TRIVIA 0028: SOME  THOUGHTS ON THE TRO ISSUED AGAINST THE WLO ISSUED AGAINST THE ARROYOS PURSUANT TO DOJ CIRCULAR NO. 41.

 

Point No. 1:

 

In his new petition filed, Atty. Estelito Mendoza argues:

 

By preventing Mrs. Arroyo from leaving the country despite the Supreme Court order, De Lima and David “are disregarding the core value of separation of powers among the co-equal branches of the government and the principle of checks and balances which guarantee our basic freedoms.”

 

If the Supreme Court and the Executive Department are co-equal, what right does the Supreme Court have  to order the Executive Department not to enforce the Watch List Order? If the Supreme Court has that right then it is superior to the Executive Department. For the former issues an order and the latter obeys the order. Obviously, they could not be perceived as equal.

 

The present events, though considered dismal by some, may produce a new concept in law which is a living phenomenon, always evolving in response to changing times. Perhaps such concept is: that the Supreme Court should not issue  a temporary restraining order against the President and his secretaries who are his alter-ego. Otherwise, they would violate the principle that the Supreme Court and the Executive are co-equal. At most what the Supreme Court can do is to declare a legal finding that under the circumstances it is in the best interest of justice to allow the lifting of the WLO in the meantime that its legality is being determined. The Executive may comply, either as a matter of courtesy or as a matter of duty. But it may not comply when it believes that such compliance will curtail its sacred duty to enforce the laws. Also, it must be noted that at this point  the issue is not legality but justice: whether the absence of a temporary injunctive relief would cause irreparable injury. While the SC has the last say on legality, it has no monopoly over justice. Both the Executive and SC can equally sense and determine justice and are  equally duty-bound to achieve it.

 

 

Point No. 2:

 

In effect the position of DOJ Secretary De Lima now is that: First, the TRO is not effective yet  because there is a pending motion for reconsideration filed which must be resolved first. Otherwise, such motion would be rendered moot. Second: if the TRO is implemented then the purpose of the Watch List Order could not be attained. In other words, the WLO would be useless. The Arroyos are already gone and may not come back anymore to face justice. There  is no point determining the legality of the WLO. It would merely be an academic exercise. The act (the flight of the Arroyos) sought to be prevented is already done. In effect the Supreme Court is deemed to have already ruled that the WLO is not legal. Third: there are extraordinary circumstances prevailing in this case.

 

The lawyers of the Arroyos insultingly attack DOJ Secretary De Lima by saying even a law student knows that a motion for reconsideration cannot stop the implementation of the TRO because  by its nature it is immediately effective. They say even the subject  TRO expressly states:  “effective immediately and continuing until further orders from this Court”.

 

The debate is on-going. Majority of the lawyers seem against DOJ Secretary De Lima. But majority of the people  seem to favor her.

 

Certainly, the stand of DOJ Secretary de Lima is out of the ordinary. Fr. Bernas in his column has to  exclaim with exasperation:  “Where in the world are we today?”.

 

As to the possibility that the Arroyos would not come back to face justice, Fr. Bernas said “But the government is not too weak not to find ways to bring her back.” But may we be reminded that in the very recent past, Sen. Lacson, who certainly has no millions as the Arroyos have, had eluded the hand of the “strong” government who appeared helpless up to the time CA issued a ruling which made it safe for Sen. Lacson to return.

 

So,  what if DOJ Secretary de Lima is correct? Will the Supreme Court reverse its previous ruling and withdraw its TRO?

 

I hope so.  For in so many cases the Supreme court disregarded established rules and jurisprudence.  Is it not that in the Apo Fruits Plantation case (2010) the Supreme Court disregarded the immutability of judgment rule and annulled an entry of judgment because of “special circumstances”? Is it not that in the Filomeno Gonzales case (2006) the Supreme Court disregarded procedural rules “to set right an arrant injustice” because of “extra-ordinary circumstances”? Is it not that in the Whisenhunt case (2001), the Supreme Court has discarded the established jurisprudential rule on damages because of the “extraordinary circumstances . . . unusual grief and outrage suffered by the bereaved family”?

 

Would these rulings not teach us that Secretary De Lima, while acting out of the ordinary, could be upheld as extra-ordinarily right?

 

Perhaps history would conclude that DOJ Secretary De Lima acted with great courage  and the Supreme Court ruled with magnanimous humility. Both can emerge great for humility and courage are badges of greatness.