the Municipal Trial Court of Alfonso-Lista Aguinaldo, Ifugao, was reprimanded and warned for having left for Singapore from 15 May 2008 to 06 June 2008, without securing permission from the Office of the Court Administrator. (OAS-OCA v. Calacal, A. M. No. P-09-2670, 16 October 2009, 604 SCRA 1)

———————————————————————————————————————

Republic of the Philippines
Supreme Court
Manila

EN BANC

N O T I C E

Sirs/Mesdames:

Please take notice that the Court en banc issued a Resolution dated NOVEMBER 18, 2011, which reads as follows:

G.R. No. 199034 (Gloria Macapagal-Arroyo vs. Hon. Leila M. De Lima, in her capacity as Secretary of the Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of Immigration) and G.R. No. 199046 (Jose Miguel T. Arroyo vs. Hon. Leila M. de Lima, in her capacity as Secretary, Department of Justice, Ricardo V. Paras III, in his capacity as Chief State Counsel, Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner, Bureau of Immigration).- On November 15, 2011, the Court issued a temporary restraining order enjoining Secretary of Justice Leila M. De Lima, her agents, representatives, or persons acting in her place or stead, from enforcing or implementing DOJ Department Circular No. 41 and Watchlist Order Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated September 6, 2011 and 2011-573 dated October 27, 2011. To date, it appears that Secretary De Lima has effectively prevented petitioners Gloria Macapagal-Arroyo and Jose Miguel T. Arroyo from leaving the country.

Accordingly, on motion of the petitioners, the Court Resolved to require Secretary De Lima to (a) SHOW CAUSE, within a NONEXTENDIBLE period of ten (10) days from notice hereof, why she should not be disciplinarily dealt with or held in contempt for failure to comply with the temporary restraining order and (b) IMMEDIATELY COMPLY with the said temporary restraining order by allowing petitioners to leave the country.

The Court further Resolved to

(a) NOTE the Certification dated November 15, 2011 of Araceli C. Bayuga, SC Chief Judicial Staff Officer, stating that Gloria Macapagal-Arroyo and Jose Miguel T. Arroyo posted a cash Bond in the amount of Two Million Pesos (P2,000,000.00) under Official Receipt No. 0030227 dated November 15, 2011 in compliance with the resolution dated November 15, 2011;

(b) NOTE the Special Power of Attorney dated November 15, 2011 executed by Jose Miguel T. Arroyo, appointing Atty. Ferdinand Topacio as his legal representative in the Philippines to be his true and lawful attorney-in-fact, for his name, place and stead, to do and perform the following acts and things, to wit:

(i) To sign, verify and file a written statement;

(ii) To make and present to the court an application in connection with any proceedings in the suit;

(iii) To produce summons or receive documentary evidence;

(iv) To make and file compromise or a confession of judgment and to refer the case to arbitration;

(v) To deposit and withdraw any money for the purpose of any proceeding;

(vi) To obtain copies of documents and papers; and

(vii) Generally to do all other lawful acts necessary for the conduct of the said case

and he thereby agrees that all acts, deeds and things lawfully done by said attorney shall be construed as acts, deeds and things done by him and he undertakes to ratify and confirm all and whatsoever that his said attorney shall lawfully do or cause to be done for him by virtue of the power thereby given. He shall commit to the Court that he shall instruct his legal representative to amend par. (iii) above to state: “to receive summons or documentary evidence” and forthwith submit this compliance with the Court;

(c) DENY the Consolidated Urgent Motion for Reconsideration and/or to Lift Temporary Restraining Order dated November 16, 2011 filed by the Office of the Solicitor General (OSG) for public respondents Leila M. De Lima, in her capacity as Secretary of Justice, Ricardo A. David Jr., in his capacity as Commissioner of the Bureau of Immigration and Ricardo V. Paras III, in his capacity as Chief State Counsel;

(d) DENY the Urgent Motion to Move Oral Arguments Earlier dated November 16, 2011 filed by counsel for petitioner Gloria Macapagal-Arroyo;

(e) NOTE the Manifestation dated November 16, 2011 filed by counsel for petitioner Gloria Macapagal-Arroyo, informing the Court that in accordance with the conditions laid down in the Temporary Restraining Order dated November 15, 2011, said petitioner served upon the OSG and filed with this Court copies of her Compliance dated November 15, 2011 by registered mail, as evidenced by Registry Receipt Nos. 3749 and 3750 issued by the Robinson’s Ermita Postal Station;

(f) NOTE, subject to the further commitment under par. (b) above, the Compliance dated November 16, 2011 filed by counsel for petitioner in G.R. No. 199046, submitting the following documents in compliance with the resolution of November 15, 2011:

(i) Annex “A” – A copy of Official Receipt No. 0030227-SC-EP dated November 15, 2011, showing their payment of the required bond in the amount of Two Million Pesos;

(ii) Annex “B” – A copy of the Certification dated November 15, 2011 of the Fiscal Management and Budget Office, showing the payment of petitioners Jose Miguel T. Arroyo and Gloria Macapagal-Arroyo of the cash bond of Two Million Pesos; and

(iii) Annexex “C” and “C-1” – A copy of the appointment of Atty. Ferdinand S. Topacio as legal representative of petitioner Jose Miguel T. Arroyo and former President Gloria Macapagal-Arroyo;

(g) NOTE the Special Power of Attorney dated November 15, 2011 executed by Gloria Macapagal-Arroyo, appointing Atty. Ferdinand Topacio as her legal representative in compliance with the resolution of November 15, 2011. She shall commit to the Court that she shall instruct her legal representative to amend par. (iii) of par. (b) above to state: “to receive summons or documentary evidence” and forthwith submit this compliance with the Court;

(h) DENY the Motion for Leave of Court to Accept Memorandum as Amicus Curiae Submission dated November 12, 2011 filed by movant Fr. Ranhilio Callangan Aquino in G.R. No. 199034;

(i) NOTE WITHOUT ACTION the aforesaid Memorandum dated November 12, 2011 filed by Fr. Aquino;

(j) NOTE the Urgent Motion for Respondents to Cease and Desist from Preventing Petitioner GMA from Leaving the Country dated November 16, 2011 filed by counsel for petitioner Gloria Macapagal-Arroyo;

(k) NOTE the Manifestation and Motion (Re: Consolidated Urgent Motion for Reconsideration and/or to Lift Temporary Restraining Order dated November 16, 2011) dated November 17, 2011 filed by counsel for petitioner Gloria Macapagal-Arroyo;

(l) NOTE the Urgent Manifestation dated November 17, 2011 filed by counsel for petitioner Jose Miguel T. Arroyo, stating, among other things, that he is adopting the allegations in the Urgent Motion for Respondents to Cease and Desist from Preventing Petitioner GMA from Leaving the Country filed by petitioner Gloria Macapagal-Arroyo insofar as the said allegations are relevant to his petition and joining petitioner Gloria Macapagal-Arroyo in her prayer; and

(m) NOTE the Urgent Opposition dated November 18, 2011 filed by the OSG for the respondents.

Very truly yours,

ENRIQUETA E. VIDAL

Clerk of Court

———————————————————————————————————————-

EN BANC

G.R. No. 199034 –GLORIA MACAPAGAL-ARROYO v. HON. LEILA M. DE LIMA, in her capacity as SECRETARY OF THE DEPARTMENT OF JUSTICE, and RICARDO A. DAVID, JR., in his capacity as COMMISSIONER OF THE BUREAU OF IMMIGRATION

G.R. No. 199046 – JOSE MIGUEL T. ARROYO v. SEC. LEILA M. DE LIMA, in her capacity as SECRETARY, DEPARTMENT OF JUSTICE, RICARDO V. PARAS III, in his capacity as CHIEF STATE COUNSEL, and RICARDO A. DAVID, JR., in his capacity as COMMISSIONER, BUREAU OF IMMIGRATION

Promulgated:

November 18, 2011

x—————————————————————————————–x

DISSENTING OPINION

SERENO, J.:

At this morning’s special session called exclusively to deliberate on the pending incidents in the above-consolidated Petitions, the Court voted on several matters:

The first voting was on whether the Resolution dated 15 November 2011 granting the prayer for Temporary Restraining Order (TRO) by petitioners is to be reconsidered or not. The justices who voted on the 15 November 2011 Resolution maintained the same vote, 8-5.

The issue in the second voting, proposed by one of the members of the Court, was on whether the TRO issued by the Clerk of Court should be recalled for failure to comply with one of the conditions, Condition Number 2, imposed for the issuance of the TRO. Condition No. 2 reads:

(ii) The petitioners shall appoint a legal representative common to both of them who will receive subpoena, orders, and other legal processes on their behalf during their absence. The petitioners shall submit the name of the legal representative, also within five (5) days from notice hereof; (Emphasis supplied.)

On this matter, the voting was 7–61 finding that there was no compliance with the second condition of the TRO.

The third voting proceeded from the result of the second voting—whether, considering that the Court found that there was a failure to comply with a condition imposed by the earlier resolution, the Court should explicitly state that the TRO was thereby suspended in the meantime pending compliance with Condition Number 2. The Court, by a vote of 7-6, decided there was no need to explicitly state the legal effect on the TRO of the noncompliance by petitioners with Condition Number 2 of the earlier Resolution.

The fourth vote that was taken was on whether the Court would direct public respondents to show cause why they should not be held in contempt for failure to comply with the TRO and to comply therewith. The vote was unanimous.

The fifth vote was on whether public respondent DOJ Secretary should be ordered to also show cause why she should not be held in contempt for showing disrespect for the Court. The voting on this was 9-4.

The sixth voting was on whether to reset the schedule of the oral arguments. This was unanimously denied.

A. On the Motion for Reconsideration of the TRO

In the deliberation this morning, I had produced for the Court a list containing Watch List Orders (WLO) that had been revoked and lifted by the Department of Justice since 1991. It appears that all the Secretaries of Justice of former President Gloria Macapagal Arroyo ordered hundreds of Watch List Orders. By granting the TRO, this Court may effectively be contributing to the undermining of this country’s administrative institutions without hearing the Republic of the Philippines in oral arguments for it to be given the chance to defend the DOJ’s long institutional practice of issuing Watch List Orders.

Watch List Orders, Hold Departure Orders, Off-loading for being suspected as attempting to violate foreign employment laws, criminal laws such as anti-trafficking statutes, requiring travel authorities from all government employees before they are allowed to fly out are part and parcel of the running of our Republic called the Philippine State.

The majority is indicating, by its issuance of the TRO without hearing the side of government, that it is giving prima facie validation to petitioners’ proposition that only a strict interpretation of Article 3, Section 6 of the Bill of Rights is allowed. Meaning, the only justification for a valid restriction on the right to travel should be found only in one of the three exceptions provided therein—public safety, national safety or public health. On the other hand, this Court cannot ignore a basic constitutional precept: the presumption of validity of official actions. Especially when the practice of issuing watch list orders, has been practiced for decades by the Department of Justice, and many other analogous practices has been observed as well by many other governmental agencies, including this court, through analogous restrictive practices. This Court cannot turn to a blind eye what is involved in running a government. OFWs will have to cause to complain about the restrictions being imposed on them by many government agencies before they can work abroad. Off-loaded passengers would give legal nightmares to the Bureau of Immigration. It might, indeed, render impossible the effective administration of justice of our country’s laws. What this all means is that a full hearing must be conducted before this Court decides to grant a TRO to petitioners, none of whom, by their very own documents, are under any lifethreatening, emergency, medical situation.

While in the end we may ultimately strike down the issuance of Watch List Orders by the Department of Justice or uphold such orders and additionally provide standards before the power to restrict travel of persons under preliminary investigation can be exercised, what is at stake this very day is a fundamental question of whether we should presume that officials can perform the functions they have been performing for ages—in order that we maintain order in the running of a country. Therefore, with all due respect, it is completely wrong for this Court to bend over backwards to accommodate the request of petitioners for a TRO to be issued ex parte without hearing the side of the government. Government must be asked whether it is even physically possible to maintain the infrastructure of our system of laws if administrative offices were not given the limited power to regulate the right to travel. The ability of the Philippine Republic to keep its territorial integrity may even hinge on that question. To what extent is this Court contributing to the weakening of the Philippine State?

It has been argued that this government is not without recourse to reach petitioners should they fail to return to the country, and that the appointment of a substitute to accept processes and notices on her behalf effectively precludes a defense based on her lack of physical presence within the country’s jurisdiction. Should such eventuality happen, however, we just have to look at the sorry state of this country’s many futile attempts to employ the “long arm of the law” in reaching those who have been accused of multitudes of crimes during the long years of Martial Law to realize that this argument is illusory.

When out of the country’s jurisdiction, by being corporeally absent therefrom, public respondents’ legal remedies against petitioners will be subject to the jurisdiction and the pleasure of the various countries where they will flee. Out of the countries that had been mentioned by petitioners to be subject of her medical tour, only two (2) of the countries cited have extradition treaties with the Philippines. It still needs verification whether the extradition with Spain has already been rendered effective through concurrence to the same by the Senate.

The moment she flies out of Philippine air space, our country’s ability to enforce its laws will now be subject to the wishes of a foreign government. A PhP2 Million Peso bond is crumbs for one who, if proven, has actually obtained multiples more from the country’s coffers. Neither will the appointment of a substitute replace the effective justice that can be enforced only when a State has physical custody of a person who has been proven guilty of violation of the state laws. A conviction against her may lie as a formal judgment, but there may effectively be no service of sentence. That is of course, all premised on the theory that petitioners may ultimately be convicted for one of the crimes for which they are charged. That result can only add to the very long saga of our people’s desperate attempts to try to redeem its self-respect by showing to the world that contrary to the common observation of outsiders, impunity is not allowed to reign in this country. Should the Court contribute to such possible despair by not waiting for the oral argument on 22 November 2011 before issuing a TRO?

The principal physician of former President Gloria Macapagal-Arroyo, Dr. Juliet Gopez-Cervantes, and her surgeon, Dr. Mario Ver, have all certified to her continuing recovery and her positive prognosis, especially after 6 to 8 months. There has been no allegation in her pleadings that those certifications are false, nor that her doctors are incompetent. They should then be believed by this Court that there is no medical emergency warranting an immediate flight. What is waiting four (4) more days from today, when oral arguments are conducted, compared with the possibility that there is genuine, and not just publicly-imagined intention, on the part of the petitioners to evade legal processes. This Court can afford to wait until 22 November 2011, without prejudicing any of the constitutional rights of the petitioner, considering the potentials that loom in the distance and the fears that weigh on the minds of our people—that justice will be again be frustrated if the simple operation of bringing back an accused person from abroad, will prove to be impossible to effect, even by this Court.

In G.R. No. 197930, this Court denied Efraim Genuino’s prayer for a TRO against Watchlist Order No. 2011-422, issued under the authority of the same DOJ Circular No. 41 that is the subject of these petitions. Genuino also cited constitutional grounds, although he did not allege any medical emergency. The Court denied the prayer because it wanted to await the Comment of respondent DOJ Secretary. Considering that petitioners herein are not under any medical emergency, as certified by petitioner Gloria Arroyo’s own doctors, can this Court not just wait for the Comment and the oral arguments to be shortly conducted?

B. On the Show-Cause Order
directed to a public respondent
Leila de Lima For her public
display of disrespect towards this
Court.

This Court need not aggravate the present situation. The Court, motu proprio, even without the motion from petitioner’s herein, is ordering public respondent De Lima to show cause why she should not be held for indirect contempt by showing disrespect to the Court. The majority has explained that this order is anyway, to just require an explanation from her, and is thus not out of the ordinary. I believe however, that to order her now to show cause for “showing disrespect to the Court” signals a message to the public that it is most unfortunate. It must be remembered that the failure to comply with the lawful order of this Court is already disrespect of this Court. If her her explanation regarding her failure to comply with the resolution of 15 November 2011 is already satisfactory, then the second item to explain is already rendered moot. On the other hand, if the explanation proves unsatisfactory, it already implies disrespect for this Court’s orders. For she has said nothing that can be deemed disrespectful, independent of her statement that she would not comply with the 15 November 2011 Resolution of this Court. But at this very sensitive juncture, when people’s passions are highly inflamed, for the Court to show sensitivity to what it presumably perceives as disrespect unnecessarily feeds those passions. What is called for right now is utmost restraint. The Court should show that it has the ability to tolerate, to a limited degree, expressions of passion and deep beliefs in some fundamental ends or values, considering what is in the public thought right now. It is sad that such a show cause order might possibly only bring harm with no foreseeable good at all. Thus, I voted against the inclusion of such phrase in the Show-Cause Order.

C. Effectivity of the TRO

The majority, by a 7-6 voting, denied the minority’s proposition that a resolution be issued including a phrase that the TRO is suspended pending compliance with the second condition of the 15 November 2011 Resolution. The majority argued that such a clarification is unnecessary, because it is clear that the TRO is conditional, and cannot be made use of until compliance has been done. It was therefore the sense of the majority that, as an offshoot of the winning vote that there was failure by petitioners to comply with Condition Number 2, the TRO is implicitly deemed suspended until there is compliance with such condition. Everyone believed that it would be clear to all that a conditional TRO is what it is, conditional.

Below is the relevant excerpt from the Special Power of Attorney dated 15 November 2011, the failed compliance of petitioners with Condition Number 2 in our Resolution dated 15 November 2011:

That I, GLORIA MACAPAGAL ARROYO, of legal age, married, Filipino with residence at 14 Badjao Street, Pansol, Quezon City, do hereby name, constitute and appoint ATTY. FERDINAND TOPACIO, likewise of legal age, Filipino, with office address at Ground floor, Skyway Twin Towers, H. Javier St., Ortigas Center, Pasig, Metro Manila, as my legal representative in the Philippines and to be my true and lawful attorney-in-fact, for my name, place and stead, to do and perform the following acts and things, to wit:

1. To sign, verify, and file a written statement;

2. To make and present to the court an application in connection with any proceedings in the suit;

3. To produce summons or receive documentary evidence;

4. To make and file compromise or a confession of judgment and to refer the case to arbitration;

5. To deposit and withdraw any money for the purpose of any proceeding;

6. To obtain copies of documents and papers; and

7. Generally to do all other lawful acts necessary for the conduct of the said case. (Emphasis supplied.)

While this opinion was being written, Court Administrator and Acting Chief of the Public Information Office (PIO) Atty. Midas Marquez informed the press that the Temporary Restraining Order (TRO) was effective, i.e., “in full force and effect.” Contrary to this interpretation, as stated, it was the understanding of a majority that the TRO is “suspended pending compliance” with our earlier Resolution. The operational ineffectivity of the TRO is implied—for it is a basic principle that the failure of petitioners to comply with one of the conditions in the Resolution dated 15 November 2011 is a jurisdictional defect that suspends, at the least, the effectivity of the TRO. Therefore, the TRO, until faithful compliance with the terms thereof, is legally ineffective. It was a human mistake, understandable on the part of the Clerk of Court, considering the way the TRO was rushed, to have issued the same despite non-compliance by petitioners with one of the strict conditions imposed by the Court. Nevertheless, good faith and all, the legal effect of such non-compliance is the same—petitioners cannot make use thereof for failure to comply faithfully with a condition imposed by this Court for its issuance.

The Court Administrator cum Acting Chief of the PIO is hereby advised to be careful not to go beyond his role in such offices, and that he has no authority to interpret any of our judicial issuances, including the present Resolution, a function he never had from the beginning.

Furthermore, it is hereby clarified that it is mandatory for the Clerk of Court to ensure that there is faithful compliance with all the conditions imposed in our 15 November 2011 resolution, including our second condition, before issuing any certification that the compliance with the TRO has been made, and only then can the TRO become effective.

MARIA LOURDES P. A. SERENO

Associate Justice

Note:

1 The seven justices who voted for the majority includes Justices Antonio T. Carpio, Roberto A. Abad, Martin S. Villarama, Jr., Jose C. Mendoza, Maria Lourdes P. A. Sereno, Bienvenido L. Reyes, and Estela M. Perlas Bernabe.