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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.
xxxx

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 Courts November 22, 2011
Resolution on the same issue.

After the vote, Justice Sereno, when asked when she would submit her dissenting
opinion thereon, committed to do so on December 1, 2011, a self-imposed
deadline. As it turned out, her opinion was belatedly filed only on December 2,
2011 (a Friday) at 4 p.m. She did not even circulated a letter asking for an
extension of time to submit her opinion. Her late submission effectively prevented
me from responding to her opinion since I was already booked to leave
for Jakarta on December 4, 2011 to attend the ASEAN Chief Justices Roundtable
on Environment. Accordingly, I requested Atty. Enriqueta E. Vidal to hold in
abeyance the promulgation of Justice Serenos opinion so that the matter of the
promulgation could be discussed in the December 6, 2011 En Banc session. I could
have had filed a separate opinion on her dissent had she filed it on December 1,
2011. For then, I would have the rest of December 1 and the whole day of
December 2, 2011 to prepare and submit one.

There is yet another reason why I felt the dissent should not be promulgated until
the validity thereof is discussed by the En Banc. In my view, the disclosures made
in Justice Serenos dissent may constitute a breach of Sec. 2, Rule 10 of the IRSC
which reads:

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 mornings special session called exclusively to deliberate on the pending


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

The first voting was on whether the Resolution dated 15 November 2011 granting
the prayer for Temporary Restraining Order (TRO) by petitioners is to be
reconsidered or not. The justices who voted on the 15 November 2011 Resolution
maintained the same vote, 8-5.

The issue in the second voting, proposed by one of the members of the
Court, was on whether the TRO issued by the Clerk of Court should be recalled
for failure to comply with one of the conditions, Condition Number 2, imposed
for the issuance of the TRO. Condition No. 2 reads:

(ii) The petitioners shall appoint a legal representative common


to both of them who will receive subpoena, orders, and other
legal processes on their behalf during their absence. The
petitioners shall submit the name of the legal representative, also
within five (5) days from notice hereof; (Emphasis supplied.)

On this matter, the voting was 76[1] finding that there was no compliance
with the second condition of the TRO.

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

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

The fifth vote was on whether public respondent DOJ Secretary should be
ordered to also show cause why she should not be held in contempt for showing
disrespect for the Court. The voting on this was 9-4.
The sixth voting was on whether to reset the schedule of the oral
arguments. This was unanimously denied.[2]

2. The Court, motu proprio, even without the motion from petitioners herein, is
ordering public respondent De Lima to show cause why she should not be held for
indirect contempt by showing disrespect to the Court. The majority has explained
that this order is anyway, to just require an explanation from her, and is thus not
out of the ordinary.[3]
3. The majority, by a 7-6 voting, denied the minoritys proposition that a resolution
be issued including a phrase that the TRO is suspended pending compliance with
the second condition of the 15 November 2011 Resolution. The majority argued
that such a clarification is unnecessary, because it is clear that the TRO is
conditional, and cannot be made use of until compliance has been done. It was
therefore the sense of the majority that, as an offshoot of the winning vote that
there was failure by petitioners to comply with Condition Number 2, the TRO is
implicitly deemed suspended until there is compliance with such condition.
Everyone believed that it would be clear to all that a conditional TRO is what it is,
conditional.[4]
4. Contrary to this interpretation, as stated, it was the understanding of a majority
that the TRO is suspended pending compliance with our earlier Resolution.[5]

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
[7]
2011, the En Banc, after a long discussion, voted on the following issues:

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

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 Abads 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 Carpios 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 groups vote, which now has the effect of
reversing their earlier ruling. This is not strange, as any clarification of an earlier
vote can result in a very substantive revision of that earlier vote. I requested two
(2) days to write my Dissent.[10]

5. When the resolution came out, it was not, with all due respect, a fully accurate
reflection of what took place; thus, the sentences in my Dissent advising the
acting chief of the PIO to desist from interpreting our actions, the letter of Justice
Carpio, and the need for a re-voting by the En Banc on 29 November 2011. This
incident demonstrates an existing gap between the actual discussion and the
voting results that take place in an En Banc session and their reflection in written
form via an unsigned resolution.[11]

Justice Serenos 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 Justices task under Sec. 2, Rule 10 of the IRSC to
record the action or actions taken in each case. The notes of the Chief Justice shall
be the bases of the minutes of the session which, in turn, resolutions shall be
predicated upon. Nowhere in the Rules does it say that a member can incorporate
the deliberations in his/her opinion. This caveat is to obviate the possibility of
conflicting statements of facts that will likely arise especially if the member takes a
contrary position to that of the majority.Justice Sereno, by stating what are
allegedly the result of the deliberations of the En Banc and the votation on cases or
incidents, appears to encroach into the functions of the Chief Justice. This should
not be countenanced as once a vote is taken on an issue, the majority view then
becomes that of the Court. To say that such was not the case, as is the position of J.
Sereno, would sow doubt and suspicion on the veracity of the resolutions of the en
banc as authenticated by the Clerk of Court. Else the stability of judicial decisions
and resolutions is compromised.
Accordingly, I recommend that the portions of the unpromulgated
Dissenting Opinion of Justice Sereno delving on what under the Rules are
considered confidential be expunged for being violative of Sec. 2, Rule 10 of the
IRSC. In the same token, confidential matters contained in this separate opinion
should likewise be expunged in the event the Court decides to adopt the
recommendation herein made. It should be made clear, however, that what
impelled me to include matters in this opinion that only members of the Court
ought to know is to show that, should the dissenting opinion of Justice Sereno be
promulgated in its present form, it in itself is a departure from the IRSC.

The 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 clearThe temporary restraining order shall
be immediately executory. (Last paragraph, p. 3) This directive is qualified by item
(c) of the said Resolution which prescribed three (3) conditions:

i. the posting of the P2M bond within 5 days from notice otherwise the
TRO will be automatically lifted;

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 2 nd sentence of condition
(i) that the failure to post the bond within 5 days will result in the automatic
lifting of the TRO.

While The Court ruled later in its November 22, 2011 Resolution that the
special power of attorney submitted by Atty. Topacio on November 15, 2011 was
insufficient, the TRO however remained effective by virtue of the submission of
the requisite P2M bond. It should be made abundantly clear that the qualification
respecting the automatic lifting of the TRO obtaining in condition (i) was not made
to apply to condition (ii), implying that non-compliance with the requirement on
the appointment of the legal representative will not result in the lifting of the
TRO. The matter of whether or not condition (ii) constitutes a condition precedent
or a subsequent condition, is now really of little moment. The important
consideration is that non-compliance with condition (ii) would not, under the very
terms of the enabling Resolution or the TRO itself, result in the automatic lifting of
the restraining order thus granted.

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

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

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

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.