EN BANC

 

 

          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:

 

                                                                             December 13, 2011       

x ---------------------------------------------------------------------------------------- x

 

 

SEPARATE OPINION

 

 

VELASCO, JR., J.:

 

 

          This 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. In its relevant part,  the November 15, 2011 Resolution  provided as follows:

 

          “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

 

(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 x x x.

 

x x x x

 

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)

 

 

          The above Resolution was followed by the related November 18, 2011 and November 22, 2011 Resolutions, pertinently reading:

 

           November 18, 2011 Resolution

 

“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 NON-EXTENDIBLE period of ten (10) days from notice hereof, why she should not be disciplinary 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.”

 

          November 22, 2011 Resolution

 

 

“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.

 

The Court further Resolved to

 

(a)          REQUIRE the petitioners to COMMENT, within ten (10) days from today, on the Urgent Manifestation with Motion to Lift Temporary Restraining Order dated November 18, 2011 filed by the Office of the Solicitor General (OSG) for public respondents [x x x];

 

(b)           NOTE the Supplemental Compliance dated November 18, 2011 filed by Atty. Ferdinand S. Topacio, submitting the Special Powers of Attorney from Mrs. Gloria Macapagal Arroyo and Mr. Jose Miguel Arroyo pursuant to the resolution dated November l8, 20ll;

 

(c)                NOTE the aforesaid Special Powers of Attorney authorizing him, among others, to receive summons, subpoenas, orders and other legal processes, and to submit documentary evidence.”

 

 

          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.

 

 

 

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)

 

 

          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 Court’s 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 Sereno’s 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 Sereno’s dissent may constitute a breach of Sec. 2, Rule 10 of the IRSC which reads:

 

          Sec. 2.  Confidentiality of court sessions.—Court sessions are executive in character, with only the Members of the Court present.  Court deliberations are confidential and shall not be disclosed to outside parties, except as may be provided herein or as authorized by the Court.

 

            The Chief Justice or the Division Chairperson shall record the action or actions taken in each case for transmittal to the Clerk of Court or Division Clerk of Court after each session.  The notes of the Chief Justice and the Division Chairperson, which the Clerk of Court and the Division Clerks of Court must treat with strict confidentiality, shall be the bases of the minutes of the sessions.”

 

 

          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:

 

          1.         “At this morning’s 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 7–6[1] finding that there was no compliance with the second condition of the TRO.

 

The third voting proceeded from the result of the second voting – whether, considering that the Court found that there was a failure to comply with a condition imposed by the earlier resolution, the Court should explicitly state that the TRO was thereby suspended in the meantime pending compliance with Condition Number 2. The Court, by a vote of 7-6, decided there was no need to explicitly state the legal effect on the TRO of the noncompliance by petitioners with Condition Number 2 of the earlier Resolution.

 

The fourth vote that was taken was on whether the Court would direct public respondents to show cause why they should not be held in contempt for failure to comply with the TRO and to comply therewith. The vote was unanimous.

 

The fifth vote was on whether public respondent DOJ Secretary should be ordered to also show cause why she should not be held in contempt for showing disrespect for the Court. The voting on this was 9-4.

 

The sixth voting was on whether to reset the schedule of the oral arguments.  This was unanimously denied.”[2]

 

          2.         “The Court, motu proprio, even without the motion from petitioner’s 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 minority’s proposition that a resolution be issued including a phrase that the TRO is suspended pending compliance with the second condition of the 15 November 2011 Resolution. The majority argued that such a clarification is unnecessary, because it is clear that the TRO is conditional, and cannot be made use of until compliance has been done. It was therefore the sense of the majority that, as an offshoot of the winning vote that there was failure by petitioners to comply with Condition Number 2, the TRO is implicitly deemed suspended until there is compliance with such condition. Everyone believed that it would be clear to all that a conditional TRO is what it is, conditional.”[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]

 

          On the other hand, the unpromulgated dissenting opinion of Justice Sereno contained the following confidential matters:

          1.         “To recall, my Dissenting Opinion of 18 November 2011 consisted of two parts: (1) a narration of the voting that took place in the morning; and (2) the reason why my Dissent to the Decision of the majority to grant the temporary restraining order (TRO) in favor of petitioners continues.”[6]

 

            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.

 

          The letter reads:

 

                                                                                                24 November 2011

 

            The CHIEF JUSTICE

            Supreme Court

 

            May I suggest that the issuance of the attached Resolution dated 22 November 2011, which is supposed to clarify the Resolution dated 18 November  2011, be held in abeyance until the En Banc has a chance to go over the same. Instead of clarifying the Resolution dated 18 November 2011, the attached Resolution compounds the error in the Resolution dated 18 November 2011. (Underlining supplied)

           

You will recall that during the En Banc meeting last 18 November 2011,[7] the En Banc, after a long discussion, voted on the following issues:

1.      That petitioners did not comply with condition (ii) for the issuance of the TRO (voting was 7-6 with Carpio, Abad, Villarama, Mendoza, Sereno, Reyes and Bernabe as the majority);

2.      That there is no need to state in the Resolution that the TRO is suspended until petitioners comply with condition (ii), that is, petitioners will simply be directed to comply with condition (ii) for the issuance of the TRO (voting was 7-6, with Corona, Velasco, Brion, Peralta, Bersamin, Abad, and Perez as the majority). This vote was taken after Justice Abad stated that since condition (ii) for the issuance of the TRO was not complied with, there was no need to state that the TRO is suspended since it is “common sense” that the TRO cannot take effect unless all the conditions are satisfied. I had earlier proposed that the Court recall the TRO for non-compliance of condition (ii) but Justice Abad’s response was that it need not be recalled because its effectivity is deemed suspended pending compliance with condition (ii). After all, Justice Abad said, it will take only 10 minutes for the amended Special Power of Attorney to be submitted by Atty. Topacio.

 

However, the Resolution dated 18 November 2011 did not reflect at all item 1. The Resolution merely stated that petitioners are directed to comply with condition (ii) for the issuance of the TRO, which correctly reflects item 2. Thus, in the En Banc meeting last 22 November 2011, I suggested that the En Banc clarify the Resolution dated 15 November 2011 to reflect item 1 above. The En Banc agreed, and no one objected. Justice Velasco was designated to draft the clarificatory Resolution.

 

x x x x”[8]

 

 

          Justice Carpio’s confidential letter aforementioned became part of the discussion during the En Banc session on November 29, 2011 which ought not to be divulged to the public.

 

          3.         “The letter of Justice Carpio was taken up on the morning of 29 November 2011.  While Justice Roberto A. Abad had argued on 18 November 2011 that the suspensive effect of non-compliance with condition (ii) need no longer be stated, as it is ‘common sense,’ this time he voted unequivocably that despite non-compliance with condition (ii), the TRO is nevertheless not suspended.”[9]

 

            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 group’s vote, which now has the effect of reversing their earlier ruling.  This is not strange, as any clarification of an earlier vote can result in a very substantive revision of that earlier vote.  I requested two (2) days to write my Dissent.”[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]

 

 

          Justice Sereno’s unpromulgated dissenting opinion appears to me as a clear breach of Sec. 2, Rule 10 of the IRSC, which pronounces, in an unequivocal manner, that “Court deliberations are confidential and shall not be disclosed to outside parties, except as may be provided herein (IRSC) or as authorized by the Court.”  The aforesaid excerpts from the promulgated November 18, 2011 Dissenting Opinion and the unpromulgated Dissenting Opinion of Justice Sereno are confidential matters taken up during the November 18, 2011 and November 29, 2011 En Banc sessions.  They cannot be incorporated in an opinion of a member of the Court as this will be tantamount to a proscribed disclosure to outside parties even if contained in an opinion.  Justice Sereno has not shown that such disclosure is allowed by any rule of the IRSC or authorized by the Court.

 

          More importantly, it is the Chief Justice’s 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 TRO authorized by the November l5, 20ll Resolution is immediately executory upon compliance with the posting of the P2M bond.

 

          The November 15, 2011 Resolution is clear—“The 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;

 

ii.           the appointment of a legal representative who will receive subpoena, orders and other legal processes during petitioners’ absence also within 5 days from notice; and

 

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 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) 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.

 

                               

 

 

PRESBITERO J. VELASCO, JR.

                                                                                   Associate Justice                 



[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.