DISSENTING OPINION
SERENO,
J.:
I.
THE FACTS
[Late last
Tuesday, November 15, 2011, the Supreme issued an “immediately executory”
Temporary Restraining Order (TRO) enjoining the implementation of DOJ
Department Circular No. 41 and Watchlist Order and thereby allowing the petitioners Arroyo spouses to leave the Philippines after complying with
the conditions in the Resolution. The respondent Secretary of Justice Leila De
Lime however prevented the Arroyos from leaving.
The government,
through the Office of the Solicitor General, immediately filed a “Consolidated Urgent Motion
for Reconsideration and/or to Lift Temporary Restraining Order”. Petitioner
Gloria Macapagal Arroyo also filed an “Urgent Motion for Respondents to
Cease and Desist from Preventing Petitioner GMA from Leaving the Country.” She also
moved to cite the Respondent Secretary of Justice in contempt for failure to
comply with the TRO.
On November
18, 2011, the Court conducted a special en banc session to tackle the pending
incidents of the consolidated cases.]
II.
THE ISSUES
Among the more important issues resolved by
the Court during the special en banc session were as follows:
1.
Should the Resolution granting the prayer for
a TRO be reconsidered?
2.
Was there compliance with the 2nd
condition of the TRO? If there is none, should the TRO be suspended in the
meantime?
III.
THE RULING
1.
[The
Justices maintained their 8-5
vote on the issuance of the TRO. The majority thus “require[d]” Secretary De
Lima to “IMMEDIATELY COMPLY with the said temporary restraining order by
allowing petitioners to leave the country.”]
YES, the Resolution granting the petitioners’
prayer for a TRO should be reconsidered.
[T]his 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. xxx. 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 life-threatening, 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. xxx.
xxx xxx xxx
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.
Xxx. 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?”
2.
[The Court
voted 7–6[1]
that there was no compliance with the 2nd condition of the TRO. But it
nonetheless voted by the same 7-6 margin that there
was no need to explicitly state the legal effect on the TRO of the
noncompliance by petitioners with the 2nd condition.
The November
18, 2011 Resolution instead noted the SPA executed by Gloria Macapagal-Arroyo,
appointing Atty. Ferdinand Topacio as her legal, and merely stated that “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;”]
NO, there
was no compliance with the 2nd condition of the TRO; hence, YES, the
TRO should be suspended in the meantime.
The
majority, by a 7-6 voting [sic],
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.
[1]
The seven justices who voted for the majority include 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.
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