GOVPH (/)

Gloria Macapagal-Arroyo v. de Lima et al., G.R.

No. 199034/Jose Miguel Arroyo v. de Lima et al.,
G.R. No. 199046
November 15, 2011 (http://www.o cialgazette.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/)

Republic of the Philippines

Supreme Court
Manila

EN BANC

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

-versus-

Hon. LEILA M. DE LIMA, in her

capacity as Secretary of the Department

of Justice and RICARDO A. DAVID,

JR., in his capacity as Commissioner of

the Bureau of Immigration,

Respondents.

X- – – – – – – – – – – – – – – – – – – – – – – -X
JOSE MIGUEL T. ARROYO,Petitioner, G.R. No. 199046

-versus-
TEMPORARY RESTRAINING

Hon. LEILA M. DE LIMA, in her

ORDER

capacity as Secretary, Department of

Justice, RICARDO V. PARAS III, in

his capacity as Chief State Counsel,

Department of Justice and RICARDO

A. DAVID, JR., in his capacity as

Commissioner, Bureau of Immigration,

Respondents.

X- – – – – – – – – – – – – – – – – – – – – – – -X
 TO: Hon. LEILA M. DE LIMASecretary  

RICARDO V. PARAS III

Chief State Counsel

Department of Justice (DOJ)

Padre Faura St., Ermita, Manila

RICARDO A. DAVID, JR.

Commissioner

Bureau of Immigration (BOI)

2nd Floor BOI Building

Magallanes Drive, Intramuros, Manila

GREETINGS:

WHEREAS, the Supreme Court, on November 15, 2011, adopted a resolution in the above-entitled cases, to
wit:

G.R. No. 199034 (Gloria Macapagal-Arroyo vs. Hon. Leila M. De Lima, in her capacity as Secretary of
the Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of
Immigration) and G.R. No. 199046 (Jose Miguel T. Arroyo vs. Hon. Leila M. de Lima, in her capacity
as Secretary, Department of Justice, Ricardo V. Paras III, in his capacity as Chief State Counsel,
Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner, Bureau of
Immigration).- Acting on the Special Civil Actions for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction, and mindful of the
underlying issues in the 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 ve (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 ve (5) days from
notice hereof; and

(iii) If there is a Philippine embassy or consulate in the place where they will be traveling, the
petitioners shall inform said embassy or consulate by personal appearance or by phone of
their whereabouts at all times; and

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

The Court further Resolved to NOTE the

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

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

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

(d) Comment/Opposition (on/to the Very Urgent Manifestation and Motion dated November 9,
2011) dated November 14, 2011 led by counsel for petitioner in G.R. No. 199034;
 (e) Very Urgent Manifestation and Motion dated November 9, 2011 led by the OSG for
respondents Hon. Leila M. de Lima, in her capacity as Secretary of the Department of Justice,
Ricardo V. Paras III, in his capacity as Chief State Counsel and Ricardo A. David, Jr., in his capacity
as Commissioner of the Bureau of Immigration in G.R. No. 199046; and

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

The temporary restraining order shall be immediately executory. Justices Antonio T. Carpio and
Bienvenido L. Reyes have reserved the right to submit their dissenting opinions. Leonardo-De Castro,
J., on o cial business. Del Castillo, J., on o cial leave. (adv156 & 157)

NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You,
Respondents, your agents, representatives, or persons acting in your place or stead, are hereby ENJOINED
from enforcing or implementing DOJ Department Circular No. 41 and Watchlist Order Nos. ASM-11-237
dated August 9, 2011, 2011-422 dated September 6, 2011 and 2011-573 dated October 27, 2011.

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

ENRIQUETA E. VIDAL
Clerk of Court

By:

FELIPA B. ANAMA
Deputy Clerk of Court En Banc

———————————————————————————————————————–

EN BANC

G.R. No. 199034 — GLORIA MACAPAGAL-ARROYO, Petitioner, v. HON. LEILA M. DE LIMA, in her capacity
as SECRETARY OF JUSTICE, ET AL., Respondents.

G.R. No. 199046 — JOSE MIGUEL T. ARROYO, Petitioner, v. SECRETARY LEILA M. DE LIMA, in her
capacity as SECRETARY OF JUSTICE, ET AL., Respondents.

Promulgated:

November 15, 2011

x—————————————————————————————–x

DISSENTING OPINION

CARPIO, J.:

I vote to defer action on petitioners’ prayer for a temporary restraining order until after the Government
les its Comment and after oral arguments are heard on the matter. This should take not more than ve
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 o cials and employees. For
example, O ce of the Court Administrator Circular No. 49-2003(B) requires judges and court personnel
“to secure a travel authority from the O ce 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 led before the courts while petitioners are abroad. In fairness to the Government
which is tasked with the prosecution of crimes, this Court must hear rst the Government in oral
argument before deciding on the temporary restraining order which if issued could frustrate the
Government’s 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 le their Comments on or before 21 November 2011, (3) hold oral arguments on 22
November 2011 at 2 o’clock in the afternoon, and (4) decide whether to issue a temporary restraining
order immediately upon the conclusion of the oral arguments.

ANTONIO T. CARPIO
Associate Justice

———————————————————————————————————————–

EN BANC
G.R. No. 199034 – GLORIA MACAPAGAL – ARROYO, Petitioner, v. HON. LEILA M. DE LIMA, in her
capacity as SECRETARY OF JUSTICE, ET AL., Respondents.

G.R. No. 199046 – JOSE MIGUEL T. ARROYO, Petitioner, v. SECRETARY LEILA M. DE LIMA, in her
capacity as SECRETARY OF JUSTICE, ET AL., Respondents.

Promulgated:

November 15, 2011

x—————————————————————————————–x

DISSENTING OPINION

REYES, J.:

I DISAGREE with the majority’s decision to issue a Temporary Restraining Order (TRO) against the
enforcement of the Department of Justice’s (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. In Boncodin v. National Power
Corporation,5 this Court reversed the trial court’s issuance of an injunctive writ that caused the burden of
proof to shift from the claimant to the defendant:

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

Similarly, in Valley Trading Co., Inc. v. Court of First Instance of Isabela, Branch II, et al.7, this Court
observed the same principle and emphatically stated that an injunctive relief will not issue if the
applicant’s allegations fall short of overcoming the presumption of validity in favor of the law:
 Equally pertinent is the rule that courts should avoid issuing a writ of preliminary injunction which, in
effect, would dispose of the main case without trial. In the present case, it is evident that the only
ground relied upon for injunction relief is the alleged patent nullity of the ordinance. If the court
should issue the desired writ, premised on that sole justi cation therefor of [the] petitioner, it would be
a virtual acceptance of his claim that the imposition is patently invalid or, at the very least, that the
ordinance is of doubtful validity. There would, in effect, be a prejudgment of the main case and a
reversal of the rule on the burden of proof since it would assume the proposition which the petitioner
is inceptively duty bound to prove.

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

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

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

Consistent with the foregoing, the assailed Department Circular No. 41 and the Watchlist Orders issued
thereunder enjoy such presumption of constitutionality and regularity; the Watchlist Orders were in
accordance with the provisions of Department Circular No. 41 which, itself, was issued in the
performance of the DOJ’s 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 con nes 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 petitioner’s claims against their
validity, which, at this stage of the proceedings, are mere allegations and no other.

I would likewise call the attention of the majority to the August 23, 2011 Order issued by this Court in G.R.
No. 197854 entitled Jose Miguel T. Arroyo v. Sec. Leila M. De Lima, etc., et al. where Jose Miguel Arroyo’s
(MR. ARROYO) application for a TRO against Department Circular No. 41 and Watchlist Order No. 2011-
410 issued by the DOJ on August 4, 2011. Therein, the Court’s primordial consideration in issuing the TRO
was the fact that “the petitioner is not an accused in a criminal case, nor is a respondent in any
preliminary investigation, and is not subject of any warrant of arrest in the on-going Senate investigation
on the purchase by the Philippine National Police of helicopters.” This, to me, is an unequivocal testimony
to the presumption of validity accorded to Department Circular No. 41 and the Watchlist Order issued
pursuant to its provisions, considering that the TRO was issued not because of the supposed
infringement on Mr. Arroyo’s right to travel but because of the DOJ’s clear deviation from the provisions of
Department Circular No. 41. Under Section 2 of the Circular, it is only in the following instances that a
Watchlist Order can be issued against any person: (a) there is a criminal case pending against him before
any court within this jurisdiction; (b) there is a criminal case against him pending preliminary investigation,
petition for review or motion for reconsideration before the DOJ or any of its prosecution o ces; 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 o ces created by the O ce 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. Arroyo’s right to travel per se is
insu cient to overcome the presumption of constitutionality against the Circular such that what moved
the Court to rule in Mr. Arroyo’s favor was the dubiety of whether an investigation conducted by the Senate
may be a ground to issue a Watchlist Order.

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

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

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

There is nothing in the medical certi cate, dated October 1, 2011 issued by Dr. Juliet Gope-Cervantes and
dated October 24, 2011 issued by Dr. Mario R. Ver, which would indicate that GMA would suffer irreparable
injury in the event she is disallowed from seeking medical treatment abroad. Thus:

Ms. Macapagal-Arroyo has metabolic bone disease and osteoporosis due to Hypoparathyroidism
with electrolyte imbalance and Vitamin D de ciency. The Minerva Brace should remain in place for at
least three months, and barring any complications she should be fully recovered from her spine
surgery in six to eight months. Her metabolic bone disease needs lifetime maintenance treatment.12
xxx

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

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

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

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

From the foregoing, it appears that the medical attention being received by GMA is adequate as she is out
of danger and her condition is continuously improving. Her claim of “urgency” and life-threatening
conditions is, at the very least, debatable and this should have militated against the issuance of a TRO.
Prudence and to avoid prejudging the case on its merits, giving the Government an opportunity to be
heard is de nitely 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 majority’s mind when they decided to issue the TRO, there would have
been no basis to issue a TRO in Mr. Arroyo’s favor as there is nothing in his Petition where it was alleged
that his right to life was being threatened or endangered. In his earlier Petition, Mr. Arroyo was invoking for
his right to travel in his earlier Petition. It is no different in this present Petition; only that, the Watchlist
Order he is now attacking as unconstitutional is based on his being preliminarily investigated by the DOJ-
COMELEC Fact Finding Committee. However, the issuance of a Watchlist Order on this ground is allowed
under the Circular; thus, the basis for the Court’s issuance of a TRO in Mr. Arroyo’s rst 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. Arroyo’s rst Petition, it is certainly confounding as to why it is different in this case.

Finally, in Ermita v. Hon. Jenny Lind R. Aldecoa-Delorina, et al.,15 this Court, emphatically stated that the
judicial power to enjoin the implementation of an o cial issuance, which enjoys the presumption of
validity, must be wielded and exercised with extreme caution, thus:

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

In Social Security Commission v. Judge Bayona, we ruled that a law is presumed constitutional
until otherwise declared by judicial interpretation. The suspension of the operation of the law is a
matter of extreme delicacy because it is an interference with the o cial acts not only of the
duly elected representatives of the people but also of the highest magistrate of the land.

xxx

The possible unconstitutionality of a statute, on its face, does not of itself justify an injunction
against good faith attempts to enforce it, unless there is a showing of bad faith, harassment, or
any other unusual circumstance that would call for equitable relief. The “on its face” invalidation
of statutes has been described as “manifestly strong medicine,” to be employed “sparingly and
only as a last resort,” and is generally disfavored.

I believe that this Court should have exercised the same circumspection and caution. It may be argued
that the constitutionality of the assailed issuances had not been prematurely determined by the majority’s
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 le
a comment on the petitions, and hear them out in oral argument, instead of issuing a TRO ex parte.

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

BIENVENIDO L. REYES
Associate Justice

Notes:

1 Rollo of G.R. No. 199034, pp. 59-61.

2 Id. at pp. 45-46.

3 Id. at pp. 47-48.

4 Id. at pp. 49-58.

5 G.R. No. 162716, September 27, 2006, 503 SCRA 611.

6 Id. at p. 629.

7 G.R. No. 49529, March 31, 1989, 171 SCRA 501.

8 Id. at pp. 507-508.

9 G.R. No. 166715, August 14, 2008, 562 SCRA 251.

10 Id. at pp. 288-289.

11 Marcelo G. Ganaden, et al. v. Hon. O ce of the Ombudsman, et al., G.R. Nos. 169359-61, June 1,

2011.

12 Rollo, p. 67.

13 Id. at p. 69.

14 Id. at p. 86.

15 G.R. No. 177130, June 7, 2011.

———————————————————————————————————————-

G.R. No. 199034 –GLORIA MACAPAGAL-ARROYO v. HON. LEILAM. DE LIMA, in her capacity as
SECRETARY OF THE DEPARTMENT OF JUSTICE, and RICARDO A. DAVID, JR., in his capacity as
COMMISSIONER OF THE BUREAU OF IMMIGRATION

G.R. No. 199046 – JOSE MIGUEL T. ARROYO v. SEC. LEILA M. DE LIMA, in her capacity as SECRETARY,
DEPARTMENT OF JUSTICE, RICARDO V. PARAS III, in his capacity as CHIEF STATE COUNSEL, and
RICARDO A. DAVID, JR., in his capacity as COMMISSIONER, BUREAU OF IMMIGRATION

Promulgated:
 November 15, 2011

x—————————————————————————————–x

DISSENTING OPINION

SERENO, J.:

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

A. The Right of the State to be Heard

versus the Right Claimed by
Petitioners

The Rules of Court and jurisprudence prescribe very stringent requirements before a TRO can be issued.
Among these is the requirement that the TRO “may be granted only when: (a) the application or
proceeding is veri ed, and shows facts entitling the applicant to the relief demanded…” (Rule 58, Section
4)

A petition that contains a false veri cation can have many consequences among which are: (a) the
Petition can be dismissed or denied, (b) the person making the false veri cation can be punished for
contempt of court, and (c) the person making the false veri cation can be punished for perjury.

So strong is the requirement of truthful allegations in pleadings led before the Court that many adverse
inferences and disciplinary measures can be imposed against a person lying before the Court. This
requirement of truthfullness is especially important when a provisional remedy, and more so when the
remedy is sought to be granted ex-parte, is under consideration by the Court. When on its face, the
material averments of a pleading contain self-contradictions, the least that the Court should do, is
consider the other side of the claim.
This is the situation with the Petition of former President Gloria Macapagal-Arroyo. It appears that she
has given inconsistent, and probably untruthful statements before this Court.

In the instant Petition, she claims that:

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

The inability of petitioner GMA to leave for abroad to alleviate, or at least, prevent the aggravation of
her hypoparathyroidism and metabolic bone disorder has given rise to the danger that the said
conditions a icting petitioner GMA may become permanent and incurable. (par. 5.02 [d], p. 35 of the
Petition)

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

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

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

On July 29th, she underwent Anterior Cervical Decompression (Disectomy/Foraminotomy) and Fusion
(ACDF) C3 to C7 with titanium locked plating/peek cages and demineralized bone matrix (DBM),
which was performed by Dr. Mario R. Ver, an orthopedic spine surgeon.

On August 9th she was readmitted to St. Luke’s because of implant failure. There was dislodgement
of the titanium locked plate/screws and peek cages, secondary to adult idiopathic latent
hypoparathyroidism and concomitant post-operative prevertebral infection.
 On August 10th she underwent a second surgery by a surgical team headed by Dr. Mario R. Ver to
remove the above-mentioned anterior cervical implants and to put new implants in place. Posterior
instrumented fusion C3 to T2 using lateral mass titanium screws C3 to C6, titanium pedicle screws
C7 to T2, with autologous bone graft from right posterior ilium was performed. A halo vest was
applied in place.

On August 24th she underwent a third surgery, an anterior disectomy C7 to T1, “channel” copectomy
C4 to C7 and fusion C3 to T1 using titanium mesh cage led with autologous bone graft from the left
anterior iliac crest (ICBG) and mixed with DBM. She was discharged ambulatory, with the halo vest in
place, on September 2, 2011.

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

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

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

Barring any complication she should be fully recovered from her cervical spine surgery six to eight
months from the time of [discharge]. Her metabolic bone disease however needs lifetime
maintenance.3

Second, petitioner’s travel itinerary abroad, for which the instant provisional remedy is being sought,
appears not solely for medical reasons as claimed. In the Letter dated 02 November 2011 of Atty.
Anacleto M. Diaz, counsel for petitioner, only three countries were identi ed as part of petitioner’s medical
consultations, namely Singapore (24 October 2011, 31 October 2011 and 08 November 2011), Germany
(17 November 2011) and Spain (14 November 2011).4

However, the travel authority issued by the House of Representatives on 19 October 2011 previously
indicated other countries, speci cally, the United States of America and Italy:
 Respectfully referred to the Honorable Secretary of Foreign Affairs, Manila, hereby amending the
Travel Authority dated September 16, 2011, copy attached, of Honorable Gloria Macapagal-Arroyo to
the United States of America and Germany and to include Singapore, Spain and Italy to seek medical
consultations with specialists, for the period October 22 – December 5, 2011 instead of September
18 – October 11, 2011.. Honorable Macapagal-Arroyo will travel with her spouse, Atty. Jose Miguel T.
Arroyo and to include her Aide-de-Camp, 1Lt. Jane B. Glova and private nurse, Ms. Maria Saharah V.
Casuga.5

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

Indeed, the inconsistencies of petitioner’s travel purpose to these two countries were discussed in the
Order dated 08 November 2011 Department of Justice, where it referred to the earlier travel authority
issued by the House of Representatives.6 The Order reads in part:

1. Second Endorsement dated September 1, 2011 of Speaker Feliciano Belmonte, Jr., to the Secretary
of Foreign Affairs, of the Travel Authority granted to the Applicant to participate in the “Clinton Global
Initiative Meeting”, aside from the medical consultations in New York, USA, and for medical
consultation in Munich, Germany, both from September 28 to October 6, 2011, and to participate in
the Regional Consultation meetings of the International Commission Against Death Penalty in
Geneva, Switzerland on October 10-11, 2011. (p. 3 of the Order)

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

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

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

B. Petitioner Former President Arroyo

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

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

While this 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 quali ed political agency, the acts and issuances of
Agra are acts of the President and herein petitioner herself. As the Court recently ruled:

The President’s act of delegating authority to the Secretary of Justice by virtue of said Memorandum
Circular is well within the purview of the doctrine of quali ed political agency, long been established in
our jurisdiction.

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

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

C. This Court Must Face The Risk Of

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

The court cannot evade the question that is uppermost in the minds of many—is this request for a TRO
driven by petitioners’ desire to evade the investigatory and judicial process regarding their liability for
certain alleged criminal acts? If the risk of ight is high, then this Court must adopt either of the following
approaches: (1) deny the right to travel, or (2) allow travel subject to certain restrictions.
It was suggested by a colleague that, anyway, the State is not powerless to compel the return of
petitioners in case they will seek to evade the jurisdiction of our courts or the service of sentence. It can
request assistance from Interpol, invoke courtesies of comity with other countries, and seek mutual legal
assistance and extradition from countries with which the Philippines has such treaties. The problem with
such a proposition is that the Philippines has not had much success in waging international campaigns to
recover the Marcos ill-gotten wealth or to effect the arrest of many criminal escapees. Operationally, such
processes are very di cult and at times, illusory. Should this Court then lend itself to the possibility of
creating the dilemma the country will face if, indeed, petitioners will evade the jurisdiction of local courts,
by not simply deferring for a week the issuance of the TRO until the State has been heard on the merits?
Obviously, the Court is wrong not to take the path of prudence.

Petitioners are presumed innocent until proven guilty, that is true. This does not mean, however, that the
State should be deprived of the opportunity to be heard on the question of whether it has certain rights
that must be protected vis-à-vis persons under investigation during a preliminary investigation.

It has been held in one case8 that it is not only through court order that the right to travel may be impaired.
In fact, the Supreme Court itself has issued stringent regulations on the right to travel, including the denial
of the travel authority request of employees who may be undergoing preliminary investigation. An
important question thus must be asked: why is the majority not even willing to hear the government
before issuing the TRO, when, in the supervision of judiciary employees, a mere administrative o cer of
the Supreme Court, and not a judicial o cer, may deny the right to travel?

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

In fact, the Chief Justice recently reiterated this policy, in light of the repeated practice of court personnel
of going to foreign countries without obtaining prior permission or belatedly ling their leaves upon their
return.11 Personnel of the lower courts are even required to obtain clearance as to pending criminal and
administrative cases led against them, if any,12 and those who shall leave the country without travel
authority issued by the O ce of the Court Administrator shall be subject to disciplinary action.13 In
several cases, the Court had held administratively liable and disciplined a Clerk of Court,14 Court
Stenographer,15 Stenographic Reporter,16 Deputy Sheriff,17 and a Utility Worker,18 for travelling without
the necessary court authority. That means that the pendency of even an administrative case is su cient
basis to deny the right to travel of court employees. This denial is effected by the withholding of the
necessary endorsements by the Supreme Court’s administrative o cers.

It appears that the Court, by its own administrative actions, has acknowledged the state’s 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
Arroyo’s own documentary submissions however, belie the existence of any threat to such life. It also cites
petitioner’s right to travel as a primordial constitutional right that must be so zealously protected. The
majority is completely bereft, however, of any explanation on why it will protect those rights through a
premature TRO in the face of untruthful statements in the Petitions herein and when its own practice in its
backyard is one of curtailment of judicial employees’ own rights to travel. The only proposition that the
minority has posed in today’s session is that the State rst be heard before any decision to grant a TRO is
reached. Surely, that is fully conformable with the requirements of the Rules of Court before a TRO can be
issued.

Considering there is absolutely no medical emergency that is evidenced by any of the documents
submitted by petitioner Arroyo, the allegations on the matter remain but mere allegations, and do not
satisfy the evidentiary requirements for a TRO than can be issued ex-parte.

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

MARIA LOURDES P. A. SERENO

Associate Justice

Notes:

1 Dissenting were Justices Antonio T. Carpio, Jose C. Mendoza, Maria Lourdes P.A. Sereno, Bienvenido L.
Reyes, Jr., and Estela M. Perlas-Bernabe.

2 Medical Certi cate dated 01 October 2011, Annex “I” of the Petition.
3 Medical Certi cate, Annex “F” of the Petition.

4 Letter dated 02 November 2011, Annex “O” of the Petition.

5 1st Endorsement dated 19 October 2011 of Atty. Artemio A. Adasa, Jr., O cer-in-Charge of the O ce of
the Secretary General of the House of Representatives, Annex “M-2” of the Petition.

6 DOJ Order dated 08 November 2011, attached as Annex “1” of the Very Urgent Manifestation and
Motion dated 09 November 2011.

7 Judge Angeles v. Hon. Manuel Gaite, G.R. No. 176595, 23 March 2011.

8 Silverio v. CA, G.R. No. 94284, 8 April 1991, 195 SCRA 760.

9 “II. To REFER to the Chairmen of the Divisions for their appropriate action or resolution, for and in behalf
of the Court En Banc, administrative matters relating to, or in connection with,: … (h) Foreign travels of
Justices of the Court of Appeals and the Sandiganbayan, Judges of the Court of Tax Appeals and the
Lower Courts, and the o cials and personnel of such courts; and the recall or revocation of the travel
authority granted, as well as any matter arising from such travel authority or its recall or revocation. …” (A.
M. No 99-12-08-SC, as revised, effective 01 May 2003).

10 SC Memorandum Order No. 14-2000 dated 06 November 2000.

11 “NOW, THEREFORE, for consistency and uniformity and to protect the interest of the public service, the
Court reiterates the policy of securing prior permission or authority from the Court for foreign travels of its
o cials and employees even at the travellers’ expense. Application for foreign travel shall be coursed
through and evaluated and recommended for appropriate action by the Chiefs of O ces for Supreme
Court O cials and employees. Applications for leave of absence for travel outside the country without the
required permission or authority shall forthwith be denied.” (Memorandum Order No. 32-11 dated 20
September 2011)

12 OCA Circular No. 49-2003 dated 20 May 2003, signed by then Court Administrator Presbitero J.
Velasco, Jr.

13 Id.
14 Ms. Larizza Paguio-Bacani, the Branch Clerk of Court II of the Municipal Trial Court of Meycauayan,
Bulacan, was found guilty of dishonesty by falsifying her Daily Time Records and leaving the country
without the requisite travel authority, and was ordered suspended from the service for one (1) year,
without pay. (Concerned Employees of the Municipal Trial Court of Meycauayan, Bulacan v. Paguio-Bacani,
A. M. No. P-06-2217 [Formerly, OCA IPI No. 06-2375-P] dated 30 July 2009, 594 SCRA 242)

15 Raquel S. Bautista, Stenographer I of the Municipal Trial Court of Guiguinto, Bulacan, decided to work
overseas, but failed to secure the required clearances for travel abroad because the job offered to her in
Dubai was urgently needed. (Reyes v. Bautista, A. M. No. P-04-1873, 13 January 2005, 448 SCRA 95)

16 Virginia G. Lim, a Stenographic Reporter of the Regional Trial Court of Makati City, Branch 135, was
dismissed from the service, for among others, disregarding the judge’s orders to transcribe the
longpending stenographic notes and choosing instead to go on leave, even when her application for leave
has not been approved by the O ce of the Court Administrator. (Ibay v. Lim, A. M. No. P-99-1309, 11
September 2000, 340 SCRA 107)

17 Victorio M. Acuña, a Deputy Sheriff of the Metropolitan Trial Court of San Juan, was also dismissed
from the service because he had left for Saipan to be a contract worker there, without securing
permission from the Court. (Recio v. Acuña, A. M. No. P-90-452 and P-92-667, dated 07 April 1993, 221
SCRA 70)

18 Rodrigo C. Calacal, a Utility Worker I of the Municipal Trial Court of Alfonso-Lista Aguinaldo, Ifugao, was

reprimanded and warned for having left for Singapore from 15 May 2008 to 06 June 2008, without
securing permission from the O ce of the Court Administrator. (OAS-OCA v. Calacal, A. M. No. P-09-2670,
16 October 2009, 604 SCRA 1)

———————————————————————————————————————

Republic of the Philippines

Supreme Court
Manila

EN BANC

NOTICE

Sirs/Mesdames:
Please take notice that the Court en banc issued a Resolution dated NOVEMBER 18, 2011, which reads as
follows:

“G.R. No. 199034 (Gloria Macapagal-Arroyo vs. Hon. Leila M. De Lima, in her capacity as Secretary of the
Department of Justice and Ricardo A. David, Jr., in his capacity as Commissioner of the Bureau of
Immigration) and G.R. No. 199046 (Jose Miguel T. Arroyo vs. Hon. Leila M. de Lima, in her capacity as
Secretary, Department of Justice, Ricardo V. Paras III, in his capacity as Chief State Counsel, Department
of Justice and Ricardo A. David, Jr., in his capacity as Commissioner, Bureau of Immigration).- On
November 15, 2011, the Court issued a temporary restraining order enjoining Secretary of Justice Leila M.
De Lima, her agents, representatives, or persons acting in her place or stead, from enforcing or
implementing DOJ Department Circular No. 41 and Watchlist Order Nos. ASM-11-237 dated August 9,
2011, 2011-422 dated September 6, 2011 and 2011-573 dated October 27, 2011. To date, it appears that
Secretary De Lima has effectively prevented petitioners Gloria Macapagal-Arroyo and Jose Miguel T.
Arroyo from leaving the country.

Accordingly, on motion of the petitioners, the Court Resolved to require Secretary De Lima to (a) SHOW
CAUSE, within a NONEXTENDIBLE period of ten (10) days from notice hereof, why she should not be
disciplinarily dealt with or held in contempt for failure to comply with the temporary restraining order and
(b) IMMEDIATELY COMPLY with the said temporary restraining order by allowing petitioners to leave the
country.

The Court further Resolved to

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

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

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

(ii) To make and present to the court an application in connection with any proceedings in the
suit;
 (iii) To produce summons or receive documentary evidence;

(iv) To make and le compromise or a confession of judgment and to refer the case to arbitration;

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

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

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

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

(c) DENY the Consolidated Urgent Motion for Reconsideration and/or to Lift Temporary Restraining
Order dated November 16, 2011 led by the O ce of the Solicitor General (OSG) for public
respondents Leila M. De Lima, in her capacity as Secretary of Justice, Ricardo A. David Jr., in his
capacity as Commissioner of the Bureau of Immigration and Ricardo V. Paras III, in his capacity as
Chief State Counsel;

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

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

(f) NOTE, subject to the further commitment under par. (b) above, the Compliance dated November
16, 2011 led by counsel for petitioner in G.R. No. 199046, submitting the following documents in
compliance with the resolution of November 15, 2011:

(i) Annex “A” – A copy of O cial Receipt No. 0030227-SC-EP dated November 15, 2011, showing
their payment of the required bond in the amount of Two Million Pesos;
 (ii) Annex “B” – A copy of the Certi cation dated November 15, 2011 of the Fiscal Management
and Budget O ce, showing the payment of petitioners Jose Miguel T. Arroyo and Gloria
Macapagal-Arroyo of the cash bond of Two Million Pesos; and

(iii) Annexex “C” and “C-1” – A copy of the appointment of Atty. Ferdinand S. Topacio as legal
representative of petitioner Jose Miguel T. Arroyo and former President Gloria Macapagal-Arroyo;

(g) NOTE the Special Power of Attorney dated November 15, 2011 executed by Gloria Macapagal-
Arroyo, appointing Atty. Ferdinand Topacio as her legal representative in compliance with the
resolution of November 15, 2011. She shall commit to the Court that she shall instruct her legal
representative to amend par. (iii) of par. (b) above to state: “to receive summons or documentary
evidence” and forthwith submit this compliance with the Court;

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

(i) NOTE WITHOUT ACTION the aforesaid Memorandum dated November 12, 2011 led by Fr. Aquino;

(j) NOTE the Urgent Motion for Respondents to Cease and Desist from Preventing Petitioner GMA
from Leaving the Country dated November 16, 2011 led by counsel for petitioner Gloria Macapagal-
Arroyo;

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

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

(m) NOTE the Urgent Opposition dated November 18, 2011 led by the OSG for the respondents.

Very truly yours,

ENRIQUETA E. VIDAL
Clerk of Court
———————————————————————————————————————-

EN BANC

G.R. No. 199034 –GLORIA MACAPAGAL-ARROYO v. HON. LEILA M. DE LIMA, in her capacity as
SECRETARY OF THE DEPARTMENT OF JUSTICE, and RICARDO A. DAVID, JR., in his capacity as
COMMISSIONER OF THE BUREAU OF IMMIGRATION

G.R. No. 199046 – JOSE MIGUEL T. ARROYO v. SEC. LEILA M. DE LIMA, in her capacity as SECRETARY,
DEPARTMENT OF JUSTICE, RICARDO V. PARAS III, in his capacity as CHIEF STATE COUNSEL, and
RICARDO A. DAVID, JR., in his capacity as COMMISSIONER, BUREAU OF IMMIGRATION

Promulgated:

November 18, 2011

x—————————————————————————————–x

DISSENTING OPINION

SERENO, J.:

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 rst 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 ve (5) days from notice hereof;
(Emphasis supplied.)

On this matter, the voting was 7–61 nding 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 fth vote was on whether public respondent DOJ Secretary should be ordered to also show cause
why she should not be held in contempt for showing disrespect for the Court. The voting on this was 9-4.

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

A. On the Motion for Reconsideration of the TRO

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

Watch List Orders, Hold Departure Orders, Off-loading for being suspected as attempting to violate foreign
employment laws, criminal laws such as anti-tra cking statutes, requiring travel authorities from all
government employees before they are allowed to y out are part and parcel of the running of our
Republic called the Philippine State.

The majority is indicating, by its issuance of the TRO without hearing the side of government, that it is
giving prima facie validation to petitioners’ proposition that only a strict interpretation of Article 3, Section
6 of the Bill of Rights is allowed. Meaning, the only justi cation for a valid restriction on the right to travel
should be found only in one of the three exceptions provided therein—public safety, national safety or
public health. On the other hand, this Court cannot ignore a basic constitutional precept: the presumption
of validity of o cial actions. Especially when the practice of issuing watch list orders, has been practiced
for decades by the Department of Justice, and many other analogous practices has been observed as
well by many other governmental agencies, including this court, through analogous restrictive practices.
This Court cannot turn to a blind eye what is involved in running a government. OFWs will have to cause to
complain about the restrictions being imposed on them by many government agencies before they can
work abroad. Off-loaded passengers would give legal nightmares to the Bureau of Immigration. It might,
indeed, render impossible the effective administration of justice of our country’s laws. What this all means
is that a full hearing must be conducted before this Court decides to grant a TRO to petitioners, none of
whom, by their very own documents, are under any lifethreatening, emergency, medical situation.

While in the end we may ultimately strike down the issuance of Watch List Orders by the Department of
Justice or uphold such orders and additionally provide standards before the power to restrict travel of
persons under preliminary investigation can be exercised, what is at stake this very day is a fundamental
question of whether we should presume that o cials 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. Government must
be asked whether it is even physically possible to maintain the infrastructure of our system of laws if
administrative o ces were not given the limited power to regulate the right to travel. The ability of the
Philippine Republic to keep its territorial integrity may even hinge on that question. To what extent is this
Court contributing to the weakening of the Philippine State?

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

When out of the country’s 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 ee. 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
veri cation whether the extradition with Spain has already been rendered effective through concurrence to
the same by the Senate.

The moment she ies out of Philippine air space, our country’s 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 country’s 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 people’s 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 certi ed to her continuing recovery and her positive prognosis, especially
after 6 to 8 months. There has been no allegation in her pleadings that those certi cations 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 ight. 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.

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

B. On the Show-Cause Order

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

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

C. Effectivity of the TRO

The majority, by a 7-6 voting, denied the 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 clari cation 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 o ce address at Ground oor, 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 le 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 le compromise or a confession of judgment and to refer the case to arbitration;

5. To deposit and withdraw any money for the purpose of any proceeding;

6. To obtain copies of documents and papers; and

7. Generally to do all other lawful acts necessary for the conduct of the said case. (Emphasis
supplied.)

While this opinion was being written, Court Administrator and Acting Chief of the Public Information O ce
(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 o ces, 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 clari ed 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 certi cation that the compliance with the TRO has been made, and only then
can the TRO become effective.

MARIA LOURDES P. A. SERENO

Associate Justice

Note: