11 - Arroyo vs. De Lima, G.R. No.

199034, November 15, 2011 Resolution

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 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,

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 filed by the Office of
the Solicitor General (OSG) for respondents Hon. Leila M. De Lima, in her official
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 filed 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 filed 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 filed by counsel for petitioner in G.R. No.
199034;

(e) Very Urgent Manifestation and Motion dated November 9, 2011 filed 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 filed 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 official business. Del Castillo, J., on official 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

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–

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

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DISSENTING OPINION

CARPIO, J.:

I vote to defer action on petitioners’ prayer for a temporary restraining order until after
the Government files its Comment and after oral arguments are heard on the matter.
This should take not more than five 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 officials and
employees. For example, Office of the Court Administrator Circular No. 49-2003(B)
requires judges and court personnel “to secure a travel authority from the Office 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 filed before the courts while petitioners are
abroad. In fairness to the Government which is tasked with the prosecution of crimes,
this Court must hear first 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 file 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 Order 3 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 justification, 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 first 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 justification 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 finality 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
confines 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 offices; 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 offices created by the Office 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 insufficient
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 filed 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 confines 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 defined 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 infliction
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 certificate, 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 deficiency. 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 x x x

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 deficient.

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 certificate 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 definitely 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 first 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 first 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 official
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 official 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 file 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. Office 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.

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-

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

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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 five (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 8-5 1 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 verified, and shows facts entitling the
applicant to the relief demanded…” (Rule 58, Section 4)

A petition that contains a false verification can have many consequences among which
are: (a) the Petition can be dismissed or denied, (b) the person making the false
verification can be punished for contempt of court, and (c) the person making the false
verification can be punished for perjury.
So strong is the requirement of truthful allegations in pleadings filed 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 afflicting 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, certified 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 confined 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 filed 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 14 th 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 deficiency. 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 finding 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 identified 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, specifically, 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 field. Why then should there be other countries of destinations that
are included in her travel authority but not specifically 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 Office required a definitive 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 profit 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 qualified 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 qualified 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 flight 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 difficult 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 case 8 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 officer of
the Supreme Court, and not a judicial officer, 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 official or employee of the Supreme Court in particular and the
Judiciary in general shall leave for any foreign country, whether on official business or
official time or at one’s own expense without first 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 filing their leaves upon their return. 11 Personnel of the lower courts are even
required to obtain clearance as to pending criminal and administrative cases filed
against them, if any,12 and those who shall leave the country without travel authority
issued by the Office 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 sufficient 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 officers.

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 first 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