EN BANC G.R. No. 199034 GLORIA MACAPAGAL ARROYO, Petitioner, v. HON. LEILA M.

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 Order3 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
1 2 3 4 5

Rollo of G.R. No. 199034, pp. 59-61. Id. at pp. 45-46. Id. at pp. 47-48. Id. at pp. 49-58. G.R. No. 162716, September 27, 2006, 503 SCRA 611.

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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
6 7 8 9

Id. at p. 629. G.R. No. 49529, March 31, 1989, 171 SCRA 501. Id. at pp. 507-508. G.R. No. 166715, August 14, 2008, 562 SCRA 251.

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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
10

Id. at pp. 288-289.

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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. Arroyos 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. Arroyos 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-11D00170); 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.

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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
11

Marcelo G. Ganaden, et al. v. Hon. Office of the Ombudsman, et al., G.R. Nos. 169359-61, June 1,

2011.

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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
12 13 14

Rollo, p. 67. Id. at p. 69. Id. at p. 86.

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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 majoritys mind when they decided to issue the TRO, there would have been no basis to issue a TRO in Mr. Arroyos 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 Courts issuance of a TRO in Mr. Arroyos 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. Arroyos 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
15

G.R. No. 177130, June 7, 2011.

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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