While the Supreme Court upheld on Friday its temporary restraining order (TRO) on the government’s inclusion of former President Gloria Macapagal-Arroyo and her husband Jose Miguel “Mike” Arroyo in the immigration watch list, the TRO was not really effective yet because one of its conditions was not met.
This was the contention advanced by Associate Justice Ma. Lourdes Sereno in her dissenting opinion, in which she chided Court Administrator Jose Midas Marquez for incorrectly interpreting the high court’s resolution. Marquez is also the acting chief of the tribunal’s Public Information Office (PIO)
In her nine-page dissent, copies of which were made available late Friday afternoon, Sereno contended that the TRO issued on Nov. 15 remained ineffective because the Arroyo couple had failed to comply with Condition No. 2—that “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.”
In a press conference on Friday, Marquez announced the high court’s rejection of the executive branch’s appeal to reconsider the issuance of the TRO and said it “remained in full force and effect.”
Sereno, however, disagreed, saying: “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 Nov. 15, 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.”
The former first couple were given five days to submit the name of their legal representative. They did so on the same day, Nov. 15, in separate documents granting special power of attorney to Ferdinand Topacio, Mike Arroyo’s lawyer.
The couple’s designations were later certified by the Supreme Court’s clerk of court.
The certification was done shortly after the copy of the TRO was issued and a few hours before the couple’s scheduled flight to Singapore that immigration officials, on the instruction of Justice Secretary Leila de Lima, thwarted. The couple had also posted a P2-million cash bond, another condition in the TRO.
But in her dissenting opinion, Sereno noted a clerical error in the document submitted by Arroyo, where she said she was designating Topacio “to produce summons or receive documentary evidence.” (The same error was also in Mike Arroyo’s submission, but Sereno did not cite this in her dissent).
The justice said the clerk made a mistake, “considering the way the TRO was rushed,” in issuing the certification despite noncompliance by the Arroyos with one of the strict conditions imposed by the Court.
“Nevertheless, good faith and all, the legal effect of such noncompliance is the same—petitioners cannot make use thereof for failure to comply faithfully with a condition imposed by this Court for its issuance,” she said.
Voted 6 times
Sereno recalled that the justices voted six times to deliberate on the various petitions on the table during their special session on Friday morning.
The first vote was on whether the Nov. 15 resolution granting the TRO would be reconsidered or not. The Nov. 15 vote was upheld 8-5.
The issue for the second vote, proposed by one of the justices, was on whether the TRO issued by the clerk of court should be recalled for failure to comply with Condition No. 2.
On this matter, Sereno said, the vote was 7–6, finding that there was no compliance with the second condition of the TRO.
The seven were Justices Sereno, Antonio Carpio, Roberto Abad, Martin Villarama Jr., Jose Mendoza, Bienvenido Reyes, and Estela Perlas Bernabe.
Villarama and Abad were among the eight justices who voted to issue the TRO on Nov. 15 and who again voted to uphold it on Friday.
The third vote proceeded from the result of the second vote—whether, considering that the high court found that there was failure to comply with a condition imposed by the earlier resolution, it should explicitly state that the TRO was thereby suspended pending compliance with Condition No. 2.
The justices, voting 7-6, decided there was no need to explicitly state the legal effect on the TRO of the noncompliance by petitioners with Condition No. 2, Sereno recalled.
She explained: “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 No. 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.”
The fourth vote was on whether the high court would direct the public respondents to show cause why they should not be held in contempt for failure to comply with the TRO and to comply with it. The vote was unanimous.
The fifth vote was on whether Justice Secretary Leila de Lima should be ordered to also show cause why she should not be held in contempt for showing disrespect for the tribunal. The vote on this was 9-4.
The sixth vote was on whether to reset the Nov. 22 schedule of the oral arguments. This was unanimously denied.
In Friday’s resolution by the majority upholding the TRO, the Arroyos were told to “commit to the Court that [they] shall instruct [their] legal representative to amend [their document giving Topacio special power of attorney]: ‘to receive summons or documentary evidence’ and forthwith submit this compliance with the Court.”
Thus, Sereno said, Marquez erred when he told reporters that the TRO remained in effect.
She admonished Marquez: “The Court Administrator cum Acting Chief of the PIO is hereby advised to be careful not to go beyond his role in such offices, and that he has no authority to interpret any of our judicial issuances, including the present resolution, a function he never had from the beginning.”
She also told the clerk of court to be more careful in certifying compliance with the high court’s conditions: “[I]t is hereby clarified that it is mandatory for the clerk of court to ensure that there is faithful compliance with all the conditions imposed in our Nov. 15, 2011 resolution, including our second condition, before issuing any certification that the compliance with the TRO has been made, and only then can the TRO become effective.”
Contacted for comment, Marquez stood by his pronouncement that the TRO, as agreed by the majority, remained in full force and effect.
“Yes,” he replied via text message in answer to the question of whether he stood by what he said despite Sereno’s citation of a clerical error.
“As much as we should all respect the dissenting opinion of the good Justice, I announced the majority opinion which prevails and should be complied with. I also appreciate the advice for me to be careful in announcing Court orders and decisions,” he added.