CASE: Gloria Macapagal-Arroyo, Petitioner, 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, Respondents
G.R. 199034,

And

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,
G.R. No. 199046, December 13, 20111

I. STATEMENT OF FACTS

On November 15, 2011, the Supreme issued an immediately

executory Temporary Restraining Order (TRO) enjoining the
implementation of DOJ Department Circular No. 41 and Watchlist
Order and thereby allowing the petitioners Arroyo spouses to leave the
Philippines after complying with the conditions in the Resolution. The
respondent Secretary of Justice Leila De Lime however prevented the
Arroyos from leaving.

The government, through the Office of the Solicitor General,

immediately filed a Consolidated Urgent Motion for Reconsideration
and/or to Lift Temporary Restraining Order. Petitioner Gloria
Macapagal Arroyo also filed an Urgent Motion for Respondents to
Cease and Desist from Preventing Petitioner GMA from Leaving the
Country. She also moved to cite the Respondent Secretary of Justice
in contempt for failure to comply with the TRO.

Petitioners executed a SPA dated 15 November 2011 in favor of

Atty. Ferdinand Topacio, appointing him to produce summons or
receive documentary evidence.

___________________________

1 http://www.gov.ph/2011/11/15/gloria-macapagal-arroyo-v-de-lima-et-
al-g-r-no-199034jose-miguel-arroyo-v-de-lima-et-al-g-r-no-199046/
last visited: March 8, 2017

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 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.

On November 18, 2011, the Court conducted a special en banc

session to tackle the pending incidents of the consolidated cases. 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
Resolutions 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
Courts 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.

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 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 Carpios 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 justices 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.

II. STATEMENT OF PROCEEDINGS

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 cases
the right to life (which is the highest right under the Constitution) and its
supporting rights, including the right to travel

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III. ISSUES

Among the more important issues resolved by the Court during the special
en banc session were as follows:

1. Should the Resolution granting the prayer for a TRO be

reconsidered?

2. Was there compliance with the 2nd condition of the TRO? If there is
none, should the TRO be suspended in the meantime?

IV. RULINGS

On issue no. 1, YES, the Resolution granting the petitioners

prayer for a TRO should be reconsidered.

The Justices maintained their 8-5 vote on the issuance of the

TRO. The majority thus require[d] Secretary De Lima to
IMMEDIATELY COMPLY with the said temporary restraining order
by allowing petitioners to leave the country.

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. xxx. 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 life-threatening, 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 ages in 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.

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 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 people - that 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.

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?

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 On Issue No. 2, NO, there was no compliance with the 2nd
condition of the TRO; hence, YES, the TRO should be suspended in the
meantime.

The Court voted 76 (1) that there was no compliance with the
2nd condition of the TRO. But it nonetheless voted by the same 7-6
margin (2) that there was no need to explicitly state the legal effect on
the TRO of the noncompliance by petitioners with the 2ndcondition.

The November 18, 2011 Resolution instead noted the SPA

executed by Gloria Macapagal-Arroyo, appointing Atty. Ferdinand
Topacio as her legal, and merely stated that 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;

The majority, by a 7-6 voting [sic], 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;

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 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 implied for it is a basic
principle that the failure of petitioners to comply with one of the
conditions in the Resolution dated 15 November 2011 is a jurisdictional
defect that suspends, at the least, the effectivity of the TRO. Therefore,
the TRO, until faithful compliance with the terms thereof, is legally
ineffective. It was a human mistake, understandable on the part of the
Clerk of Court, considering the way the TRO was rushed, to have
issued the same despite non-compliance by petitioners with one of the
strict conditions imposed by the Court. Nevertheless, good faith and all,
the legal effect of such non-compliance is the same petitioners 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.

V. JUDICIAL CONTRIBUTION / DOCTRINE

The Petitioner is contending on her right to life as described

under Article III, Section 1 No person shall be deprived of life,
liberty, or property without due process of law, nor shall any person be
denied the equal protection of the laws. And Article III Section 6,
The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.

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 While the Court will not hesitate to protect former President
Arroyo from the adverse effect of her own act whose validity she
now denounces in 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.

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.

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

VI. SIGNIFICANT DISSENT

Dissenting Opinion of Justice Antonio T. Carpio, November 15, 20112

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

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 whether to issue a temporary restraining order immediately upon the
conclusion of the oral arguments.

__________________________

2 http://www.gov.ph/2011/11/15/gloria-macapagal-arroyo-v-de-lima-et-
al-g-r-no-199034jose-miguel-arroyo-v-de-lima-et-al-g-r-no-199046/

Dissenting Opinion of Justice Bienvenido L. Reyes, November 15, 20113

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 Order4 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.

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.

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

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 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

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3 http://www.gov.ph/2011/11/15/gloria-macapagal-arroyo-v-de-lima-et-
al-g-r-no-199034jose-miguel-arroyo-v-de-lima-et-al-g-r-no-199046/

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.

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

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 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.

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.

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.

Dissenting Opinion of Justice Maria Lourdes P.A. Sereno, November 15,

20114

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 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

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4 http://www.gov.ph/2011/11/15/gloria-macapagal-arroyo-v-de-lima-et-
al-g-r-no-199034jose-miguel-arroyo-v-de-lima-et-al-g-r-no-199046/

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 8-5 denying the right of public respondents to be
heard before the grant of petitioners prayer for a TRO.

Justice Sereno talks of the right of the state to be heard versus

the right claimed by petitioners.

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

Petitioners travel itinerary abroad, for which the instant

provisional remedy is being sought, appears not solely for medical
reasons as claimed. There are clear showing of petitioners
inconsistencies on her travel purpose as it contains also non-medical
purpose of her visit in other countries. Contrary to her assertions of
urgency and life-threatening health conditions, petitioner had

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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.

According to Justice Sereno, 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
administration. 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. 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.

The court must face the risk of flight for it cannot evade the
question that is uppermost in the minds of many if the request for
TRO by petitioner is her 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 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.

14
 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.

VII. SEPARATE OPINIONS

Separate Opinion of Justice Presbitero J. Velasco, Jr., December 13,

20115

The separate opinion of Jusitce Velasco is in response to the

Dissenting Opinions of Justices Antonio T. Carpio and Maria Lourdes
P.A. Sereno in relation to the Temporary Restraining Order (TRO)
issued by the Court on November l5, 2011 pursuant to its Resolution
of even date. He mentioned that the unpromulgated dissenting
opinion of Justice Sereno filed late and in contravention of Section 2,
Rule 10 of the Internal Rules of the Supreme Court (IRSC). The TRO
authorized by the November l5, 20ll Resolution is immediately
executory upon compliance with the posting of the P2M bond. It is his
view that petitioners are required only to post the bond of P2M to
pave the way for the issuance of the TRO. This is clear from the 2nd
sentence of condition (i) that the failure to post the bond within 5 days
will result in the automatic lifting of the TRO.

While The Court ruled later in its November 22, 2011

Resolution that the special power of attorney submitted by Atty.
Topacio on November 15, 2011 was insufficient, the TRO however
remained effective by virtue of the submission of the requisite P2M
bond. It should be made abundantly clear that the qualification
respecting the automatic lifting of the TRO obtaining in condition (i)

15
 was not made to apply to condition (ii), implying that non-compliance
with the requirement on the appointment of the legal representative
will not result in the lifting of the TRO. The matter of whether or not
condition (ii) constitutes a condition precedent or a subsequent
condition, is now really of little moment. The important consideration
is that non-compliance with condition (ii) would not, under the very
terms of the enabling Resolution or the TRO itself, result in the
automatic lifting of the restraining order thus granted.

_____________________________

5 http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december20
11/199034_velasco.htm

At any rate, on November 15, 2011, petitioners complied with

conditions (i) and (ii) and, as a result, the Office of the Clerk of Court
issued the TRO pursuant to the November 15, 2011 Resolution. The
presumptive validity of the TRO must be recognized, albeit the original
special power of attorney accorded Atty. Topacio was determined later
to be non-compliant.

Respondent De Lima chose to ignore the TRO and so, on

November 18, 2011, the Court issued a Resolution requiring her to
show cause why she should not be cited for contempt for her failure to
comply with the TRO and further require her to immediately comply
thereto. Justice Carpio questioned the accuracy and completeness of
this Resolution. Thus, the Resolution in question was discussed during
the November 22, 2011 session. By a vote of 7-6, the Court found that
there was no sufficient compliance with the required appointment of
the legal representative of petitioners. Thereafter, there was a long
discussion on whether or not the TRO was suspended pending
compliance with the second condition. He distinctly remember
moving that a vote be made on the issue of the suspension or non-
suspension of the TRO pending satisfaction of the second condition.
Thus, the majority vote of 7 held that the TRO was not suspended
pending compliance with the appointment of the legal representative
of petitioners. As a matter of fact, on November 18, 2011, petitioners
already submitted a special power of attorney appointing Atty.
Topacio as their legal representative to receive summons, subpoenas,
orders and other legal processes. Thus, by November 18, 2011, the
issue of whether or not the TRO was suspended pending compliance
with such requirement has already become moot and academic and
there is actually no necessity to clarify said issue. However, to set the
record straight, I certify that the draft directive on the non-suspension
of the TRO is correct and accurate.

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 On November 29, 2011, the Court En Banc voted anew on the
same issue of the non-suspension of the TRO pending compliance with
the second condition and again, by a vote of 7 against 6, the Court held
that the TRO was not suspended. The majority sustained the correctness
and validity of the November 22, 2011 Resolution. This should put the
issue to rest.

Separate Opinion of Justice Arturo D. Brion, December 13, 20116

The separate opinion of Justice Brion is to reflect his view and

explain his vote on the deliberation of the Court En Banc n November
18 ans 22, 2011 on the issue of non compliance with the GMA TRO.

______________________________

6 https://www.scribd.com/document/77632912/Brion-Separate-Opinion
On November 15, 2011, the Court issued a Temporary
Restraining Order (TRO) in favor of the petitioners. In the special En
Banc meeting of November 18, 2011, Justice Antonio T. Carpio
brought to the attention of the Court the petitioners failure to comply
with the second condition, specifically with the appointment of a legal
representative with full authority to receive summons and other court
process during their absence. The legal representative was merely
capacitated to produce, not receive summons. As a result of the
observation, the Court issued another Resolution stating that

The Court further resolved to:

xxxx

(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 [the Special Power
of Attorney] to state: to receive summons or documentary evidence
and forthwith submit this compliance with the Court.

On the same day, November 18, 2011, Atty. Topacio complied

with the above Resolution by filing a Supplemental Compliance.

Despite the compliance, the Court still faced two questions

relating to the petitioners failure to comply.

The first was the question of whether indeed there had been
failure to comply. The second was the effect of this failure if there had
been such a failure.

17
 I voted in the negative on the first question in light of the
terms of the TRO. While the compliance with the second condition
might have been lacking on November 18, 2011, to conclude that total
failure had taken place was premature; the TRO imposed on the
petitioners a period of five (5) days from notice within which to
comply and the period had not lapsed on November 18, 2011 since
service of the TRO was only on November 15, 2011. Indeed on the
same day November 18, 2011 the petitioners made good on this lapse.
Thus, to me, a negative vote in the November 18, 2011 meeting was
the necessary conclusion because of the prematurity of determining
whether complete failure to comply had taken place.

The answer to the second question flows from the first and also
from the express terms of the TRO. By its express terms, the TRO was
immediately executory, subject to automatic lifting if failure at
compliance takes place. In other words, the TRO was to be
immediately effective particularly during the five-day period of the
petitioners compliance with the conditions. My vote, therefore, had
likewise to be in the negative, subject to the failure to comply with the
condition within the five-day compliance period.

In these lights, I see no problem in the full effect of the TRO

without need of suspending its effects because of the petitioners
initial, but immediately remedied, lapse.

Submitted for the En Bancs consideration.

Separate Concurring Opinion, Justice Roberto A. Abad, December 13,

20117

Having read the separate dissenting opinions, especially that of

Justice Maria Lourdes P.A. Sereno, I am compelled to dwell on two
points.

One. It is not true that the Court or the Chief Justice has
declined to promulgate Justice Serenos dissenting opinion, following
the vote taken in the case on November 29, 2011. She agreed to
submit her dissent not later than December 1. But she did not. Neither
did she ask the Chief Justice and the other members of the Court for
additional time to submit her dissenting opinion. Consequently, the
Court promulgated its November 29 Resolution in the case without
Justice Serenos promised dissenting opinion. The Court did not deny
her the right to have her opinion promulgated together with the main
Resolution. She broke agreement by not submitting it on the date set
for it.

Subsequently, Justice Sereno wanted her belated dissenting

opinion promulgated on December 2, 2011. But, since her demand for

18
 late and separate promulgation departs from established procedure,
the author of the main Resolution asked that such opinion be
calendared for En Banc consideration. She, however, sees this as a
suppression of her right to submit a dissenting opinion. Ultimately, the
En Banc decided to break precedents and allow the late promulgation
of her dissent together with the concurring opinions of the rest of the
members of the Court, like this one, to fairly present a fair picture of
the problem that Justice Sereno has created by her failure to abide by
simple agreement and the rules.

Two. Section 2, Rule 10, of The Internal Rules of the Supreme

Court provides for confidentiality of its deliberations.
___________________________

7 http://sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december
2011/199034_abad.htm

Justice Sereno has breached this rule, narrating in her dissenting

opinion her recollection of the En Bancs deliberation in executive
session on the effect of the petitioners failure to comply with the
second condition of the temporary restraining order (TRO) that the
Court issued in the case.

Relying on their personal recollection of the En Banc

discussions on the effects of petitioners failure to fully comply with
the second condition of the TRO, Justices Carpio and Sereno claim
that the Justices voted 7-6 on a proposition I submitted that there was
no need to state that the TRO had been suspended since that was the
effect of the non-compliance with its conditions.

I may have suggested the point sometime during the debate but
I recall withdrawing it when I realized that the TRO did not subject its
issuance and effectivity to petitioners prior or immediate compliance
with such conditions. Indeed, the collective recollection of the
majority of the Justices who did not join Justices Carpio and Serenos
dissents is that the vote was taken to conclude categorically that the
non-compliance did not suspend the force and effect of the TRO.

When the proceedings in any collegial meeting is intended to be

preserved and cited as a memorial of what had taken place in such a
meeting, the proceedings are recorded. This is true of Congress of the
Philippines and of the Constitutional Convention. But when what is
important in a collegial meeting are the actions or the resolutions that
the body passed by votes, only such actions or resolutions constitute a
faithful recording of the bodys will. This is true of the sessions of the
Supreme Court, past or present.

19
 The main purpose of En Banc or Division sessions is to
deliberate on and decide the disputes between contending parties in
the cases before it. And its decisions are, by Constitutional mandate,
written by a member upon authority of the Court. The Courts
deliberations are not evidence of what it voted on. That vote is
restricted within the confines of the written order, resolution, or
decision that it issues.

The Courts deliberations are confidential simply because the

Court realizes that only by making it so can the Justices freely discuss
the issues before it. Broadcasting such discussions to the public would
have a chilling effect on those who take part in it. One would be
careful not to take unpopular positions or make comments that border
on the ridiculous, which often is a way of seeing the issues in a
different perspective. Personally, I often take temporary positions on
issues, weighing each one as the discussion goes. I could take the role
of a devils advocate before settling on the opposite view. The danger,
as what has happened here, is that Justice Carpio and Sereno may
have taken something I said out of context or before I made up my
mind when the voting took place.

If our deliberations cannot remain confidential, we might as well

close down business.

VIII. PUBLICATIONS

Supreme Court allows Arroyo to travel8

Court order is effective right away

By: Marlon Ramos - Reporter / @MRamosINQ
Philippine Daily Inquirer / 02:08 AM November 16, 2011

Voting 8-5, the Supreme Court on Tuesday flashed the green

light on the plan of former President and now Pampanga Representative
Gloria Macapagal-Arroyo and her husband, Jose Miguel Mike
Arroyo, to leave the country purportedly to seek treatment abroad for
her bone ailment.

Jose Midas Marquez, the Supreme Court administrator and

spokesperson, said the Arroyos were able to show that they are entitled
to the relief prayed for in their separate petitions for certiorari and
prohibition.

20
 Marquez also said the temporary restraining order (TRO) issued
by the high court was immediately executory and of indefinite duration.

The continuance of their inclusion in the watch-list order might

work as injustice to them, Marquez said at a news conference. He said
the TRO was a mere provisional remedy and does not say if one is
guilty or if one should be acquitted.

This is just a provisional remedy given by the court for the

party seeking that remedy, he said. Its consistent with the
constitutional provision on the presumption of innocence You must
take note that [the Arroyos] are not yet accused.

The high court cited the constitutional provision on the

presumption of innocence in granting the former first couples petition
for a TRO on their inclusion in the immigration bureaus watch list.
Justice Secretary Leila de Lima ordered the Arroyo couple put on the
watch list on October 28.

___________________________

8 Readmore:http://newsinfo.inquirer.net/94265/sc-allows-
arroyo-to-travel-abroad
%e2%80%94official#ixzz4b6MfOnKC

Only on Monday, the joint panel of the Department of Justice

and Commission on Elections submitted for resolution the results of
its inquiry into the two electoral sabotage cases filed against the
couple and 38 other persons in connection with the alleged election
fraud in Mindanao in 2007.

In allowing the Arroyo couple to travel abroad, the full court set
three conditions which they are obliged to satisfy, Marquez said.

21
 He said these conditions were the payment of a P2-million cash
bond, the appointment of a legal representative for both Arroyo and
her husband, and their personal appearance or call at the Philippine
Embassy or consular office in the country they were to visit.

The appointment of a legal representative is to ensure that both

[Mike Arroyo] and the former President would receive all the
subpoenas and other documents [needed] for the legal processes,
Marquez said.

The government may file a manifestation with the high court

should the Arroyos violate these conditions, he said. Marquez said that
by issuing the injunctive order, the high court indefinitely voided
the implementation of DOJ Circular No. 41 which authorized De
Lima to put anyone on the immigration bureaus watch list and issue a
hold-departure order.

How they voted

But the TRO only involves the Arroyo couple, being the
petitioners, he said, noting that there were other persons included by

The political differences among the 15 members of the high

court were evident in the way they voted on the Arroyo petition, a
senior court official told the Philippine Daily Inquirer.

Chief Justice Renato Corona and the seven other magistrates

who voted to issue the TROAssociate Justices Presbitero Velasco
Jr., Arturo Brion, Diosdado Peralta, Lucas Bersamin, Roberto Abad,
Martin Villarama Jr. and Jose Perezwere all appointed by Arroyo
during her nine-year presidency.

Accused of being Arroyos midnight appointee, Corona once

served as her chief of staff and spokesperson. Of the five dissenters,
three are appointees of President AquinoAssociate Justices Ma.
Lourdes Sereno, Bienvenido Reyes and Estela Perlas-Bernabe. Senior

22
Associate Justice Antonio Carpio and Associate Justice Jose Mendoza
are the other dissenters.

Scheduled oral arguments

The five justices who voted against the Arroyo petition wanted
the high court to conduct a hearing on the case before issuing a
decision, according to Marquez. He said the tribunal scheduled oral
arguments on the Arroyos petition on November 22. Marquez said the
court had also ordered the Arroyos and the DOJ through the Office of
the Solicitor General to file their respective comments within three
days. Marquez also disclosed that the high courts regular en banc
session on Tuesday lasted unusually longer.

There was a prolonged discussion on this particular item

because of the arguments and counterarguments, he said.

Asked if the justices included in their discussions the fact that

the countries which the Arroyos were planning to visit had no
extradition treaty with the Philippines, he said: I think thats going
too far.

INQUIRER file photo

I dont know if they went to that extent.

Appeal allowed

23
 Marquez said that while the lifting of the travel ban on the
Arroyos was immediately executory, he said the Office of the Solicitor
General could still appeal for a reversal of the order.

In the event that the justice department filed a case against the
Arroyos in the lower courts, the government must inform the tribunal
that such a formal complaint had been filed, he said.

Marquez said the TRO would not cover a hold-departure order

which the lower court might issue on the couple.

Originally posted: 1:21 pm | Tuesday, November 15th,

2011

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