Dissenting Opinion of Justices Carpio, Mendoza, Sereno, Reyes, Jr., and Perlas-Bernabe of Supreme Court of the Republic of the Philippines Regarding the TRO Against former President GMA



November 15, 2011

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 8-51 denying the right of public respondents to be heard before the grant of petitioners’ prayer for TRO.

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

Dissenting Opinion 2 G. R. Nos. 199034 and 199046

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 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 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.

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
2 Medical Certificate dated 01 October 2011, Annex “I” of the Petition.
3 Medical Certificate, 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., Officer-in-Charge of the Office of the Secretary General of the House of Representatives, Annex “M-2” of the Petition.

Dissenting Opinion 5 G. R. Nos. 199034 and 199046
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 7 Judge Angeles v. Hon. Manuel Gaite, G.R. No. 176595, 23 March 2011. 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 officer of the Supreme Court, and not a judicial officer, may deny the right to travel?
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