Sunday, November 20, 2011

How Midas Lost His Touch on the Arroyo TRO Issue

Last Friday, November 18, 2011, the Supreme Court en banc met to deliberate on the pending issues 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).

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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