Late yesterday, the Supreme COURT En Banc issued a Resolution granting EX PARTE the prayer for Temporary Restraining Order of the petitioners in the consolidated cases of Gloria Macapagal-Arroyo vs. Hon. Leila M. De Lima, G.R. No. 199034 and Jose Miguel T. Arroyo vs. Sec. Leila M. De Lima, G.R. No. 199046.
The majority of eight, composed of Chief Justice Renato Corona and Associate Justices Presbitero Velasco Jr., Arturo Brion, Diosdado Peralta, Lucas Bersamin, Roberto Abad, Martin Villarama and Jose Perez, resolved to ISSUE a TEMPORARY RESTRAINING ORDER enjoining the respondents from enforcing or implementing DOJ Department Circular No. 41 [The Consolidated Rules and Regulations Governing the Issuances and Implementing of Hold Departure Orders, Watchlist Orders, and Allow Departure Orders] and Watchlist Order Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated September 6, 2011 and 2011-573 dated October 27, 2011.
The TRO issued, which was “immediately executory,” was made 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 travelling [sic], the petitioners shall inform said embassy or consulate by personal appearance or by phone of their whereabouts at all times.
In resolving to grant the TRO ex parte, the majority only stated that in so-doing, it is being “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 minority of five is composed of Senior Associate
Justice Antonio Carpio and Justices
Maria Lourdes Sereno, Bienvenido Reyes, Estela Perlas-Bernabe and Jose Mendoza.
In
his dissenting opinion, Justice Carpio voted to defer action on
petitioners’ prayer for a TRO until after the Government files its Comment and
after oral arguments are heard on the matter. He argued that “[w]hile 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.” Justice Carpio noted further that
there are also
restrictions on the right to travel imposed on government
officials and employees.
In her dissenting opinion, Justice Sereno also voted to DEFER action on petitioners’ prayer for a TRO until after the scheduled oral arguments. First, she noted that GMA has been shown to be prone to submitting to the Court documents belying her own allegations; thus, the Court must pause, and at the very least, listen to the side of the Government. That is why, she said, a two-sided hearing before the Court, and not a mere ex-parte proceeding should have occurred before the majority granted the TRO. Second, Justice Sereno argued that GMA has an explaining to do why she is now claiming that her constitutional right is being violated by her very own administrative issuance. It was the Arroyo administration, through then-Justice Secretary Alberto Agra, which issued DOJ Circular No. 41. Question on estoppel arises because the acts which petitioner claims to have violated her constitutional rights are the acts of her alter ego, and consequently, her own. Finally, Justice Sereno argued that the Court must face the risk of flight frontally, and ensure that it is not unduly favoring an individual to the prejudice of the State. TO do this, the Court should have, at the minimum, allowed the government to be heard before granting the TRO. She went on to state the following:
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.
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.
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