In a press conference called shortly after the Court en banc session, the Supreme Court
spokesperson Midas Marquez announced that the High
Tribunal has rejected the executive’s appeal to reconsider the issuance of the
TRO. He also declared that the TRO previously issued by the Court “remained in full force and effect.”
Even before the Court Resolution and the dissenting opinion of Justice Sereno were made available in the Supreme Court website, Vera Files already
noted that “[c]ontrary to the announcement of Supreme Court Spokesman Midas Marquez
that the High Court voted 8-5 reiterating the temporary restraining order on
the Watch List Order of Justice Secretary Leila de Lima issued on former
President Gloria Arroyo and her husband, a highly reliable source said the
tribunal, voting 7-6, actually declared its Nov. 15 TRO inoperative following
the failure of the Arroyo camp to comply with all the conditions set by the
court.”
Indeed, there was some confusion on how exactly did the Court resolve the issues pending before it. The Resolution, made available in the Supreme Court website only after the press conference, merely
provides in part as follows:
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
xxx xxx xxx
(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;
xxx xxx xxx
(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;
xxx xxx xxx. [Emphasis supplied]
The
clarification on what happened behind the scenes, i.e., the issues the Court tackled and the result of its voting,
was indicated in the Dissenting Opinion of Justice Maria Lourdes Sereno. The
lady Justice wrote:
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 7–6[1]
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.
xxx xxx xxx. [Emphasis
supplied.]
On the
matter of the effectivity of the TRO, Justice
Sereno elaborated on the Court’s 7-6 vote:
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.)
Justice Sereno then discussed why Supreme Court spokesperson Midas Marquez erred in announcing that the TRO remained
“in full force and effect:
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.
The lady
Justice thereafter “advised” Marquez “to
be careful not to go beyond his role”, and that “he has no authority to
interpret any of [the Court’s] judicial issuances, including the present
Resolution, a function he never has from the beginning.”
Majority resolution does not categorically
emphasize the need to comply with the conditions of the TRO
As
quoted above, the Court majority resolved last Friday, November 18, 2011, to “require Secretary De Lima to . . .
IMMEDIATELY COMPLY with the said temporary restraining order by allowing
petitioners to leave the country.” The actual wording of the Resolution
does not however clarify the glaring anomaly in this controversy: While petitioner
Macapagal-Arroyo failed to comply with one of the three conditions imposed by
the Court until last Friday, November 18, 2011, the Clerk of Court in fact already
issued (rather hastily) the TRO late last Tuesday, November 15, 2011.
It
is apparent that 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” has much to
commend, if only to make it crystal clear to everyone that the TRO is
conditional in nature, and that despite the actual issuance of the TRO, petitioner
Macapagal-Arroyo has not yet complied with one of the Court’s conditions.
In their
Resolution last Friday, the majority may have been legally correct in arguing that “a clarification [that the TRO is
suspended pending compliance of the second condition] is unnecessary, because
it is clear that the TRO is conditional, and cannot be made use of until compliance
has been done.” The sense, however,
that “a conditional TRO is what it is,
conditional” cannot be made out from the tenor of last Friday’s Resolution.
It is a good thing Justice Sereno wrote
the dissenting opinion extensively quoted above. This provides us a view of the
Court’s understanding of the matter as they deliberated and voted last Friday.
Epilogue
We can only
hope that everyone intimately involved in this case, and the general public
interested in the administration of justice in this controversy, understand what
is merely implicit in this development. More importantly, after the hasty
issuance of the TRO last Tuesday, we hope the Clerk of Court of the High
Tribunal will be more circumspect this time. As Justice Sereno said in her closing paragraph, “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.”
[Interestingly, while the
Court resolved by an 8-5 vote to issue a conditional TRO last Tuesday, it also
provided in the same Resolution that “[t]he temporary restraining order shall
be immediately executory.” This might be the source of the confusion since
after the Arroyos paid the P2 million bond and executed their SPA in favor of
Atty. Ferdinand Topacio, their camp assumed that they have already complied
with the conditions and can immediately leave the Philippines. But with the
subsequent discovery of a defect in their SPA – where they authorized Atty.
Topacio to “produce summons” on their behalf – the
“immediately executory” nature of the TRO may be said to have not yet arisen.
This goes without saying, at least according to the majority in their
resolution last Friday. In any case, the defect (either an unintentional typographical error
or a deliberate ruse intended to be eventually cited that Atty. Topacio is not authorized after all to receive summons and effectively delay the proceedings against the Arroyos) can always be corrected immediately and the TRO can then be deemed in full force and effect.
Be that as it may, the issue on the eventual execution
of the TRO to enable petitioner Gloria Macapagal-Arroyo to travel abroad may
have been rendered moot by the filing of the non-bailable electoral fraud case against her and
her subsequent arrest late last Friday. This development may have also effectively
prevented her from raising her constitutional right to travel on the merits of
the main case now pending before the Court.]
[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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