Gloria

al.,
v. deG.R.
Macapagal-Arroyo
LimaNo.
et199034/Jose
al., G.R. No. Miguel
November 15, 2011 v. de Lima
199046 Arroyo
et
Republic of the Philippines
Supreme Court
Manila

EN BANC

GLORIA MACAPAGAL-ARROYO,Petitioner,

-versus-

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,

Respondents.

X- -X

JOSE MIGUEL T. ARROYO,Petitioner,

-versus-

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,

Respondents.

X- -X

TO: Hon. LEILA M. DE LIMASecretary

RICARDO V. PARAS III

Chief State Counsel

Department of Justice (DOJ)

Padre Faura St., Ermita, Manila

RICARDO A. DAVID, JR.

Commissioner

Bureau of Immigration (BOI)

2nd Floor BOI Building

Magallanes Drive, Intramuros, Manila

GREETINGS:

WHEREAS, the Supreme Court, on November 15, 2011, adopted a resolution

in the above-entitled cases, to wit:

G.R. No. 199034 (Gloria Macapagal-Arroyo vs. 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 vs. 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).- Acting on the Special Civil Actions
for Certiorari and Prohibition with Prayer for the Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction, and mindful of the
underlying issues in the casesthe right to life (which is the highest right
under the Constitution) and its supporting rights, including the right to travel
the Court Resolved to

(a) CONSOLIDATE the above-entitled cases;

(b) REQUIRE the respondents to COMMENT on the consolidated
petitions NOT LATER THAN NOVEMBER 18, 2011;

(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

(d) SET the consolidated cases for ORAL ARGUMENTS on November 22,
2011, Tuesday, at 2:00 p.m. at the New Session Hall, New Supreme Court
Building, Padre Faura, Ermita, Manila.

The Court further Resolved to NOTE the

(a) Very Urgent Manifestation and Motion dated November 9, 2011 filed by
the Office of the Solicitor General (OSG) for respondents Hon. Leila M. De
Lima, in her official capacity as Secretary of the Department of Justice and
Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of
Immigration in G.R. No. 199034;

(b) Manifestation and Motion dated November 10, 2011 filed by the OSG for
respondents Hon. Leila M. De Lima and Ricardo A. David, Jr. in G.R. No.
199034;

(c) Supplemental Petition dated November 13, 2011 filed by counsel for
petitioner in G.R. No. 199034;

(d) Comment/Opposition (on/to the Very Urgent Manifestation and Motion

dated November 9, 2011) dated November 14, 2011 filed by counsel for
petitioner in G.R. No. 199034;
(e) Very Urgent Manifestation and Motion dated November 9, 2011 filed by
the OSG for respondents 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 in G.R. No. 199046; and

(f) Urgent Manifestation filed by counsel for petitioner in G.R. No. 199046.

The temporary restraining order shall be immediately executory. Justices

Antonio T. Carpio and Bienvenido L. Reyes have reserved the right to submit
their dissenting opinions. Leonardo-De Castro, J., on official business. Del
Castillo, J., on official leave. (adv156 & 157)

NOW, THEREFORE, effective immediately and continuing until further orders

from this Court, You, Respondents, your agents, representatives, or persons
acting in your place or stead, are hereby ENJOINED 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.

GIVEN by the Supreme Court of the Philippines, this 15th day of November
2011.

ENRIQUETA E. VIDAL
Clerk of Court

By:

FELIPA B. ANAMA
Deputy Clerk of Court En Banc

EN BANC

G.R. No. 199034 GLORIA MACAPAGAL-ARROYO, Petitioner, v. HON.

LEILA M. DE LIMA, in her capacity as SECRETARY OF JUSTICE, ET AL.,
Respondents.

G.R. No. 199046 JOSE MIGUEL T. ARROYO, Petitioner, v.

SECRETARY LEILA M. DE LIMA, in her capacity as SECRETARY OF
JUSTICE, ET AL., Respondents.

Promulgated:
 November 15, 2011

xx

DISSENTING OPINION

CARPIO, J.:

I vote to defer action on petitioners prayer for a temporary restraining order

until after the Government files its Comment and after oral arguments are
heard on the matter. This should take not more than five working days, which
is brief enough so as not to prejudice petitioners in any way. While 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.

There are also restrictions on the right to travel imposed on government

officials and employees. For example, Office of the Court Administrator
Circular No. 49-2003(B) requires judges and court personnel to secure a
travel authority from the Office of the Court Administrator before they can
travel abroad even during their approved leave of absence or free time. This
restriction to travel abroad is imposed even in the absence of a law.

In the present case, petitioners are already undergoing preliminary

investigation in several criminal cases, and charges may be filed before the
courts while petitioners are abroad. In fairness to the Government which is
tasked with the prosecution of crimes, this Court must hear first the
Government in oral argument before deciding on the temporary restraining
order which if issued could frustrate the Governments right to prosecute.
The Government must be heard on how the charges against petitioners could
proceed while petitioners are abroad.

Accordingly, I vote to (1) defer action on petitioners prayer for a temporary

restraining order, (2) require respondents to file their Comments on or before
21 November 2011, (3) hold oral arguments on 22 November 2011 at 2
oclock in the afternoon, and (4) decide whether to issue a temporary
restraining order immediately upon the conclusion of the oral arguments.

ANTONIO T. CARPIO
Associate Justice


EN BANC

G.R. No. 199034 GLORIA MACAPAGAL ARROYO, Petitioner, v. HON.

LEILA M. DE LIMA, in her capacity as SECRETARY OF JUSTICE, ET AL.,
Respondents.

G.R. No. 199046 JOSE MIGUEL T. ARROYO, Petitioner, v. SECRETARY

LEILA M. DE LIMA, in her capacity as SECRETARY OF JUSTICE, ET AL.,
Respondents.

Promulgated:

November 15, 2011

xx

DISSENTING OPINION

REYES, J.:

I DISAGREE with the majoritys decision to issue a Temporary Restraining

Order (TRO) against the enforcement of the Department of Justices (DOJ)
Department Circular No. 411, Watchlist Order2 dated August 9, 2011,
Amended Order3 dated September 6, 2011, and Watchlist Order 4 dated
October 27, 2011.

It is well-settled, to the point of being axiomatic, that any injunctive relief will
not be issued if it will result to a premature disposition or a prejudgment of
the case on its merits. Also, any application for the restraint on the
performance of an act will not be given due course if it will presume the
validity of petitioners claims, relieving them of the burden of proving the
same. In Boncodin v. National Power Corporation, 5 this Court reversed the
trial courts issuance of an injunctive writ that caused the burden of proof to
shift from the claimant to the defendant:

By issuing a writ premised on that sole justification, the trial court in effect
sustained respondents claim that [the] petitioner and Auditor Dissenting
Opinion 2 G.R. No. 199034 & 199046 Cabibihan had exceeded their authority
in ordering the suspension of the implementation of the step increments; and
that the suspension was patently invalid or, at the very least, that the
memorandum and circular were of doubtful validity. Thus, the lower court
prejudged the main case and reversed the rule on the burden of proof,
because it assumed to be true the very proposition that respondent-
complainant in the RTC was dutybound to prove in the first place.6

Similarly, in Valley Trading Co., Inc. v. Court of First Instance of Isabela,

Branch II, et al.7, this Court observed the same principle and emphatically
stated that an injunctive relief will not issue if the applicants allegations fall
short of overcoming the presumption of validity in favor of the law:

Equally pertinent is the rule that courts should avoid issuing a writ of
preliminary injunction which, in effect, would dispose of the main case
without trial. In the present case, it is evident that the only ground relied
upon for injunction relief is the alleged patent nullity of the ordinance. If the
court should issue the desired writ, premised on that sole justification
therefor of [the] petitioner, it would be a virtual acceptance of his claim that
the imposition is patently invalid or, at the very least, that the ordinance is of
doubtful validity. There would, in effect, be a prejudgment of the main case
and a reversal of the rule on the burden of proof since it would assume the
proposition which the petitioner is inceptively duty bound to prove.

Furthermore, such action will run counter to the well settled rule that laws
are presumed to be valid unless and until the courts declare the contrary in
clear and unequivocal terms. A court should issue a writ of preliminary
injunction only when the petitioner assailing a statute has made out a case
of unconstitutionality or invalidity strong enough to overcome, in the mind of
the judge, the presumption of validity, aside from a showing of a clear legal
right to the remedy sought.8 x x x.

In ABAKADA Guro Party List, et al. v. Hon. Purisima, et al., 9 this Court
extended the presumption of validity accorded to legislative issuances to
rules and regulations issued by administrative agencies:

Administrative regulations enacted by administrative agencies to implement

and interpret the law which they are entrusted to enforce have the force of
law and are entitled to respect. Such rules and regulations partake of the
nature of a statute and are just as binding as if they have been written in the
statute itself. As such, they have the force and effect of law and enjoy the
presumption of constitutionality and legality until they are set aside with
finality in an appropriate case by a competent court.10 (citations omitted)

Consistent with the foregoing, the assailed Department Circular No. 41 and
the Watchlist Orders issued thereunder enjoy such presumption of
constitutionality and regularity; the Watchlist Orders were in accordance with
the provisions of Department Circular No. 41 which, itself, was issued in the
performance of the DOJs mandate under Section 3, Chapter I, Title III and
Section 1, Chapter I, Title III of Book IV of Executive Order 292, otherwise
known as the Administrative Code of 1987 to administer the criminal
justice system in accordance with the accepted processes thereof.
(See Department Circular Nos. 17 and 18, the predecessors of Department
Circular No. 41). It is incumbent upon the petitioners to prove that the
assailed issuances are unconstitutional: that Department Circular No. 41 was
issued outside the confines of the Administrative Code, or the Administrative
Code does not authorize the DOJ to issue such a Circular, or that the
performance of its functions under the Administrative Code does not justify
the imposition of such a restraint. Regrettably, by issuing the TRO, thus,
restraining the enforcement of the assailed issuances, this Court had
effectively given credence to the petitioners claims against their validity,
which, at this stage of the proceedings, are mere allegations and no other.

I would likewise call the attention of the majority to the August 23, 2011
Order issued by this Court in G.R. No. 197854 entitled Jose Miguel T. Arroyo v.
Sec. Leila M. De Lima, etc., et al. where Jose Miguel Arroyos (MR. ARROYO)
application for a TRO against Department Circular No. 41 and Watchlist Order
No. 2011-410 issued by the DOJ on August 4, 2011. Therein, the Courts
primordial consideration in issuing the TRO was the fact that the petitioner
is not an accused in a criminal case, nor is a respondent in any preliminary
investigation, and is not subject of any warrant of arrest in the on-going
Senate investigation on the purchase by the Philippine National Police of
helicopters. This, to me, is an unequivocal testimony to the presumption of
validity accorded to Department Circular No. 41 and the Watchlist Order
issued pursuant to its provisions, considering that the TRO was issued not
because of the supposed infringement on Mr. Arroyos right to travel but
because of the DOJs clear deviation from the provisions of Department
Circular No. 41. Under Section 2 of the Circular, it is only in the following
instances that a Watchlist Order can be issued against any person: (a) there
is a criminal case pending against him before any court within this
jurisdiction; (b) there is a criminal case against him pending preliminary
investigation, petition for review or motion for reconsideration before the DOJ
or any of its prosecution offices; and (c) the Secretary of Justice deems it
proper motu proprio or upon the request submitted by any government
agency, commission, task force or similar offices created by the Office of the
President under Republic Act No. 9208 in connection with an investigation it
is conducting and/or in the interest of national security, public safety or
public health. Evidently, that there was a restraint on Mr. Arroyos right to
travel per se is insufficient to overcome the presumption of constitutionality
against the Circular such that what moved the Court to rule in Mr. Arroyos
favor was the dubiety of whether an investigation conducted by the Senate
may be a ground to issue a Watchlist Order.

The contrary clearly obtains in this case. The petitioner Gloria Macapagal
Arroyo (GMA) is subject of a preliminary investigation in three (3) cases
pending before the DOJ: (a) Danilo Lihayhay v. Gloria Macapagal-Arroyo
(Docket No. XVI-INV-10H-00251); (b) Francisco I. Chavez v. Gloria Macapagal-
Arroyo, et al. (Docket No. XVIX-INV-11D-00170); and (c) Francisco I. Chavez
v. Gloria Macapagal-Arroyo, et al. (Docket No. XVI-INV-11F-00238). She is
likewise subject of a preliminary investigation by DOJ-Commission on
Elections (COMELEC) Fact-Finding Committee for electoral sabotage and
violation of the Omnibus Election Code in DOJ-COMELEC Fact Finding
Committee v. Abalos, Sr., et al. (DOJ-COMELEC Case No. 001-2011)
and Aquilino Pimentel III v. Gloria Macapagal-Arroyo, et al. (DOJ-COMELEC
Case No. 002-2011). Mr. Arroyo, on the other hand, is also being investigated
by the DOJ-COMELEC Fact-Finding Committee for the electoral sabotage
complaint filed by Sen. Aquilino Pimentel III. A cursory reading of Sections 2
(c) of Department Circular No. 41 shows that the issuance of a Watchlist
Order is allowed under such circumstances, suggesting that the Secretary of
Justice acted within the confines thereof, and this, in turn, supports the
observance of the rule on the presumption of regularity.

Also, this is a petition for certiorari under Rule 65 of the Rules of Court, an
exercise of the remedy against grave abuse of discretion or lack of
jurisdiction. Grave abuse of discretion is defined as the capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere
abuse of discretion is not enough. It must be grave abuse of discretion as
when the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility, and must be so patent and so gross as to
amount to an evasion of a positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law. 11 The burden of proof is
on the petitioners part to demonstrate that the assailed issuances were
issued with grave abuse of discretion or without jurisdiction. The grant of the
petitioners prayer for TRO presupposed that the DOJ had indeed acted
capriciously, whimsically or outside the boundaries of its vested jurisdiction
on the basis of mere allegations.

A cursory examination of the Petition and the attachments thereto easily

reveals that she failed to demonstrate the existence of the following
requisites for the issuance of an injunctive writ: (a) the applicant must have a
clear and unmistakable right to be protected, that is, a right in esse; (b) there
is a material and substantial invasion of such right; (c) there is an urgent
need for the writ to prevent irreparable injury to the applicant; and (d) there
is no other ordinary, speedy and adequate remedy to prevent the infliction of
irreparable injury. Even on the assumption that GMA has a clear and
unmistakable right to be protected, the documents attached to her Petition
belie her claim of urgency for the issuance of a TRO.

There is nothing in the medical certificate, dated October 1, 2011 issued by

Dr. Juliet Gope-Cervantes and dated October 24, 2011 issued by Dr. Mario R.
Ver, which would indicate that GMA would suffer irreparable injury in the
event she is disallowed from seeking medical treatment abroad. Thus:
Ms. Macapagal-Arroyo has metabolic bone disease and osteoporosis due to
Hypoparathyroidism with electrolyte imbalance and Vitamin D deficiency. The
Minerva Brace should remain in place for at least three months, and barring
any complications she should be fully recovered from her spine surgery in six
to eight months. Her metabolic bone disease needs lifetime maintenance
treatment.12 x x x

Her last follow-up on October 20, 2011 showed better evidence on X Ray of
bone growth taking place in the anterior column such that the head band
part of Lehrman Minerva brace was removed. Immobilization is now down to
SOMI (Sterno-Mandibular-Occipito Immobilization) brace. She has continued
her Physical therapy as out patient. Her serum Ca and Vitamin D were
normal with the maintenance medication given but the parathyroid hormone
remain deficient.

The SOMI brace is planned to be shifted to Miami J collar on her next follow
up on November 8, 2011, that is 11 to 12 weeks post-anterior column
reconstruction.13

The medical certificate dated October 22, 2011 issued by Dr. Roberto Mirasol
is also of the same tenor:

Once she was metabolically stable she underwent another surgery anterior
fusion with titanium mesh and bone grafts. She gradually improved.
Repeated calcium and magnesium determinations were done and corrected.
Repeated iPTH determinations were consistently suppressed. She was
discharged improved with advice to keep a high calcium diet, continue taking
her calcium, magnesium and vitamin D supplements.14

From the foregoing, it appears that the medical attention being received by
GMA is adequate as she is out of danger and her condition is continuously
improving. Her claim of urgency and life-threatening conditions is, at the
very least, debatable and this should have militated against the issuance of a
TRO. Prudence and to avoid prejudging the case on its merits, giving the
Government an opportunity to be heard is definitely not much too ask.

On the other hand, if it was the petitioners right to life and the threat posed
thereto by the assailed issuances that was foremost in the majoritys mind
when they decided to issue the TRO, there would have been no basis to issue
a TRO in Mr. Arroyos favor as there is nothing in his Petition where it was
alleged that his right to life was being threatened or endangered. In his
earlier Petition, Mr. Arroyo was invoking for his right to travel in his earlier
Petition. It is no different in this present Petition; only that, the Watchlist
Order he is now attacking as unconstitutional is based on his being
preliminarily investigated by the DOJ-COMELEC Fact Finding Committee.
However, the issuance of a Watchlist Order on this ground is allowed under
the Circular; thus, the basis for the Courts issuance of a TRO in Mr. Arroyos
first Petition does not exist in this case. If the infringement of his right to
travel was not enough for this Court to issue a TRO in Mr. Arroyos first
Petition, it is certainly confounding as to why it is different in this case.

Finally, in Ermita v. Hon. Jenny Lind R. Aldecoa-Delorina, et al., 15 this Court,

emphatically stated that the judicial power to enjoin the implementation of
an official issuance, which enjoys the presumption of validity, must be
wielded and exercised with extreme caution, thus:

It is well to emphasize that the grant or denial of a writ of preliminary

injunction in a pending case rests on the sound discretion of the court taking
cognizance thereof. In the present case, however, where it is the
Government which is being enjoined from implementing an issuance which
enjoys the presumption of validity, such discretion must be exercised with
utmost caution. Executive Secretary v. Court of Appeals, enlightens:

In Social Security Commission v. Judge Bayona, we ruled that a law is

presumed constitutional until otherwise declared by judicial
interpretation. The suspension of the operation of the law is a matter
of extreme delicacy because it is an interference with the official
acts not only of the duly elected representatives of the people but
also of the highest magistrate of the land.

xxx

The possible unconstitutionality of a statute, on its face, does not of

itself justify an injunction against good faith attempts to enforce it,
unless there is a showing of bad faith, harassment, or any other
unusual circumstance that would call for equitable relief. The on its
face invalidation of statutes has been described as manifestly strong
medicine, to be employed sparingly and only as a last resort, and is
generally disfavored.

I believe that this Court should have exercised the same circumspection and
caution. It may be argued that the constitutionality of the assailed issuances
had not been prematurely determined by the majoritys decision to issue the
TRO. However, common sense dictates that granting the TRO and granting
this Petition lead to the same result: the petitioners may leave the country
anytime they wish and a cloud is cast over the constitutionality and validity
of the assailed issuances.

In conclusion, and in view of the foregoing, it is my position that it is best to

require the respondents to file a comment on the petitions, and hear them
out in oral argument, instead of issuing a TRO ex parte.
IN VIEW THEREOF, I vote to: (a) defer action on the prayer for a TRO; (b)
order the public respondents to Comment on the consolidated Petitions on or
before November 21, 2011; and (c) set the case for oral arguments on
November 22, 2011 at 2:00 p.m.; and (d) immediately after the conduct and
conclusion of the oral arguments, resolve the issue of whether or not a
temporary restraining order may be issued.

BIENVENIDO L. REYES
Associate Justice

Notes:
1
Rollo of G.R. No. 199034, pp. 59-61.
2
Id. at pp. 45-46.
3
Id. at pp. 47-48.
4
Id. at pp. 49-58.
5
G.R. No. 162716, September 27, 2006, 503 SCRA 611.
6
Id. at p. 629.
7
G.R. No. 49529, March 31, 1989, 171 SCRA 501.
8
Id. at pp. 507-508.
9
G.R. No. 166715, August 14, 2008, 562 SCRA 251.
10
Id. at pp. 288-289.
11
Marcelo G. Ganaden, et al. v. Hon. Office of the Ombudsman, et al., G.R.
Nos. 169359-61, June 1,

2011.
12
Rollo, p. 67.
13
Id. at p. 69.
14
Id. at p. 86.
15
G.R. No. 177130, June 7, 2011.

-

G.R. No. 199034 GLORIA MACAPAGAL-ARROYO v. HON. LEILAM. 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. SEC. LEILA M. DE LIMA,

in her capacity as SECRETARY, DEPARTMENT OF JUSTICE, RICARDO V.
PARAS III, in his capacity as CHIEF STATE COUNSEL, and RICARDO A.
DAVID, JR., in his capacity as COMMISSIONER, BUREAU OF
IMMIGRATION

Promulgated:

November 15, 2011

xx

DISSENTING OPINION

SERENO, J.:

When this matter was called this morning, it was clear that not one among
the members of this Court was suggesting that petitioners have no
constitutional rights that this Court must vigilantly protect. No one was
saying that petitioners should not be granted any remedy. The bone of
contention before the Court was, simply, whether to allow public respondents
their right to due process by giving them the right to comment on the
petition within a non-extendible period of five (5) days immediately after
which oral arguments were to be heard and the prayer for a Temporary
Restraining Order (TRO) immediately decided, as suggested by the minority,
or, to deny respondents such right by presuming fully the correctness of all
the allegations of the petitions, and thus grant the prayer for TRO. On this
matter, the vote of this Court was 8-51 denying the right of public
respondents to be heard before the grant of petitioners prayer for a TRO.

A. The Right of the State to be Heard

versus the Right Claimed by
Petitioners

The Rules of Court and jurisprudence prescribe very stringent requirements

before a TRO can be issued. Among these is the requirement that the TRO
may be granted only when: (a) the application or proceeding is verified, and
shows facts entitling the applicant to the relief demanded (Rule 58,
Section 4)

A petition that contains a false verification can have many consequences

among which are: (a) the Petition can be dismissed or denied, (b) the person
making the false verification can be punished for contempt of court, and (c)
the person making the false verification can be punished for perjury.

So strong is the requirement of truthful allegations in pleadings filed before

the Court that many adverse inferences and disciplinary measures can be
imposed against a person lying before the Court. This requirement of
truthfullness is especially important when a provisional remedy, and more so
when the remedy is sought to be granted ex-parte, is under consideration by
the Court. When on its face, the material averments of a pleading contain
self-contradictions, the least that the Court should do, is consider the other
side of the claim.

This is the situation with the Petition of former President Gloria Macapagal-
Arroyo. It appears that she has given inconsistent, and probably untruthful
statements before this Court.

In the instant Petition, she claims that:

It is petitioner GMAs desire to consult with medical experts of her choice and
to receive specialized care and medical attention from other institutions.
Having been immobilized by a debilitating condition for the last few months,
and having been subject to long operations and their complications, she
seeks other experts perspective and to receive optimum care to ensure that
she will not be disabled for the rest of her life and that her recovery will no
longer be impeded by complications, which she has unfortunately
experienced for the last few months. (par. 4.18, p 31 of the Petition)

The inability of petitioner GMA to leave for abroad to alleviate, or at least,

prevent the aggravation of her hypoparathyroidism and metabolic bone
disorder has given rise to the danger that the said conditions afflicting
petitioner GMA may become permanent and incurable. (par. 5.02 [d], p. 35 of
the Petition)

However, her own attachments belie the immediate threat to life she claims.

First, her own attending physician, Dr. Juliet Gopez-Cervantes, certified that
petitioner should fully recover from her spine surgery in six to eight months,
barring any complications:

This is to certify that Ms. Gloria Macapagal-Arroyo, 64 years old, female was
confined at St. Likes Medical Center-Global City from July 25 to August 5,
2011 because of Cervical Spondylotic Radiculopathy secondary to mixed
Degenerative Discs and Osteophytes with Multilevel Neural Canal Stenosis
with Retrolisthesis C4C5 and C5C6.

On July 29th, she underwent Anterior Cervical Decompression

(Disectomy/Foraminotomy) and Fusion (ACDF) C3 to C7 with titanium locked
plating/peek cages and demineralized bone matrix (DBM), which was
performed by Dr. Mario R. Ver, an orthopedic spine surgeon.

On August 9th she was readmitted to St. Lukes because of implant failure.
There was dislodgement of the titanium locked plate/screws and peek cages,
secondary to adult idiopathic latent hypoparathyroidism and concomitant
post-operative prevertebral infection.

On August 10th she underwent a second surgery by a surgical team headed

by Dr. Mario R. Ver to remove the above-mentioned anterior cervical implants
and to put new implants in place. Posterior instrumented fusion C3 to T2
using lateral mass titanium screws C3 to C6, titanium pedicle screws C7 to
T2, with autologous bone graft from right posterior ilium was performed. A
halo vest was applied in place.

On August 24th she underwent a third surgery, an anterior disectomy C7 to

T1, channel copectomy C4 to C7 and fusion C3 to T1 using titanium mesh
cage filed with autologous bone graft from the left anterior iliac crest (ICBG)
and mixed with DBM. She was discharged ambulatory, with the halo vest in
place, on September 2, 2011.

She was readmitted on September 14 th for repeat CT scan, and on the same
day the halo vest was removed and replaced with a Minerva Brace. She was
discharged the following day. Subsequent X-Rays show there is some bone
growth in the surgical site.

Ms. Macapagal-Arroyo has metabolic bone disease and osteoporosis due to

Hypoparathyroidism with electrolyte imbalance and Vitamin D deficiency. The
Minerva Brace should remain in place for at least three months, and barring
any complications she should be fully recovered from her spine
surgery in six to eight months. Her metabolic bone disease needs
lifetime maintenance treatment.2

This finding was also shared by Dr. Mario R. Ver, the same doctor who
performed the surgeries on petitioner:

Barring any complication she should be fully recovered from her cervical
spine surgery six to eight months from the time of [discharge]. Her metabolic
bone disease however needs lifetime maintenance.3
Second, petitioners travel itinerary abroad, for which the instant provisional
remedy is being sought, appears not solely for medical reasons as claimed.
In the Letter dated 02 November 2011 of Atty. Anacleto M. Diaz, counsel for
petitioner, only three countries were identified as part of petitioners medical
consultations, namely Singapore (24 October 2011, 31 October 2011 and 08
November 2011), Germany (17 November 2011) and Spain (14 November
2011).4

However, the travel authority issued by the House of Representatives on 19

October 2011 previously indicated other countries, specifically, the United
States of America and Italy:

Respectfully referred to the Honorable Secretary of Foreign Affairs, Manila,

hereby amending the Travel Authority dated September 16, 2011, copy
attached, of Honorable Gloria Macapagal-Arroyo to the United States of
America and Germany and to include Singapore, Spain and Italy to seek
medical consultations with specialists, for the period October 22 December
5, 2011 instead of September 18 October 11, 2011.. Honorable Macapagal-
Arroyo will travel with her spouse, Atty. Jose Miguel T. Arroyo and to include
her Aide-de-Camp, 1Lt. Jane B. Glova and private nurse, Ms. Maria Saharah V.
Casuga.5

If there is indeed some medical urgency and necessity for petitioner to travel
abroad, these should logically be limited only to locations where she seeks
medical advice from known experts in the field. Why then should there be
other countries of destinations that are included in her travel authority but
not specifically mentioned for purposes of medical consultations? What is the
non-medical purpose of her visit to these other countries?

Indeed, the inconsistencies of petitioners travel purpose to these two

countries were discussed in the Order dated 08 November 2011 Department
of Justice, where it referred to the earlier travel authority issued by the House
of Representatives.6 The Order reads in part:

1. Second Endorsement dated September 1, 2011 of Speaker Feliciano

Belmonte, Jr., to the Secretary of Foreign Affairs, of the Travel Authority
granted to the Applicant to participate in the Clinton Global Initiative
Meeting, aside from the medical consultations in New York, USA, and for
medical consultation in Munich, Germany, both from September 28 to
October 6, 2011, and to participate in the Regional Consultation
meetings of the International Commission Against Death Penalty in
Geneva, Switzerland on October 10-11, 2011. (p. 3 of the Order)

In any case, the list of countries where Applicant seeks to be

allowed to go is a travel tour of sorts, and which is patently
incongruent with her purpose of seeking emergency medical
treatment for a rare medical condition. She seeks to travel, initially, to
seven countries, six of them purportedly for medical consultations, and
originally, two of them for conferences, in New York and Geneva. This
original itinerary of seven countries, before this Office required a
definitive itinerary from Applicant, belies the so-called medical
purpose or the emergency nature of Applicants travel abroad. (p. 7
of the Order) [emphasis supplied]

Contrary to her assertions of urgency and life-threatening health conditions,

petitioner had expressed her intention to participate in two conferences
abroad during her supposed medical tour. It seems incongruous for petitioner
who has asked the Department of Justice and this Court to look with
humanitarian concern on her precarious state of health, to commit herself to
attend these meetings and conferences at the risk of worsening her physical
condition.

If she has been shown to be prone to submitting to this Court documents

belying her own allegations, this Court must pause, and at the very least,
listen to the side of the Government. Indeed, petitioners applications for
authority to travel with the House of Representatives and the Endorsement
of the Speaker of the House are crucial documentary evidence that should
have been included and considered in the course of granting an ex-
parte temporary restraining order, but these were unfortunately, not made
available in their entirety by the petitioner in her Petition. That is why a
twosided hearing before the Court, and not a mere ex-parte proceeding
should have occurred before the majority granted the TRO.

B. Petitioner Former President Arroyo

Must Explain Why She Is Claiming
That Her Constitutional Right Is
Being Violated, When The Claimed
Violation Is Being Caused By Her
Own Administrative Issuance

To a certain degree, the doctrine on equitable estoppel should guide the

hand of this Court. In its simplest sense, estoppel prevents a person from
disclaiming his previous act, to the prejudice of another who relied on the
representations created by such previous act. The logic behind the doctrine
comes from the common societal value that a person must not be allowed to
profit from his own wrong.

While this Court will not hesitate to protect former President Arroyo from the
adverse effect of her own actwhose validity she now denouncesin order
to protect her constitutional right, the minimum requirement of fairness
demands that the government must be heard on the matter for two
important reasons.
First, by adopting Department of Justice (DOJ) Circular No. 41, the Arroyo
Government must be presumed to have believed in and implicitly
represented that it is valid and constitutional. An explanation from her must
be heard on oral argument on why this no longer seems to be the case. Such
disclosure will reveal whether she is dealing in truth and good faith with this
Court in respect of her allegations in her Petition, a fundamental requirement
for her Petition to be given credence.

Second, it will reveal whether in fact her administration then believed that
there was statutory basis for such issuance, which is important to resolving
the question of the existence of a basis, including policy or operational
imperatives, for the administrative issuance that is DOJ Circular No. 41.

Petitioner Arroyo comes before this Court assailing the constitutionality of

the said Circular, which was issued by Alberto Agra, the Justice Secretary
appointed by petitioner during her incumbency as president. This Circular
thus bears the stamp of petitioner as President ordering the consolidation of
the rules governing Watchlist Orders. Under the doctrine of qualified political
agency, the acts and issuances of Agra are acts of the President and herein
petitioner herself. As the Court recently ruled:

The Presidents act of delegating authority to the Secretary of Justice by

virtue of said Memorandum Circular is well within the purview of the doctrine
of qualified political agency, long been established in our jurisdiction.

Under this doctrine, which primarily recognizes the establishment of a single

executive, all executive and administrative organizations are adjuncts of the
Executive Department; the heads of the various executive departments are
assistants and agents of the Chief Executive; and, except in cases where the
Chief Executive is required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are performed
by and through the executive departments, and the acts of the secretaries of
such departments, performed and promulgated in the regular course of
business, are, unless disapproved or reprobated by the Chief Executive,
presumptively the acts of the Chief Executive.7

Thus, the acts which petitioner claims to have violated her constitutional
rights are the acts of her alter ego, and consequently, her own.

C. This Court Must Face The Risk Of

Flight Frontally, And Ensure That
It Is Not Unduly Favoring An
Individual To The Prejudice Of The
State, And To Do This, Must At
Minimum, Allow Government To
Be Heard Before Granting The
TRO

The court cannot evade the question that is uppermost in the minds of many
is this request for a TRO driven by petitioners desire to evade the
investigatory and judicial process regarding their liability for certain alleged
criminal acts? If the risk of flight is high, then this Court must adopt either of
the following approaches: (1) deny the right to travel, or (2) allow travel
subject to certain restrictions.

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--vis persons under investigation during a preliminary
investigation.

It has been held in one case 8 that it is not only through court order that the
right to travel may be impaired. In fact, the Supreme Court itself has issued
stringent regulations on the right to travel, including the denial of the travel
authority request of employees who may be undergoing preliminary
investigation. An important question thus must be asked: why is the majority
not even willing to hear the government before issuing the TRO, when, in the
supervision of judiciary employees, a mere administrative officer of the
Supreme Court, and not a judicial officer, may deny the right to travel?

It is possibly incongruent for the Court to hinder the exercise of the DOJ
Secretarys power to issue a Watchlist Order restricting the right to travel of
a person subject of its preliminary investigation, when the Court itself strictly
regulates the travels of its own personnel. In A. M. No. 99-12-0-SC, as
revised, the Court regulates the foreign travels of all court personnel by
requiring them to secure a travel authority before leaving. 9 Hence, no official
or employee of the Supreme Court in particular and the Judiciary in general
shall leave for any foreign country, whether on official business or official
time or at ones own expense without first obtaining permission from the
Supreme Court.10

In fact, the Chief Justice recently reiterated this policy, in light of the
repeated practice of court personnel of going to foreign countries without
obtaining prior permission or belatedly filing their leaves upon their
return.11 Personnel of the lower courts are even required to obtain clearance
as to pending criminal and administrative cases filed against them, if
any,12 and those who shall leave the country without travel authority issued
by the Office of the Court Administrator shall be subject to disciplinary
action.13 In several cases, the Court had held administratively liable and
disciplined a Clerk of Court, 14 Court Stenographer,15 Stenographic
Reporter, Deputy Sheriff, and a Utility Worker,18 for travelling without the
16 17

necessary court authority. That means that the pendency of even an

administrative case is sufficient basis to deny the right to travel of court
employees. This denial is effected by the withholding of the necessary
endorsements by the Supreme Courts administrative officers.

It appears that the Court, by its own administrative actions, has

acknowledged the states limited power to abridge the right to travel. At the
very least therefore, the State must be heard on the extent of this limited
power to regulate the right to travel.

The majority cites the right to life as an underlying value that its Resolution
is trying to protect. Petitioner Arroyos own documentary submissions
however, belie the existence of any threat to such life. It also cites
petitioners 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 todays
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.

IN VIEW THEREOF, I vote to: (a) defer action on the prayer for a Temporary
Restraining Order; (b) order the public respondents to Comment on the
consolidated Petitions no later than 21 November 2011; and (c) conduct oral
arguments on 22 November 2011 at 2:00 p.m. Immediately thereafter, the
prayer for a temporary restraining order will be decided.

MARIA LOURDES P. A. SERENO

Associate Justice

Notes:
1
Dissenting were Justices Antonio T. Carpio, Jose C. Mendoza, Maria Lourdes
P.A. Sereno, Bienvenido L. Reyes, Jr., and Estela M. Perlas-Bernabe.
2
Medical Certificate dated 01 October 2011, Annex I of the Petition.
3
Medical Certificate, Annex F of the Petition.
4
Letter dated 02 November 2011, Annex O of the Petition.
5
1st Endorsement dated 19 October 2011 of Atty. Artemio A. Adasa, Jr.,
Officer-in-Charge of the Office of the Secretary General of the House of
Representatives, Annex M-2 of the Petition.
6
DOJ Order dated 08 November 2011, attached as Annex 1 of the Very
Urgent Manifestation and Motion dated 09 November 2011.
7
Judge Angeles v. Hon. Manuel Gaite, G.R. No. 176595, 23 March 2011.
8
Silverio v. CA, G.R. No. 94284, 8 April 1991, 195 SCRA 760.
9
II. To REFER to the Chairmen of the Divisions for their appropriate action or
resolution, for and in behalf of the Court En Banc, administrative matters
relating to, or in connection with,: (h) Foreign travels of Justices of the
Court of Appeals and the Sandiganbayan, Judges of the Court of Tax Appeals
and the Lower Courts, and the officials and personnel of such courts; and the
recall or revocation of the travel authority granted, as well as any matter
arising from such travel authority or its recall or revocation. (A. M. No 99-
12-08-SC, as revised, effective 01 May 2003).
10
SC Memorandum Order No. 14-2000 dated 06 November 2000.
11
NOW, THEREFORE, for consistency and uniformity and to protect the
interest of the public service, the Court reiterates the policy of securing prior
permission or authority from the Court for foreign travels of its officials and
employees even at the travellers expense. Application for foreign travel
shall be coursed through and evaluated and recommended for appropriate
action by the Chiefs of Offices for Supreme Court Officials and employees.
Applications for leave of absence for travel outside the country without the
required permission or authority shall forthwith be denied. (Memorandum
Order No. 32-11 dated 20 September 2011)
12
OCA Circular No. 49-2003 dated 20 May 2003, signed by then Court
Administrator Presbitero J. Velasco, Jr.
13
Id.
14
Ms. Larizza Paguio-Bacani, the Branch Clerk of Court II of the Municipal Trial
Court of Meycauayan, Bulacan, was found guilty of dishonesty by falsifying
her Daily Time Records and leaving the country without the requisite travel
authority, and was ordered suspended from the service for one (1) year,
without pay. (Concerned Employees of the Municipal Trial Court of
Meycauayan, Bulacan v. Paguio-Bacani, A. M. No. P-06-2217 [Formerly, OCA
IPI No. 06-2375-P] dated 30 July 2009, 594 SCRA 242)
15
Raquel S. Bautista, Stenographer I of the Municipal Trial Court of Guiguinto,
Bulacan, decided to work overseas, but failed to secure the required
clearances for travel abroad because the job offered to her in Dubai was
urgently needed. (Reyes v. Bautista, A. M. No. P-04-1873, 13 January 2005,
448 SCRA 95)
16
Virginia G. Lim, a Stenographic Reporter of the Regional Trial Court of
Makati City, Branch 135, was dismissed from the service, for among others,
disregarding the judges orders to transcribe the longpending stenographic
notes and choosing instead to go on leave, even when her application for
leave has not been approved by the Office of the Court Administrator. (Ibay
v. Lim, A. M. No. P-99-1309, 11 September 2000, 340 SCRA 107)
17
Victorio M. Acua, a Deputy Sheriff of the Metropolitan Trial Court of San
Juan, was also dismissed from the service because he had left for Saipan to
be a contract worker there, without securing permission from the Court.
(Recio v. Acua, A. M. No. P-90-452 and P-92-667, dated 07 April 1993, 221
SCRA 70)
18
Rodrigo C. Calacal, a Utility Worker I of the Municipal Trial Court of Alfonso-
Lista Aguinaldo, Ifugao, was reprimanded and warned for having left for
Singapore from 15 May 2008 to 06 June 2008, without securing permission
from the Office of the Court Administrator. (OAS-OCA v. Calacal, A. M. No. P-
09-2670, 16 October 2009, 604 SCRA 1)

Republic of the Philippines

Supreme Court
Manila
 EN BANC

NOTICE

Sirs/Mesdames:

Please take notice that the Court en banc issued a Resolution

dated NOVEMBER 18, 2011, which reads as follows:

G.R. No. 199034 (Gloria Macapagal-Arroyo vs. 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 vs. 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 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

(a) NOTE the Certification dated November 15, 2011 of Araceli C. Bayuga,
SC Chief Judicial Staff Officer, stating that Gloria Macapagal-Arroyo and Jose
Miguel T. Arroyo posted a cash Bond in the amount of Two Million Pesos
(P2,000,000.00) under Official Receipt No. 0030227 dated November 15,
2011 in compliance with the resolution dated November 15, 2011;

(b) NOTE the Special Power of Attorney dated November 15, 2011 executed
by Jose Miguel T. Arroyo, appointing Atty. Ferdinand Topacio as his legal
representative in the Philippines to be his true and lawful attorney-in-fact, for
his name, place and stead, to do and perform the following acts and things,
to wit:

(i) To sign, verify and file a written statement;

(ii) To make and present to the court an application in connection with any
proceedings in the suit;

(iii) To produce summons or receive documentary evidence;

(iv) To make and file compromise or a confession of judgment and to refer

the case to arbitration;

(v) To deposit and withdraw any money for the purpose of any proceeding;

(vi) To obtain copies of documents and papers; and

(vii) Generally to do all other lawful acts necessary for the conduct of the
said case

and he thereby agrees that all acts, deeds and things lawfully done by said
attorney shall be construed as acts, deeds and things done by him and he
undertakes to ratify and confirm all and whatsoever that his said attorney
shall lawfully do or cause to be done for him by virtue of the power thereby
given. He shall commit to the Court that he shall instruct his legal
representative to amend par. (iii) above to state: to receive summons or
documentary evidence and forthwith submit this compliance with the Court;

(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;

(d) DENY the Urgent Motion to Move Oral Arguments Earlier dated
November 16, 2011 filed by counsel for petitioner Gloria Macapagal-Arroyo;

(e) NOTE the Manifestation dated November 16, 2011 filed by counsel for
petitioner Gloria Macapagal-Arroyo, informing the Court that in accordance
with the conditions laid down in the Temporary Restraining Order dated
November 15, 2011, said petitioner served upon the OSG and filed with this
Court copies of her Compliance dated November 15, 2011 by registered mail,
as evidenced by Registry Receipt Nos. 3749 and 3750 issued by the
Robinsons Ermita Postal Station;

(f) NOTE, subject to the further commitment under par. (b) above, the
Compliance dated November 16, 2011 filed by counsel for petitioner in G.R.
No. 199046, submitting the following documents in compliance with the
resolution of November 15, 2011:
(i) Annex A A copy of Official Receipt No. 0030227-SC-EP dated November
15, 2011, showing their payment of the required bond in the amount of Two
Million Pesos;

(ii) Annex B A copy of the Certification dated November 15, 2011 of the
Fiscal Management and Budget Office, showing the payment of petitioners
Jose Miguel T. Arroyo and Gloria Macapagal-Arroyo of the cash bond of Two
Million Pesos; and

(iii) Annexex C and C-1 A copy of the appointment of Atty. Ferdinand S.

Topacio as legal representative of petitioner Jose Miguel T. Arroyo and former
President Gloria Macapagal-Arroyo;

(g) NOTE the Special Power of Attorney dated November 15, 2011 executed
by Gloria Macapagal-Arroyo, appointing Atty. Ferdinand Topacio as her legal
representative in compliance with the resolution of November 15, 2011. 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;

(h) DENY the Motion for Leave of Court to Accept Memorandum as Amicus
Curiae Submission dated November 12, 2011 filed by movant Fr. Ranhilio
Callangan Aquino in G.R. No. 199034;

(i) NOTE WITHOUT ACTION the aforesaid Memorandum dated November

12, 2011 filed by Fr. Aquino;

(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;

(k) NOTE the Manifestation and Motion (Re: Consolidated Urgent Motion for
Reconsideration and/or to Lift Temporary Restraining Order dated November
16, 2011) dated November 17, 2011 filed by counsel for petitioner Gloria
Macapagal-Arroyo;

(l) NOTE the Urgent Manifestation dated November 17, 2011 filed by counsel
for petitioner Jose Miguel T. Arroyo, stating, among other things, that he is
adopting the allegations in the Urgent Motion for Respondents to Cease and
Desist from Preventing Petitioner GMA from Leaving the Country filed by
petitioner Gloria Macapagal-Arroyo insofar as the said allegations are
relevant to his petition and joining petitioner Gloria Macapagal-Arroyo in her
prayer; and

(m) NOTE the Urgent Opposition dated November 18, 2011 filed by the OSG
for the respondents.
 Very truly yours,

ENRIQUETA E. VIDAL
Clerk of Court

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. SEC. LEILA M. DE LIMA,

in her capacity as SECRETARY, DEPARTMENT OF JUSTICE, RICARDO V.
PARAS III, in his capacity as CHIEF STATE COUNSEL, and RICARDO A.
DAVID, JR., in his capacity as COMMISSIONER, BUREAU OF
IMMIGRATION

Promulgated:

November 18, 2011

xx

DISSENTING OPINION

SERENO, J.:

At this mornings special session called exclusively to deliberate on the

pending incidents in the above-consolidated Petitions, the Court voted on
several matters:

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 76 1 finding that there was no compliance
with the second condition of the TRO.

The third voting proceeded from the result of the second votingwhether,
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.

A. On the Motion for Reconsideration of the TRO

In the deliberation this morning, I had produced for the Court a list containing
Watch List Orders (WLO) that had been revoked and lifted by the Department
of Justice since 1991. It appears that all the Secretaries of Justice of former
President Gloria Macapagal Arroyo ordered hundreds of Watch List Orders. By
granting the TRO, this Court may effectively be contributing to the
undermining of this countrys administrative institutions without hearing the
Republic of the Philippines in oral arguments for it to be given the chance to
defend the DOJs long institutional practice of issuing Watch List Orders.

Watch List Orders, Hold Departure Orders, Off-loading for being suspected as
attempting to violate foreign employment laws, criminal laws such as anti-
trafficking statutes, requiring travel authorities from all government
employees before they are allowed to fly out are part and parcel of the
running of our Republic called the Philippine State.
The majority is indicating, by its issuance of the TRO without hearing the side
of government, that it is giving prima facie validation to petitioners
proposition that only a strict interpretation of Article 3, Section 6 of the Bill of
Rights is allowed. Meaning, the only justification for a valid restriction on the
right to travel should be found only in one of the three exceptions provided
thereinpublic safety, national safety or public health. On the other hand,
this 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. OFWs will have to cause to complain about the restrictions
being imposed on them by many government agencies before they can work
abroad. Off-loaded passengers would give legal nightmares to the Bureau of
Immigration. It might, indeed, render impossible the effective administration
of justice of our countrys laws. 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 lifethreatening,
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 agesin 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. Government must be asked whether it is even
physically possible to maintain the infrastructure of our system of laws if
administrative offices were not given the limited power to regulate the right
to travel. The ability of the Philippine Republic to keep its territorial integrity
may even hinge on that question. To what extent is this Court contributing to
the weakening of the Philippine State?

It has been argued that this government is not without recourse to reach
petitioners should they fail to return to the country, and that the
appointment of a substitute to accept processes and notices on her behalf
effectively precludes a defense based on her lack of physical presence within
the countrys jurisdiction. Should such eventuality happen, however, we just
have to look at the sorry state of this countrys many futile attempts to
employ the long arm of the law in reaching those who have been accused
of multitudes of crimes during the long years of Martial Law to realize that
this argument is illusory.
When out of the countrys 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 countrys 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 countrys 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 peoples 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 peoplethat 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.

In G.R. No. 197930, this Court denied Efraim Genuinos prayer for a TRO
against Watchlist Order No. 2011-422, issued under the authority of the
same DOJ Circular No. 41 that is the subject of these petitions. Genuino also
cited constitutional grounds, although he did not allege any medical
emergency. The Court denied the prayer because it wanted to await the
Comment of respondent DOJ Secretary. Considering that petitioners herein
are not under any medical emergency, as certified by petitioner Gloria
Arroyos own doctors, can this Court not just wait for the Comment and the
oral arguments to be shortly conducted?

B. On the Show-Cause Order

directed to a public respondent
Leila de Lima For her public
display of disrespect towards this
Court.

This Court need not aggravate the present situation. The Court, motu
proprio, even without the motion from petitioners herein, is ordering public
respondent De Lima to show cause why she should not be held for indirect
contempt by showing disrespect to the Court. The majority has explained
that this order is anyway, to just require an explanation from her, and is thus
not out of the ordinary. I believe however, that to order her now to show
cause for showing disrespect to the Court signals a message to the public
that it is most unfortunate. It must be remembered that the failure to comply
with the lawful order of this Court is already disrespect of this Court. If her
her explanation regarding her failure to comply with the resolution of 15
November 2011 is already satisfactory, then the second item to explain is
already rendered moot. On the other hand, if the explanation proves
unsatisfactory, it already implies disrespect for this Courts orders. For she
has said nothing that can be deemed disrespectful, independent of her
statement that she would not comply with the 15 November 2011 Resolution
of this Court. But at this very sensitive juncture, when peoples passions are
highly inflamed, for the Court to show sensitivity to what it presumably
perceives as disrespect unnecessarily feeds those passions. What is called
for right now is utmost restraint. The Court should show that it has the ability
to tolerate, to a limited degree, expressions of passion and deep beliefs in
some fundamental ends or values, considering what is in the public thought
right now. It is sad that such a show cause order might possibly only bring
harm with no foreseeable good at all. Thus, I voted against the inclusion of
such phrase in the Show-Cause Order.

C. Effectivity of the TRO

The majority, by a 7-6 voting, denied the minoritys 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 impliedfor 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 samepetitioners 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.

MARIA LOURDES P. A. SERENO

Associate Justice

Note:
1
The seven justices who voted for the majority includes 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.