J.A.B. Bulao & Associates

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.

Republic of thePhilippines

Supreme Court

Manila

EN BANC

GLORIA MACAPAGAL-ARROYO,

Petitioner,

-versus-

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,

Respondents.

X- – – – – – – – – – – – – – – – – – – – – – – -X

JOSE MIGUEL T. ARROYO,

Petitioner,

-versus-

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,

Respondents.

X- – – – – – – – – – – – – – – – – – – – – – – -X

G.R. No. 199034

G.R. No. 199046

TEMPORARY RESTRAINING

ORDER

TO: Hon. LEILA M. DE LIMA

Secretary

RICARDO V. PARAS III

Chief State Counsel

Department of Justice (DOJ)

Padre Faura St., Ermita,Manila

RICARDO A. DAVID, JR.

Commissioner

Bureau of Immigration (BOI)

2ndFloorBOIBuilding

Magallanes Drive, Intramuros,Manila

Temporary Restraining Order – 2 – G.R. Nos. 199034 & 199046

November 15, 2011

GREETINGS:

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

Temporary Restraining Order – 3 – G.R. Nos. 199034 & 199046

November 15, 2011

(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)

Temporary Restraining Order – 4 – G.R. Nos. 199034 & 199046

November 15, 2011

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 thePhilippines, this 15th day of

November 2011.

ENRIQUETA E. VIDAL

Clerk of Court

By:

FELIPA B. ANAMA

Deputy Clerk of Court En Banc

Copy furnished:

Attys. ESTELITO P. MENDOZA, IVY D. PATDU and

HYACINTH E. RAFAEL

Law Office of Estelito P. Mendoza & Associates

Counsel for Petitioner in G.R. No. 199034

4thFloorDynavisionBuilding

108 Rada St.,LegaspiVillage

MakatiCity

Attys. ANACLETO M. DIAZ, MARIA ROSARIO Z.

DELROSARIO, CHRISTIAN B. DIAZ and

ANALENE V. BALISONG

Law Firm of Diaz Del Rosario & Associates

Co-counsel for Petitioner in G.R. No. 199034

6th Floor Padilla Bldg.

F. Ortigas, Jr. Road(formerlyEmerald Avenue)

OrtigasCenter,PasigCity

Attys. FERDINAND S. TOPACIO and JOSELITO O.

LOMANGAYA

Topacio Law Office

Counsel for Petitioner in G.R. No. 199046

Suite107SkywayTwinTowers

H. Javier Street,OrtigasCenter

PasigCity

OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo St.,LegaspiVillage

MakatiCity

TRIVIA 0026: ON THE TEMPORARY RESTRAINING ORDER ISSUED BY THE SUPREME COURT AGAINST DOJ CIRCULAR NO. 41 AND THE WATCH LIST ORDER ISSUED BY DOJ AGAINST GLORIA MACAPAGAL ARROYO. CAN THE EXECUTIVE LEGALLY DEFY THE SUPREME COURT? IS THERE A HISTORICAL PRECEDENCE? CAN THE ACT OF  JUSTICE SECRETARY DE LIMA IN NOT FOLLOWING THE TRO ISSUED BY THE SUPREME COURT WHICH LIFTED  THE WATCH LIST ORDER SHE ISSUED BE JUSTIFIED?

There is a historical precedence in theUS. President Lincoln defied the Order of Chief Justice Taney (EX PARTE MERRYMAN CASE) which directed him to release a rebel sympathizer (Mr. Merryman) from prison. In fact Chief Justice Taney issued a well-reasoned Order castigating Pres. Lincoln for suspending the writ of habeas corpus inMarylandwhich only Congress can do.

The ground of President Lincoln’s defiance is that he has the constitutional duty to enforce the law. An author commented:

Lincoln could well have quoted the great John Marshall to the recalcitrant old Taney. Marshall had written for a unanimous Supreme Court in the famous case of McCullough v. Maryland in 1819: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”48

OPINION: Probably in like manner, the Executive has the constitutional duty to enforce the law on elections and the law on plunder. There is no prohibition in the Constitution barring the Executive from issuing a watch list order. Besides, the right to travel of GMA is subordinate to the right of the citizenry to get justice for injury committed against the Republic for the rigged elections and for the many anomalies involving millions of pesos for which the Arroyos are being charged in DOJ for plunder.

Read more below (Excerpt from AMERICA THE LAST BEST HOPE, VOL. 1, William J. Bennett, 2006):

Lincolnwould take no chances with strategic Marryland. He authorized the temporary imprisonment of pro-secession state legislators and the suppression of disloyal newspapers in the state. He also suspended the writ of habeas corpus. That meant more arrests could follow, without recourse to the courts.Lincoln’s suspension of habeas corpus was the first such action on such a broad scale. Still, the Constitution specifically allows for such a suspension in time of rebellion. (“The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Article I, Section 9). His quick and effective actions inMarylandare debated to this day. TheOldLineState’s official song, ‘Maryland, My Maryland,” which speaks of spurning the “Northern scum,” still contains these anti-Lincoln lyrics:

                        The despot’s heel is on thy shore,Maryland!

                        His torch is at thy temple door,Maryland!

                        Avenge the patriotic gore

                        That flecked the streets ofBaltimore,

                        And be the battle queen of yore,

                       Maryland! MyMaryland!

            The despot referred to in the first stanza is President Lincoln.

            Surely rebellion was afoot. If a vote of the white citizens ofMarylandhad been taken, the state would very likely have seceded. Western Maryland was loyal to the Union, just as mountainous westernVirginiawas. But crowdedBaltimoreandMaryland’sEastern Shorewere “secesh.”Lincolnwas determined to saveMarylandand the nation’s capital for theUnion.

            He had little choice. Secession was in the air. Disloyalty, real and suspected, was everywhere. The situation was critical. The Confederate secretary of war boasted that the rebel flag would “float over the old Capitol dome before the first of May.”44

            When the creaking Chief Justice Taney ordered the release of a rebel sympathizer, a civilian, Lincoln ignored him. 45 Taney’s opinion in Ex Parte Merryman was actually a carefully reasoned analysis of history and constitutional law. Taney scoldedLincolnfor suspending habeas corpus, a power which Taney argued the Constitution implicitly gave to Congress, not to the president. Taney quoted the great John Marshall to good effect.46

            John Merryman had ben arrested by military authorities acting underLincoln’s expansive orders. They charged Merryman with helping to blow up railroad bridges leading to the endangered capital ofWashington. 47 Taney seemed not to be concerned with this mortal threat to the life of the republic. Could a rebel blow up the bridges over which returning congressmen must pass in order to reassemble and vote a suspension of habeas corpus-and then point to Congress’s failure to convene as a justification for court orders against the president?

           Lincolncould well have quoted the great John Marshall to the recalcitrant old Taney.Marshallhad written for a unanimous Supreme Court in the famous case of McCullough v. Maryland in 1819: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”48

            What could be more legitimate for the embattled President Lincoln than to keep disloyal elements from seizing control of the nation’s capital, preventing the Congress from meeting, and thereby breaking up the government? It is a good thing the widely rumoured arrest of the aged Chief Justice never went forward. But it must be recorded that in heat of civil war,Maryland’s Roger Brooke Taney did nothing to protect the nation he had sworn to serve. It is also true that it was Taney’s disastrous Dred Scott opinion that, as much as anything else, had put the nation’s young men at bayonet point with one another.

            Many high-ranking military officers-but no enlisted men- “went with their states.”            The superintendent of the U.S. Naval Academy inAnnapolis,Maryland, sensed the spirit of his neighbors. Captain Franklin Buchanan joined the Southern forces.

            Even many in the North were willing to let theUnionbe sundered. New York Tribune editor Horace Greeley wrote of the seceding states: “Wayward sisters, depart in peace.” Many abolitionists-but not Frederick Douglass-similarly saw secession as a means to rid theUnited Statesof slaveholding states. Many Northern whites hated the abolitionists and blamed them for the war. When he tried to address a public meeting inBoston, the heart of anti-slavery sentiment, Douglass was thrown down a staircase by hired thugs. But he gave as good as he got, fighting them off “like a trained pugilist.49

            As he reported in his first Message to Congress,Lincolnacted to preserve theUnion. THt was the first duty of the president. The chief executive also has a constitutional duty to “take care that the laws be faithfully executed” 9Article II, Section 3). Pointing out that the laws were being flouted in all the seceding states,Lincolnasked” “Are all the laws but one to go unexecuted and the Government itself go to pieces lest that one be violated?50 Despite arguments at the time (and those that continue to this day) that Lincoln was acting as a dictator, the president reminded Congress that it shared responsibility for saving the Union and that it had the ultimate power to remove him from office if Congress found he had violated his oath of office. His Fourth of July message spoke powerfully of the stakes involved in the war:

#48: http://www.answers.com/topic/mcculloch-v-maryland.