Professional Documents
Culture Documents
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)
Promulgated:
SEPARATE OPINION
x x x 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 the Court Resolved to
The above Resolution was followed by the related November 18, 2011 and
November 22, 2011 Resolutions, pertinently reading:
On November 18, 2011, the Court, by a vote of 7-6, found that there was
no sufficient compliance with the second condition of the Temporary Restraining
Order issued on November 15, 2011. However, by a vote of 7-6, the Court ruled
that the TRO was not suspended pending compliance with the second condition.
Thus, the Court resolved to CLARIFY that the TRO was not suspended even
with the finding that there was no full compliance with the conditions of the TRO.
In its En Banc session of November 29, 2011, the Court revoted on the issue of
whether or not the TRO was suspended pending compliance by the petitioners of
condition (ii) on the requirement to appoint their legal representative. This issue
was no longer reflected in the adverted November 22, 2011 Resolution.
When, as earlier indicated, the En Banc Court conducted a revote on the question
bearing on the suspension of the TRO pending compliance with the appointment of
petitioners legal representative, a majority of 7 members categorically voted that
the TRO was not suspended. The revote, to stress, was held to clarify the
correctness of the directives contained in the Courts November 22, 2011
Resolution on the same issue.
After the vote, Justice Sereno, when asked when she would submit her dissenting
opinion thereon, committed to do so on December 1, 2011, a self-imposed
deadline. As it turned out, her opinion was belatedly filed only on December 2,
2011 (a Friday) at 4 p.m. She did not even circulated a letter asking for an
extension of time to submit her opinion. Her late submission effectively prevented
me from responding to her opinion since I was already booked to leave
for Jakarta on December 4, 2011 to attend the ASEAN Chief Justices Roundtable
on Environment. Accordingly, I requested Atty. Enriqueta E. Vidal to hold in
abeyance the promulgation of Justice Serenos opinion so that the matter of the
promulgation could be discussed in the December 6, 2011 En Banc session. I could
have had filed a separate opinion on her dissent had she filed it on December 1,
2011. For then, I would have the rest of December 1 and the whole day of
December 2, 2011 to prepare and submit one.
There is yet another reason why I felt the dissent should not be promulgated until
the validity thereof is discussed by the En Banc. In my view, the disclosures made
in Justice Serenos dissent may constitute a breach of Sec. 2, Rule 10 of the IRSC
which reads:
The Chief Justice or the Division Chairperson shall record the action or actions
taken in each case for transmittal to the Clerk of Court or Division Clerk of Court
after each session. The notes of the Chief Justice and the Division Chairperson,
which the Clerk of Court and the Division Clerks of Court must treat with strict
confidentiality, shall be the bases of the minutes of the sessions.
The following confidential matters, discussed during the November 18, 2011
session, are embodied in the Dissenting Opinion of Justice Sereno promulgated on
the same date, to wit:
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:
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 voting whether,
considering that the Court found that there was a failure to comply with a
condition imposed by the earlier resolution, the Court should explicitly state that
the TRO was thereby suspended in the meantime pending compliance with
Condition Number 2. The Court, by a vote of 7-6, decided there was no need to
explicitly state the legal effect on the TRO of the noncompliance by petitioners
with Condition Number 2 of the earlier Resolution.
The fourth vote that was taken was on whether the Court would direct
public respondents to show cause why they should not be held in contempt for
failure to comply with the TRO and to comply therewith. The vote was
unanimous.
The fifth vote was on whether public respondent DOJ Secretary should be
ordered to also show cause why she should not be held in contempt for showing
disrespect for the Court. The voting on this was 9-4.
The sixth voting was on whether to reset the schedule of the oral
arguments. This was unanimously denied.[2]
2. 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.[3]
3. 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.[4]
4. Contrary to this interpretation, as stated, it was the understanding of a majority
that the TRO is suspended pending compliance with our earlier Resolution.[5]
2. What took place in the En Banc morning sessions of the 15th, 18th, and 22nd of
November 2011 has been placed on record by Justice Antonio T. Carpio in a letter
to Chief Justice Renato C. Corona and circulated to all the members of the Court
on the morning of 24 November 2011.
24 November 2011
May I suggest that the issuance of the attached Resolution dated 22 November
2011, which is supposed to clarify the Resolution dated 18 November 2011, be
held in abeyance until the En Banc has a chance to go over the same. Instead of
clarifying the Resolution dated 18 November 2011, the attached Resolution
compounds the error in the Resolution dated 18 November 2011. (Underlining
supplied)
You will recall that during the En Banc meeting last 18 November
[7]
2011, the En Banc, after a long discussion, voted on the following issues:
1. That petitioners did not comply with condition (ii) for the
issuance of the TRO (voting was 7-6 with Carpio, Abad,
Villarama, Mendoza, Sereno, Reyes and Bernabe as the
majority);
However, the Resolution dated 18 November 2011 did not reflect at all
item 1. The Resolution merely stated that petitioners are directed to comply with
condition (ii) for the issuance of the TRO, which correctly reflects item 2. Thus,
in the En Banc meeting last 22 November 2011, I suggested that the En
Banc clarify the Resolution dated 15 November 2011 to reflect item 1 above.
The En Banc agreed, and no one objected. Justice Velasco was designated to draft
the clarificatory Resolution.
x x x x[8]
4. The voting taken on 29 November 2011 was of the same composition as that of
the 18 November 2011 voting. Justices Carpio, Abad, Martin S. Villarama, Jr.,
Jose C. Mendoza, Maria Lourdes P. A. Sereno, Bienvenido L. Reyes and Estela
M. Perlas-Bernabe as the first majority group maintain that there was no
compliance with condition (ii). Then the majority grouping shifted when Justice
Abad as he did on 18 November joined Chief Justice Corona and Justices
Presbitero J. Velasco, Jr., Arturo D. Brion, Diosdado M. Peralta, Lucas P.
Bersamin, and Jose P. Perez to comprise the majority. This time, however, the
majority categorically voted to declare the non-suspension of the TRO despite
non-compliance with condition (ii). There was therefore, in every sense of the
word, a revision of the second majority groups vote, which now has the effect of
reversing their earlier ruling. This is not strange, as any clarification of an earlier
vote can result in a very substantive revision of that earlier vote. I requested two
(2) days to write my Dissent.[10]
5. When the resolution came out, it was not, with all due respect, a fully accurate
reflection of what took place; thus, the sentences in my Dissent advising the
acting chief of the PIO to desist from interpreting our actions, the letter of Justice
Carpio, and the need for a re-voting by the En Banc on 29 November 2011. This
incident demonstrates an existing gap between the actual discussion and the
voting results that take place in an En Banc session and their reflection in written
form via an unsigned resolution.[11]
More importantly, it is the Chief Justices task under Sec. 2, Rule 10 of the IRSC to
record the action or actions taken in each case. The notes of the Chief Justice shall
be the bases of the minutes of the session which, in turn, resolutions shall be
predicated upon. Nowhere in the Rules does it say that a member can incorporate
the deliberations in his/her opinion. This caveat is to obviate the possibility of
conflicting statements of facts that will likely arise especially if the member takes a
contrary position to that of the majority.Justice Sereno, by stating what are
allegedly the result of the deliberations of the En Banc and the votation on cases or
incidents, appears to encroach into the functions of the Chief Justice. This should
not be countenanced as once a vote is taken on an issue, the majority view then
becomes that of the Court. To say that such was not the case, as is the position of J.
Sereno, would sow doubt and suspicion on the veracity of the resolutions of the en
banc as authenticated by the Clerk of Court. Else the stability of judicial decisions
and resolutions is compromised.
Accordingly, I recommend that the portions of the unpromulgated
Dissenting Opinion of Justice Sereno delving on what under the Rules are
considered confidential be expunged for being violative of Sec. 2, Rule 10 of the
IRSC. In the same token, confidential matters contained in this separate opinion
should likewise be expunged in the event the Court decides to adopt the
recommendation herein made. It should be made clear, however, that what
impelled me to include matters in this opinion that only members of the Court
ought to know is to show that, should the dissenting opinion of Justice Sereno be
promulgated in its present form, it in itself is a departure from the IRSC.
The November 15, 2011 Resolution is clearThe temporary restraining order shall
be immediately executory. (Last paragraph, p. 3) This directive is qualified by item
(c) of the said Resolution which prescribed three (3) conditions:
i. the posting of the P2M bond within 5 days from notice otherwise the
TRO will be automatically lifted;
iii. the petitioners shall inform said embassy of their whereabouts at all
times.
It is my 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 2 nd 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) 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.
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. I
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.
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.
[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.
[2]
Dissenting Opinion of Justice Sereno promulgated on November 18, 2011, pp. 1-2.
[3]
Id. at 6.
[4]
Id. at 7.
[5]
Id. at 8.
[6]
Unpromulgated Dissenting Opinion of Justice Sereno, p. 1.
[7]
As amended from 15 November to 18 November by Justice Carpio in his amendatory letter also dated 24
November 2011.
[8]
Supra note 6, at 2-3.
[9]
Id. at 4.
[10]
Id. at 5.
[11]
Id.