Calling a spade
Business World 17 November 2011


That spectacle on Tuesday night (Nov. 15), of former President Gloria M. Arroyo being barred from boarding her flight, in spite of the fact that the immigration authorities were furnished with a certified true copy of the Supreme Court’s Temporary Restraining Order (TRO), was, without a doubt, another very black eye to the administration’s already very much battered reputation regarding their upholding the rule of law.

One can and should discount the reactions of the obvious partisans and their very obvious self-serving statements, but when someone like Fr. Joaquin Bernas who has the reputation of being unflappable, and who has no axes to grind either way, is quoted as saying “this is no longer injustice, this is cruelty,” then everybody should sit up and listen.

The government goofed big time, for their flagrant defiance of the SC’s order, which was “immediately executory,” and which specifically stated that “You, Respondents” [ i.e., DOJ Secretary Leila de Lima, Bureau of Immigrations Commissioner Ricardo David], “your representatives, or persons acting in your place or stead, are ENJOINED from enforcing or implementing DOJ Department Circular 41, Watchlist Order Nos….” I mean, how much clearer can one get? And yet excuses were made at all levels — De Lima that she had not been served, the airport authorities that they had orders from De Lima (which they could not produce). Plus their reported holding on to the passports of the Arroyo group, not to mention hiding (it would seem that the lawyer who was officer of the day didn’t have the nerve to face the party).

Malacañang spokesman Edwin Lacierda goofed big time when he accused Arroyo of “drama” — particularly since this accusation was juxtaposed against Elena Bautista Horn’s story, very matter-of-factly told, that Arroyo’s camp had written the NAIA officials asking permission to use the tarmac and the lounge. If permission had been granted (whatever the immigration officers would have chosen to do afterwards), then the melee at the main entrance of the NAIA — Lacierda’s “drama” — would have been avoided. Stupid, stupid, stupid.

But when one reads the dissenting opinions of SC Associate Justices Antonio Carpio and Maria Lourdes Sereno, one realizes that the Supreme Court majority also goofed big time (it was an 8-5 vote).

As Sereno emphasizes, no member of the Court was even suggesting that the spouses Arroyo (the petitioners) had no constitutional rights that should be protected, nor was anyone saying that the petitioners should not be granted any remedy.

So if there was no disagreement among the SC justices with respect to the above, then what was the bone of contention: again, Sereno explains, “the bone of contention before the Court was, simply, whether to allow public respondents [read government] their right to due process by giving them the right to comment on the petition… 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.”

In other words, what the dissenters wanted was merely to (1) defer action on the Arroyo petition for a TRO, (2) require the government to file their comments on or before Nov. 21.2011, (3)hold oral arguments on Nov. 22, 2011, at 2 pm, and (4) decide whether to issue a TRO immediately upon the conclusion of the oral arguments.

Why do I say “merely?” Because, as AJ Carpio points out, this would entail no more than five working days (Nov. 15 to 22), which “is brief enough so as not to prejudice petitioners in any way.”

Yet the eight SC members did not want to defer action at all.

Which is why, Sereno, in her dissent, points out that the Rules of Court and jurisprudence prescribe very stringent requirements before a TRO can be issued. And among these is the requirement that the allegations are truthful.

This requirement, Sereno continues, does not seem to be fulfilled by the Arroyo petition, which appears to contain “inconsistent, and probably untruthful statements.” Which, with her usual thoroughness, Sereno details as 1) attachments (statements by attending physician as well as surgeon) to the Arroyo petition belie the immediate threat to life that Arroyo claims; (2) other inconsistencies detailed by the DOJ.

Moreover, Sereno points out that 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 (apparently, DOJ Circular no. 41, which Arroyo is disputing, was signed by then DOJ Secretary Alberto Agra, who by the doctrine of qualified political agency, was acting for Arroyo herself.

And finally, Sereno points out that the Court must face the risk of flight frontally, and ensure that it is not unduly favoring an individual to the prejudice of the State.

All of which, taken together, means that at the very minimum, the SC should allow the government to be heard before granting the TRO. To hear Sereno put it:

“The majority cites the right to life as an underlying value that its Resolution is trying to protect. Petitioner Arroyo’s own documentary submisssions 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.”

And that’s why I say the SC majority goofed — big time.

But having said that, the point is that the SC made a ruling. And whether we agree with it or not, that ruling must be obeyed — particularly by officers of the Court, like de Lima, et al. Defiance is unacceptable, because it opens up a Pandora’s box whose contents start with anarchy.

So what is the solution? Do it the legal way. Impeach. And choose the best and the brightest for replacements.