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. 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
Promulgated:
December 13, 2011
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DISSENTING OPINION
SERENO, J.:
Despite serious efforts from my end to advise an officer of the Supreme Court that no action of the Court should be interpreted, such behavior has continued. This opinion is thus rendered in part to remedy the present deficit in truth.
To recall, my Dissenting Opinion of 18 November 2011 consisted of two parts: (1) a narration of the voting that took place in the morning; and (2) the reason why my Dissent to the Decision of the majority to grant the temporary restraining order (TRO) in favor of petitioners continues. My narration was a first-hand account rendered by a member of the Court who took part in the deliberations; it was not a relayed message and neither was it hearsay. To this day, none of my colleagues has called my attention to any inaccuracy in my 18 November 2011 account, despite the En Banc having physically met on the 22nd, 24th, and 29th of November; and despite all the available means of electronic communication with which any of them could call me.
What Took Place on the 18th, 22nd, 23rd, 24th, and 29th of November 2011
What took place in the En Banc morning sessions of the 18th and 22nd of November 2011, and what steps were taken thereafter by Chief Justice Renato C. Corona, Senior Associate Justice Antonio T. Carpio, and Justice Presbitero J. Velasco, Jr. have been put on record by Justice Antonio T. Carpio in a letter to Chief Justice Renato C. Corona and circulated to all the members of the Court on the morning of 24 November 2011.
The letter reads:
24 November 2011
The CHIEF JUSTICE
Supreme Court
May I suggest that the issuance of the attached Resolution dated 22 November 2011, which is supposed to clarify the Resolution dated 18 November 2011, be held in abeyance until the En Banc has a chance to go over the same. Instead of clarifying the Resolution dated 18 November 2011, the attached Resolution compounds the error in the Resolution dated 18 November 2011. (Underlining supplied)
You will recall that during the En Banc meeting last 18 November 2011,1 the En Banc, after a long discussion, voted on the following issues:
1. That petitioners did not comply with condition (ii) for the issuance of the TRO (voting was 7-6 with Carpio, Abad, Villarama, Mendoza, Sereno, Reyes and Bernabe as the majority);
2. That there is no need to state in the Resolution that the TRO is suspended until petitioners comply with condition (ii), that is, petitioners will simply be directed to comply with condition (ii) for the issuance of the TRO (voting was 7-6, with Corona, Velasco, Brion, Peralta, Bersamin, Abad, and Perez as the majority). This vote was taken after Justice Abad stated that since condition (ii) for the issuance of the TRO was not complied with, there was no need to state that the TRO is suspended since it is “common sense” that the TRO cannot take effect unless all the conditions are satisfied. I had earlier proposed that the Court recall the TRO for non-compliance of condition (ii) but Justice Abad’s response was that it need not be recalled because its effectivity is deemed suspended pending compliance with condition (ii). After all, Justice Abad said, it will take only 10 minutes for the amended Special Power of Attorney to be submitted by Atty. Topacio.
However, the Resolution dated 18 November 2011 did not reflect at all item 1. The Resolution merely stated that petitioners are directed to comply with condition (ii) for the issuance of the TRO, which correctly reflects item 2. Thus, in the En Banc meeting last 22 November 2011, I suggested that the En Banc clarify the Resolution dated 15 November 2011 to reflect item 1 above. The En Banc agreed, and no one objected. Justice Velasco was designated to draft the clarificatory Resolution.
Yesterday, 23 November 2011, Justice Velasco submitted his draft of the first three sentences to the first paragraph of the attached Resolution, which sentences reflect correctly item 1 above, but not item 2. Through my Chief of Staff, I called the attention of the Clerk of Court and sent her a correction to Justice Velasco’s draft to reflect correctly item 2. I also called up Justice Velasco to inform him of my correction. Justice Velasco and I agreed that this draft correctly reflected item 1. On item 2, Justice Velasco explained that he did not get the nuance that there was no need to state in the Resolution that the TRO is suspended, as his draft in fact states the opposite – that the TRO is not suspended pending compliance with condition (ii), a statement not found in the Resolution dated 18 November 2011
However, the clarificatory Resolution that came out late yesterday afternoon, and which the Clerk of Court was instructed to promulgate is the attached clarificatory Resolution dated 22 November 2011, which states:
1. There was substantial compliance with condition (ii) for the issuance of the TRO;
2. The TRO was not suspended and continued to be in force pending full compliance with the condition (ii).
The attached clarificatory Resolution compounds the error of the Resolution dated 18 November 2011. In fact, the attached clarificatory Resolution states the opposite of what was approved by the En Banc in its meeting of 15 November 2011, and what was agreed in the En Banc meeting of 22 November 2011.
I am informed by the Clerk of Court, through my Chief of Staff, that the attached clarificatory Resolution is your version of the clarification. For ready reference, I am attaching Justice Velasco’s version of the clarification, as well as my own version.
In view of the foregoing, I suggest that the release of the attached Resolution 22 November 2011 be held in abeyance until the same is taken up by the En Banc today before the 2 p. m. oral argument
Very truly yours,
Antonio T. Carpio (sgd.)
Copy Furnished:
All Associate Justices
Clerk of Court
The letter of Justice Carpio was taken up on the morning of 29 November 2011. While one of the justices, as described in Justice Carpio’s letter, had argued on 18 November 2011 that the suspensive effect of non-compliance with condition (ii) no longer needed to be stated, as it was “common sense,” this time he voted unequivocably that despite non-compliance with condition (ii), the TRO was nevertheless not suspended. The Resolution that was issued pursuant to the 29 November 2011 voting reads in relevant part as follows:
Please take notice that the Court en banc issued a Resolution dated NOVEMBER 22, 2011, which reads as follows:
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) and G.R. No. 199046 (Jose Miguel T. Arroyo v. 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 18, 2011, the Court, by a vote of 7-6, found that there was no sufficient compliance with the second condition of the Temporary Restraining Order issued on November 15, 2011. However, by a vote of 7-6, the Court ruled that the TRO was not suspended pending compliance with the second condition. Thus, the Court resolved to CLARIFY that the TRO was not suspended even with the finding that there was no full compliance with the conditions of the TRO.
Contrary to statements made by the Acting Chief of the Public Information Office (PIO) Atty. Jose Midas P. Marquez, there was no 9-4 voting that upheld the effectivity of the TRO despite non-compliance with condition (ii). The above Resolution categorically identified the voting ratio as 7-6 in favor of a declaration of non-compliance, and another 7-6 in favor of non-suspension of the TRO despite non-compliance with a condition.
The voting taken on 29 November 2011 was of the same composition as that of the 18 November 2011 voting. Justices Carpio, Roberto A. Abad, Martin S. Villarama, Jr., Jose C. Mendoza, Maria Lourdes P. A. Sereno, Bienvenido L. Reyes and Estela M. Perlas-Bernabe as the first majority group maintained that there was no compliance with condition (ii). Then the majority grouping shifted when Justice Abad − as he did on 18 November − joined Chief Justice Corona and Justices Velasco, Arturo D. Brion, Diosdado M. Peralta, Lucas P. Bersamin, and Jose P. Perez to comprise the majority. This time, however, the majority categorically voted to declare the non-suspension of the TRO despite non-compliance with condition (ii). There was therefore, in every sense of the word, a revision of the second majority group’s vote, which now has the effect of reversing their earlier ruling. This is not strange, as any clarification of an earlier vote can result in a very substantive revision of that earlier vote. I requested two (2) days to write my Dissent.
Justice Teresita J. Leonardo-De Castro who was on official business and Justice Mariano C. del Castillo who was on leave on November 15 and 18 were both present on 29 November 2011. As expected, they did not participate in the voting and discussion on the issues of compliance and the effect of non-compliance with the conditions of the November 15 Resolution because they were not present in the said two previous meetings.
It must be understood that while I was writing the 18 November 2011 Dissenting Opinion, the unsigned Resolution of the same date was also being written by the ponente designated by the Chief Justice. When the Resolution came out, it was not, with all due respect, a fully accurate reflection of what took place. This incident demonstrates an existing gap between the actual discussion and the voting results that take place in an En Banc session and their reflection in written form via an unsigned resolution. Unsigned resolutions, it must be emphasized, are usually not circulated to the justices for their approval before they are promulgated, as happened with the 18 November 2011 Resolution.
It was from my actual participation in the 15 November 2011 Session that I was calling the attention of the Acting Chief of the PIO in my 18 November 2011 Dissenting Opinion to desist from interpreting our actions. That Dissent, the letter of Justice Carpio, and the need for a re-voting by the En Banc on 29 November 2011 should have stopped the PIO from further wrongly interpreting our actions. Atty. Marquez was propounding on the legal status of the TRO without the benefit of any written document from this Court.
The Order Not To Immediately Promulgate My 2 December 2011 Dissenting Opinion
After the voting on 29 November 2011, I informed my colleagues that I would write a Dissenting Opinion on the clarificatory Resolution. They asked me when I could submit my Dissent, and I requested two (2) days to finish it even though the Internal Rules of the Supreme Court give me at least a week to write a Dissenting Opinion (Rule 13, Section 7, A.M. No. 10-4-20 SC). During the oral argument in the afternoon of the same day, the Court decided to continue the proceedings in the afternoon of 01 December 2011, on which date I fell ill. Thus, I was unable to attend the oral argument and to submit my Opinion.
On the following day, 02 December 2011 at 3 p. m., my office called the Office of the Clerk of Court to advise it that a Dissenting Opinion from me would shortly be submitted for promulgation. Under the same Internal Rules, the Clerk of Court has the ministerial duty to promulgate such opinion. At 4 p. m., a member of my staff personally delivered to the Office of the Clerk of Court the hard copy of my signed Dissenting Opinion in official Gilbert bond paper – the kind used in the Court for final signed copies of Decisions, Opinions or Resolutions coming from the justices – together with two diskette copies thereof. Atty. Enriqueta Vidal, the Clerk of Court, who was on the telephone at that time, directed my staff to one of her subordinates. The said subordinate from the Office of the Clerk of Court duly received my opinion and the two diskettes. Immediately thereafter, that same person together with my staff went to the PIO to hand both diskettes containing an electronic copy of my Opinion for uploading in the Supreme Court website. The person in charge of uploading decisions and opinions received the diskettes and promised my staff that it would be uploaded in ten minutes.
When I asked my staff to check if my Dissenting Opinion had indeed been uploaded, they found to my dismay that it had not been uploaded despite the lapse of time. My staff called the PIO to inquire about the status of the uploading. The person in charge, however, had already left the office and none of the other employees were authorized to upload the opinion. When that authorized personnel was reached through mobile phone, he told my staff that he was not able to upload the Opinion in the website because the soft copies had been earlier retrieved from him by the same person from the Office of the Clerk of Court who received it.
Thereafter, my staff succeeded in contacting the Clerk of Court, who by then had left the office as well. When asked for an explanation for the non-promulgation of the Opinion, she reasoned that there was no process server who could have served the Opinion on the parties anyway since it was already late Friday afternoon.
On the following Monday or on 5 December 2011, two members of my staff had a serious talk with Atty. Vidal. She admitted that she could not tell my staff the real reason for the non-promulgation of my opinion – that actually, Justice Velasco gave her the instruction, as confirmed by the Chief Justice, that my opinion should not be promulgated, but rather, that it should be taken up in the agenda of the 6 December 2011 En Banc session. She also disclosed that she would be issuing a memorandum to this effect. When they asked about the two diskettes of the Opinion, the Clerk of Court summoned another staff member from her office, who explained that one of the diskettes was with their Office and the other copy was given to the Court Administrator, Atty. Jose Midas P. Marquez.
True enough, Atty. Vidal circulated to the members of the Court a letter that reads:
Memorandum for:
The Hon. Chief Justice
The Hon. Associate Justices
Re: 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. 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
Per instruction of Associate Justice Presbitero J. Velasco, Jr., the dissenting opinion of Associate Justice Maria Lourdes P.A. Sereno in the Resolution dated November 22, 2011 in the above-entitled cases shall be taken up in the session of the En Banc on Tuesday, December 6, 2011.
December 5, 2011
Enriqueta E. Vidal (sgd.)
Clerk of Court
The following day, I formalized my request that I be apprised of the legal basis for the decision of the Chief Justice to affirm the instruction of Justice Velasco to the Clerk of Court to withhold the promulgation of my Dissenting Opinion. My letter, which I circulated to the other justices and the Clerk of Court, reads as follows:
6 December 2011
HON. RENATO C. CORONA
The Chief Justice
Re: Dissenting Opinion of Justice Maria Lourdes P. A. Sereno to the Resolution dated 29 November 2011 in G.R. Nos. 199034 and 199046
Dear Mister Chief Justice:
My office was informed by Atty. Enriqueta E. Vidal, Clerk of Court, that you had confirmed the instruction given to her by Justice Presbitero J. Velasco, Jr. that the Dissenting Opinion as described above that I submitted last December 2, 2011, should not be promulgated. I attach my signed Dissenting Opinion for your reference.
Inasmuch as your instruction constitutes a prevention of my exercise of my constitutional duty as a member of the Court, please apprise me of the legal basis for such instruction.
Thank you very much.
Sincerely,
MARIA LOURDES P. A. SERENO (Sgd.)
cc: Associate Justices
Clerk of Court
I know of no precedent in the entire history of the Supreme Court when the promulgation of a Dissenting Opinion was withheld at the instruction of a fellow Associate Justice or even of a Chief Justice. The language of the Constitution in Article VIII, Section 13, is clear and I quote in relevant part: “Any Member [of the Supreme Court] who took no part, or dissented, or abstained from a decision or resolution, must state the reason therefor.” It is a constitutional right of any Member of the Court to issue his or her Dissenting Opinion; and in cases wherein the issue of compliance with a TRO and the efficacy of that TRO, is being subjected to intense national scrutiny, as in this case, such issuance is also a constitutional duty.
Further, I know of no precedent in the entire history of the Supreme Court where the promulgation of a signed Dissenting Opinion has been withheld because it would be the subject of discussion in a next Court session.
In the 06 December 2011 session, I was asked by a colleague why I have been writing my Dissenting Opinions the way I do; and in the case of my unpromulgated but signed 2 December 2011 Dissenting Opinion, why I broadcast to the whole world the Court’s internal discussions. He shared his view that it created a “chilling effect” on the freedom of his opinions. I said I was not introducing anything new, and that since 1958 to as late as 2009, this Court has had Decisions and Opinions disclosing the process and the content of its internal discussions. Those disclosures were so detailed as to state who opined what, and who changed their vote at the last minute from one position to another. In all those instances, the Court never took action against the disclosure itself by withholding promulgation, or against its author by disciplining the same.
One justice undertook to counter my Dissenting Opinion. Justice Carpio indicated that he would in turn answer that proposed “contra-Dissent.” That contra-Dissent, was to be premised on the theory that the conditions imposed on 15 November 2011 were all resolutory and not suspensive.2 The Court agreed to give all the Members until 13 December 2011 within which to write their Concurring or Dissenting Opinions. I continued to insist on my constitutional right to have my Dissent immediately promulgated and that any of them could just easily follow with his Opinion to counter mine anyway. I received no positive response.
Justice Carpio submitted his own Dissenting Opinion six (6) days later, on 12 December 2011.
The Continuing Non-Promulgation of My Dissenting Opinion
On 13 December 2011, my Dissenting Opinion was again subject to discussion in the En Banc Session. The justice who undertook to write a counter-Dissent withdrew that proposed initiative but Justice Carpio’s Dissenting Opinion to answer that counter-Dissent is not withdrawn. One of the justices who was not present in the 06 December 2011 Session raised my supposed violation of the confidentiality rule in Rule 10, Section 2 of the Internal Rules of the Supreme Court, which reads:
Confidentiality of Court Sessions – Court sessions are executive in character, with only the Members of the Court present. Court deliberations are confidential and shall not be disclosed to outside parties, except as may be provided herein or as authorized by the Court.
The Chief Justice or the Division Chairperson shall record the action or actions taken in each case for transmittal to the Clerk of Court or Division Clerk of Court after each session. The notes of the Chief Justice and the Division Chairperson, which the Clerk of Court and the Division Clerks of Court must treat with strict confidentiality, shall be the bases of the minutes of the sessions.
This justice informed the Court that he would be writing an Opinion to counter my Dissenting Opinion. Two other members also intimated that they would write contrary Opinions to mine.
In all likelihood, I will not have a chance to see the drafts of the Opinions of my three fellow justices who will be writing Opinions to counter this Dissent. So the following paragraphs have been crafted anticipating the arguments they expounded on in our 13 December 2011 session. Other than one of them opining that I am breaching the rule on confidentiality and another claiming that my Dissent has a chilling effect on the Court, I have no idea what the new objections to my Dissent would be.
Rule 10, Section 2 cannot be interpreted to diminish the constitutional duties and rights of the Members of the Supreme Court.
Rule 1, Section 2 of the same Rules emphasize the hierarchy of the sources of law to which the Internal Rules of the Supreme Court themselves are subject to. It reads:
Interpretation – The Internal Rules of the Supreme Court shall be interpreted in accordance with the mandates of the Supreme Court under the Constitution, applicable laws, and the Rules of Court to ensure a just, fair and efficient administration of justice. Nothing in these Rules shall be interpreted to preclude or limit the exercise of the power and authority of the Court as provided in the Constitution, the applicable laws, and the Rules of Court.
This Dissenting Opinion is written in the spirit of discharging the constitutional duty of a dissenting Member of the Court to explain herself under Article VIII, Section 13 of the Constitution.3 It is only by our Decisions and Opinions that we, as Members of this Court, are able to account for our actions. Any attempt to muzzle the opinion of a dissenting Justice for the sole reason that the majority will find such writing inconvenient is unconstitutional. This is especially true when the account of the voting and the reasons for the votes are being contested, as the 18 November 2011 vote on the TRO was.
I do not believe that a disclosure of the internal deliberations of the Court is warranted in each and every case. My 18 November 2011 Dissenting Opinion, as well as my unpromulgated 2 December 2011 Dissenting Opinion which has now been superseded by this Dissenting Opinion − finalized and signed this 19th of December 2011 − made the disclosures only because (1) the promulgated Resolution of 18 November 2011 did not reflect that day’s voting and the reasons for that vote; and (2) the Acting Chief of the PIO continues to misinform the public.
When the accuracy and the content of the deliberations of the Court’s confidential session are being disputed, it is the constitutional duty of the Members of the Court, especially the minority, to speak up and put on record what actually took place. This duty becomes especially necessary when an officer of the judiciary, who has been clothed with apparent authority by the Chief Justice, continues to misinform the public, and such behavior is not being corrected. As is highly obvious from the organizational constraints within the Supreme Court, the minority Members of the Court have a limited opportunity to correct the misinforming officer. The minority will also not have a fair chance to correct the resolution, in this case drafted by a ponente designated by the Chief Justice, until after its promulgation. To keep quiet in such times and not make use of opportunities available to the minority to present the truth through Dissenting Opinions would be a disservice to the country.
The majority decided that all the justices would be given until 5 p.m. of 19 December 2011 to submit their individual opinions. I continued to assert that my Dissent should nevertheless be immediately promulgated, because Atty. Marquez has been continuing his misstatements on the TRO unabated, effectively making it appear that some of my statements in my 18 November 2011 Dissent were untrue. This latter assertion was unheeded.
This Dissenting Opinion has created a very strange situation. A simple Dissent to a Resolution is not being allowed immediate promulgation while the Resolution it is dissenting from had been promulgated 20 days ago, specifically on 29 November 2011. Instead, the Dissent has become the subject of a debate in two En Banc sessions. The treatment of my Dissent raises fundamental questions on the right of the Members of this Court, in a case of intense national interest, to explain their votes.
Continuing Misinformation on the 15, 18 and 29 November 2011 Voting and Summative Timeline
The public continues to be fed information that distorts the facts and the legal import of the voting that took place on the above dates.
First, the clear sense of the 15 November resolution was to impose as a condition precedent the filing of the cash bond and the submission of a Special Power of Attorney (SPA) to a common legal representative designated “to receive summons.” There is no other logical position.
Second, the Court did not rule in the 18 November 2011 Resolution that the TRO was “in full force and effect,” nor that it was not suspended. To the contrary, the voting, in which a second majority group prevailed, resulted in a decision to remain silent on the matter, as it was “common sense” anyway, and basic knowledge to all lawyers, that the nonfulfillment of a condition means that the TRO cannot be made use of.
Third, on 29 November 2011, while the second majority revised its earlier vote for silence to a vote for a categorical pronouncement of the non-suspension of the TRO, this later pronouncement does not mean there was any inaccuracy in my 18 November 2011 Dissenting Opinion. As earlier stated, that Dissent has never been assailed by any Member of the Court until now.
Fourth, there was no 9-4 voting, sustaining the non-suspension of the TRO, contrary to what is being claimed by the Acting Chief of the PIO.
Fifth, while my Dissenting Opinion of 18 November 2011 gives the reason for my continuing dissent from the majority’s decision to grant the TRO, the Dissent was also a participant’s record of what transpired on 18 November 2011.
Below is a summative timeline of what has been taking place since 15 November 2011 with respect to the issue of petitioners’ compliance with the TRO.
DATE | EVENT |
15 November 2011 | Voting on the grant of the TRO takes place in the morning; conditions are imposed; all justices present, except JJ. Leonardo-De Castro and Del Castillo. The Resolution is issued in the afternoon together with the Dissent of J. Carpio. Both documents are immediately uploaded on the Supreme Court website. The TRO was subject to three conditions, namely: “(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.” |
16 November 2011 | J. Sereno submits her Dissenting Opinion the following day; it is immediately uploaded on the website. |
17 November 2011 | J. Reyes submits his Dissenting Opinion the following day; it is immediately uploaded on the website. |
18 November 2011 | Voting on the compliance with the conditions of the TRO takes place in the morning; 7-6 in favor of non-compliance (the first majority grouping); the earlier majority is defeated in the second 7-6 voting, which has swung in favor of keeping silent on the legal effect of non-compliance (the second majority grouping). Again, JJ. Leonardo-De Castro and Del Castillo are absent. While the Resolution has not yet even been written, Atty. Marquez tells the public that the TRO is in full force and effect and, as far as the SC is concerned, petitioners can travel out of the country immediately. Promulgated late in the afternoon and released to the parties, the Resolution together with the Dissenting Opinion of J. Sereno is immediately uploaded on the website. |
22 November 2011 | J. Carpio proposes, and the Court agrees, to clarify the 18 November 2011 Resolution. It also agrees to have JJ. Velasco and Carpio confer with each other on the language of the clarification. |
23 November 2011 | J. Velasco sends the Clerk of Court and J. Carpio his typewritten version of the clarificatory Resolution. The Clerk of Court informs J. Carpio that CJ Corona sent in his own handwritten corrections on the typewritten draft Resolution from J. Velasco with the instruction that the Chief Justice’s version is to be immediately promulgated. CJ Corona’s version is to the effect that petitioners have complied with the conditions for the issuance of the TRO, and that it is in full force and effect. J. Carpio requests the Clerk of Court to hold the promulgation in abeyance while he formally writes his request to that effect. |
24 November 2011 | J. Carpio requests, in a formal letter (see above) addressed to the Chief Justice, that the promulgation of the version of the clarificatory Resolution sent by the Chief Justice to the Clerk of Court, be held in abeyance until the justices are able to meet on the matter. He states that the version sent by the Chief Justice compounds the error of the 18 November 2011 Resolution. |
29 November 2011 | The Court votes again on the 18 November Resolution regarding petitioners’ non-compliance with a condition of the TRO. While the voting on the non-compliance by petitioners with one of the conditions for the issuance of the TRO is maintained, 7-6 (the first majority grouping), the second majority grouping revises its winning vote on the 18 November 2011 Resolution to categorically state that the TRO is not suspended despite non-compliance with a condition. Early that same afternoon, while the Resolution has not yet even been written, the Acting Chief of the PIO restates his claim that the Court has always considered the TRO to have not been suspended, and that this ruling was clarified by a 9-4 vote. The Resolution comes out late in the afternoon, reflecting the fact that the voting to sustain the effectivity of the TRO was 7-6, not 9-4. |
2 December 2011 | J. Sereno submits her Dissenting Opinion at 4 p.m. It is not promulgated, neither is it uploaded on the SC website. The persons authorized to promulgate her opinion and upload it on the website is missing, and no satisfactory explanation is given. |
5 December 2011 | Clerk of Court admits to the staff of J. Sereno the real reason for the non-promulgation of the latter’s Dissent – the instruction of J. Velasco as affirmed by the Chief Justice. An officer from the Clerk of Court likewise admits that one of the diskettes was given to Atty. Jose Midas P. Marquez. A memo addressed to all the justices is circulated by Atty. Vidal to the effect that, upon the instruction of J. Velasco, the Dissenting Opinion of J. Sereno would be taken up in the following day’s En Banc session. (See above.) |
6 December 2011 | The Dissenting Opinion of J. Sereno is discussed in the En Banc session. She cites the existence of precedents as early as 1958 and as late as 2009 as justification for her disclosure of internal deliberations in her opinion and points out that the Court never took any action to prevent such disclosures. Some Justices manifested that they will answer J. Sereno’s Dissent in their own opinions. One Justice manifested he would write another Dissenting Opinion. In a letter, J. Sereno formally requests the Chief Justice to apprise her of the legal basis of his instruction to not promulgate her Dissenting Opinion on 2 December 2011, and says that she views this move as a prevention of her constitutional duty to explain the reason for her Dissent. (See above.) As of the rewriting of this Dissenting Opinion, no reply to the letter has been received by J. Sereno from the Chief Justice. |
12 December 2011 | J. Carpio circulates his Dissenting Opinion. |
13 December 2011 | Other than the separate Dissenting Opinions of J. Carpio and J. Sereno, and contrary to what was manifested in the En Banc session of 6 December 2011, no other opinion has been circulated. The justice who undertook to submit a Counter-Dissent, did not, and manifested that no such opinion would be forthcoming. Three other justices indicated that they would submit their counter-Dissents, presumably in the form of Concurring Opinions. |
Why I Dissent from the Majority Vote to Declare the Non-Suspension of the TRO Despite Non-Compliance with Condition ( ii)
In the 15 November 2011 En Banc session at which petitioners’ prayer for a TRO was granted by a vote of 8-5, a part of the highly animated discussion focused on what kind of conditions should be imposed on petitioners to allay the concerns of those objecting. Some Members of the Court, including from the eight (8) who voted to grant the TRO, insisted that a common legal representative should be denominated to receive processes on behalf of petitioners, so that the latter could continue to be bound by the outcome of the preliminary investigation and other similar processes. The 15 November 2011 Resolution thus reads:
WHEREAS, the Supreme Court, on November 15, 2011, adopted a resolution in the above-entitled case, to wit:
x x x x x x x x x
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 x x x (Emphasis supplied.)
On the same day, petitioners executed a SPA dated 15 November 2011 in favor of Atty. Ferdinand Topacio, appointing him “to produce summons or receive documentary evidence.”
On 18 November 2011, the Court En Banc convened in a special session to discuss, in relation to this case, six issues that arose in the interim after the TRO was issued. The second issue was whether the SPA submitted by petitioners in favor of Atty. Topacio complied with the conditions imposed by the Court for the issuance of the TRO.
Justice Carpio explained that the TRO issued by the Clerk of Court pursuant to the 15 November 2011 Resolution should be recalled, since there was a failure to comply with one of the Resolution’s conditions. He compared the wording of the second condition imposed by the said Resolution with the provisions of the SPA submitted by petitioners. Obviously, the authority of an agent “to receive subpoena, orders and other legal processes” as required by the Court’s Resolution is the opposite of an agency “to produce summons,” which was given by petitioners to Atty. Topacio.
One justice argued that there was “substantial compliance” with the conditions for the issuance of the TRO notwithstanding the language of the Arroyos-to-Topacio SPA, but strong objections to this proposition were immediately raised. A justice countered that there could be no substantial compliance when no person has been designated by petitioners to “receive” summons. He reasoned that the failure to comply with the second condition was as defective as if no cash bond were filed.
Another argued that, anyway, the SPA had a provision that designated Atty. Topacio “to do all things necessary.”4 This general clause would thus suffice for purposes of complying with the second condition. In response, another justice countered that the general clause could not be considered as sufficient if the Court itself specifically required a Special, and not a General, Power of Attorney.
The justice who shifted his vote from the first majority to the second majority agreed with the observations of Justice Carpio with respect to the defect of the SPA and noted that it was a jurisdictional defect. The pivotal justice who shifted his vote, added that, anyway, the defect could easily be remedied by petitioners who in 10 minutes could simply amend the SPA to reflect condition (ii).
After the discussion, the Court, voting 7-6, ruled that petitioners had failed to comply with the second condition imposed by the 15 November 2011 Resolution for the issuance of a TRO.
The Court then proceeded to discuss the legal effects of this non-compliance. Justice Carpio argued for the recall of the TRO, considering the defective SPA. However, several justices objected to the recall of the TRO and said that it was unnecessary. It was proposed instead that the TRO be deemed suspended pending compliance with the second condition.
Justice Carpio agreed to the proposed amendment of his motion. He proceeded to reformulate the issue to be voted upon: namely, whether the TRO was suspended pending compliance with condition (ii).
Instead of accepting Justice Carpio’s reformulated motion, the pivotal justice pointed out that there was no need for the Court to expressly declare that the TRO was suspended pending compliance. He thus effectively put forth a motion for the Resolution to just remain silent on the matter. But Justice Carpio insisted on his motion that the Court explicitly declare that the TRO was suspended. The justice concerned opposed the proposal, saying that the Resolution need not expressly declare the TRO suspended pending compliance, since the legal effect of non-compliance was common sense anyway. He quipped that every lawyer knows that a TRO does not become effective until the conditions for its issuance are complied with.
The Court voted in favor of the pivotal justice’s proposal and ruled by a vote of 7-6 that it was not necessary for the Resolution to express that the TRO was deemed suspended pending compliance.
A Party’s Compliance with the Conditions of the Resolution Granting the TRO Required Before a TRO Becomes Effective
The Court in granting the TRO imposed conditions on petitioner for its availment. One of the conditions was not met. Until that condition is met, the TRO is perforce suspended.
Our own Rules of Court clearly state that the grant of a TRO or preliminary injunction hinges on the court’s discretion, as evidenced by the use of the word “may.”5 Hence, availment of the provisional remedy is not a statutory right; it subjects the litigant to the conditions thereof. In conformity with this reasoning, the Court has consistently held that “the term ‘may’ is indicative of a mere possibility, an opportunity or an option. The grantee of that opportunity is vested with a right or faculty which he has the option to exercise. If he chooses to exercise the right, he must comply with the conditions attached thereto.”6
In Marquez v. Judge Sanchez,7 the Court noted the extraordinary and preemptive nature of a TRO and the need to grant it only upon the Court’s full satisfaction that the law permits it, and that an emergency demands it:
It is an extraordinary, preemptory remedy available only on the grounds expressly provided by law, specifically Section 3, Rule 58 of the Rules of Court. Moreover, extreme caution must be observed in the exercise of such discretion. It should be granted only when the court is fully satisfied that the law permits it and the emergency demands it. The very foundation of the jurisdiction to issue a writ of injunction rests in the existence of a cause of action and in the probability of irreparable injury, inadequacy of pecuniary compensation, and the prevention of multiplicity of suits. Where facts are not shown to bring the case within these conditions, the relief of injunction should be refused.
In the instant case, the 7-6 re-voting that occurred during the 29 November 2011 session overturned such elementary understanding of conditional TROs, which practitioners, judges, and even law students may now find hard to comprehend.
In essence, the new ruling would have permitted petitioners to take advantage of the TRO without even complying with a very substantive condition the Court itself had imposed. If, as one Justice has posited, petitioners failed to deposit the cash bond or it was insufficient, could the TRO have been validly issued by the Clerk of Court?
It takes no stretch of the imagination to think of the havoc that would be wreaked on the judicial system by the unfortunate disposition that the Court has introduced today in favor of petitioners. The whole country will be confused about the meaning of conditions imposed by courts for the availment of judicial writs. This Court must reverse its course expeditiously.
MARIA LOURDES P. A. SERENO
Associate Justice
1 As amended from “15 November ” to “18 November “by Justice Carpio in his amendatory letter also dated 24 November 2011.
2 Resolutory conditions make the happening of an event revoke or stop the fulfilment of an obligation and extinguish the rights arising out of the said obligation. On the other hand, suspensive conditions make the happening of an event trigger or initiate an obligation and gives rise to a right to demand that obligation. In the mean time, the obligation to perform what was promised is deemed suspended or delayed until the event agreed upon occurs.
3 “The conclusions of the Supreme Court in any case submitted to it for decision en banc or in division shall be reached in consultation before the case is assigned to a Member for the writing of the opinion of the Court. A certification to this effect signed by the Chief Justice shall be issued and a copy thereof attached to the record of the case and served upon the parties. Any Member who took no part, or dissented, or abstained from a decision or resolution, must state the reason therefor. The same requirements shall be observed by all lower collegiate courts.” (Emphasis supplied)
4 “7. Generally, to do all other lawful acts necessary for the conduct of the said case.” (SPA dated 15 November 2011)
5 “However, subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance, but shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein.” (Rules of Court, Rule 58, Sec. 5, par. 2)
6 Social Security Commission v. Court of Appeals, G. R. No. 152058, 27 September 2004, 439 SCRA 239.
