16 November 2011

Arroyo et al v. the People

GMA drums up support among supporters
as she attempts to flee the country in neckbrace, wheelchair and surgical mask


As many may be familiar with now, GMA won a temporary restraining order from the Supreme Court which, in effect, allows her to leave the country without any obstacle. However, this order has apparently not been served on the DOJ or the Solicitor General and so the Bureau of Immigration and the Civil Aviation Authority did not allow GMA and her husband to leave the country last night, amid much fan fare.

I
The order does not reach the merits of GMA's claim that she has a constitutional right to travel in realms beyond the reach of our government. Rather, a TRO is issued if there is imminent irreparable harm by maintaining the status quo until a decision on the merits can be rendered. In this case, however, the court provided no explanation or recitation of facts that would lead them to conclude that they were facing imminent irreparable harm. There are three words there, each with legal significance. First, there must be harm. Second, it must be irreparable. That means, that if the harm were to occur, it could not be adequately compensated for by a monetary award or some other relief at the end of the case. Third, it must be imminent. It is not sufficient to say that sometime in the undefined future, there will occur irreparable harm. That must occur at this moment.

It is difficult to say that GMA will face irreparable harm because, first, the Court has not been given the opportunity to weigh the expert medical evidence for and against GMA's claimed condition. Second, the government has offered to pay at its expense the travel costs for GMA's physicians of choice to come to the Philippines to conduct tests, evaluations and medical procedures. You see, this offer itself chips away at both the imminent requirement and irreparable requirement.

I have read elsewhere from defenders of GMA and Corona that is was a moment for the rule of law and the Supreme Court has upheld the fundamentals of separate branches of government, etc., etc.,. But I would like to point to a decision rendered by the Supreme Court just a few months ago quashing a TRO issued against GMA by a lower trial court for failing to meet the standards of preliminary injunctive relief.

First, please review the Supreme Court order on Raissa Robles blog. Next, please consider G.R. No. 177130 (2011), Ermita v. Aldecoa-Delorino. In that case, petrochemical companies sued GMA for a 2006 executive order implementing tariff reductions on plastic imports and received a preliminary injunction by the lower court, by Judge Aldecoa-Delorino. GMA appealed to the Supreme Court the issuance of the preliminary injunction. The Supreme Court (the same GMA 8 voting in favor) wrote:

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 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.

And following jurisprudence, these requisites must be proved before a writ of preliminary injunction, be it mandatory or prohibitory, will issue:

(1) The applicant must have a clear and unmistakable right to be protected, that is a right in esse;

(2) There is a material and substantial invasion of such right;

(3) There is an urgent need for the writ to prevent irreparable injury to the applicant; and

(4) No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury. (emphasis supplied)a1a

It is thus ineluctable that for it to be entitled to the writ, the [Plaintiff] must show that it has a clear and unmistakable right that is violated and that there is an urgent necessity for its issuance. That [Plaintiff] had cause of action and the standing to interpose the action for prohibition did not ipso facto call for the grant of injunctive relief in its favor without it proving its entitlement thereto.

Transfield Philippines, Inc. v. Luzon Hydro Corporation, illuminates on the right of a party to injunctive relief:

Before a writ of preliminary injunction may be issued, there must be a clear showing by the complaint that there exists a right to be protected and that the acts against which the writ is to be directed are violative of the said right. It must be shown that the invasion of the right sought to be protected is material and substantial, that the right of complainant is clear and unmistakable and that there is an urgent and paramount necessity for the writ to prevent serious damage. Moreover, an injunctive remedy may only be resorted to when there is a pressing necessity to avoid injurious consequences which cannot be remedied under any standard compensation.

The Supreme Court did not go through any of this analysis. Instead, it did the apparent opposite of what it reversed the lower court for doing and has given GMA and her family a free pass. And, in this case, it is not clear why GMA can't wait a week or two before leaving the country to allow oral arguments to be had. What is the rush?

Also the remedy seems so extreme. The language of the restraining order seems to enjoin the power of the DOJ and Bureau to stop ANYONE from leaving the country. So, the response to the claim that GMA will suffer irreparable harm by not being allowed to leave the country is to allow everyone and anyone to leave the country.

II

While in modern times, we tend to see the courts as powerful institutions, judicial power is founded on credibility and reputation. Courts do not have armies. Courts do not raise revenue and maintain treasuries. If the court ordered something and no one listened to them, the court would have no way to enforce its decision. Instead, they simply have the power of persuasion and influence. There is a number of ways courts' build their credibility and reputation. One is by consistency and following their own precedent.

As we see, in this instance, however, the only thing consistent about the prior law on preliminary injunctions and the present case, is that Gloria Macapagal Arroyo can do whatever she wants. The previous cases on preliminary injunction by substantially the same Supreme Court have a long and stable history regarding the powers of the court and the standards by which they will issue injunctive relief. This present case does not do that at all.

And this is the danger. At the moment the DOJ is not following the order because they have not been legally notified of the order. That will work or the moment. However, when the DOJ and solicitor general are served, then they will be faced with a different set of issues.

Do they ignore the order of the Supreme Court? That would trigger a constitutional crisis of epic proportions -- much bigger than the mindless interference of the Supreme Court in the impeachment of Merceditas Gutierrez. That is one possible solutions. But there are others.

Ultimately, this decision which fails in every respect to comport with the Supreme Court's own prior law and utterly fails to provide any reasons for its decision invites the government and the public to ignore its order. Corona need lecture no one but himself and his peers regarding the lack of respect for the Supreme Court.

III

First, the Department of Justice and Bureau of Immigration could revoke GMA and Mike Arroyo's passports and require them to follow the process to obtain new passports. By my calculation, this would delay any departure by at least a month. They could also require that the DFA not allow any part of the process to be expedited.

Second, the DOJ and Bureau could issue new circulars and new watchlist orders on GMA and Mike Arroyo. The present preliminary injunction only relates to Circular and watchlist orders.

Third, the Department of Tourism could refuse to accept payment for the travel tax and allow her to leave and require under Section 5 of P.D. No. 1183 that GMA establish her capacity to pay the government all of its costs in having her extradicted if she refuses to return, from countries that do not have extradition treaties.

There are also many regulations and rules that provide criminal and civil penalties for not being obeyed. If the DOJ needs more time to investigate GMA before charging her with a crime, they might as well charge her with these many small bailable offenses. While it is true that she is allowed bail, the process to be bailed takes some time. American gangster boss Al Capone went to prison for failing to file tax returns on his illegal earnings.

IV

Aquino's administration is under every duty and obligation to halt GMA's continued destruction of all the institutions of our government. This includes ignoring the Supreme Court in its utter lawless decisions.

3 comments:

  1. This comment has been removed by a blog administrator.

    ReplyDelete
  2. GMA's lawyers always say that ...

    "what's at stake here is not GMA's rights but the rights of the people."

    they are correct you know. it is the right of the people at stake if the main accused leaves.

    ReplyDelete