DEBATE HEATS UP: SC CITES EFFORT TO 'SHOOT THE MESSENGER' OVER TRO RULING
[PHOTOS: LEFT - SUPREME COURT SPOKESMAN MIDAS MARQUEZ & ASSOCIATE JUSTICE MA. LOURDES SERENO TAKING OATH OF OFFICE FROM PRESIDENT AQUINO]
MANILA, NOVEMBER 21, 2011 (TRIBUNE)By Benjamin B. Pulta - The heat of the debate over the temporary restraining order (TRO) that the Supreme Court upheld last Friday had spawned a new controversy over the role of the tribunal's spokesman who, in a dissenting opinion being highlighted by pro-Aquino media, was admonished for supposedly interpreting the resolution of the SC on the TRO as being upheld but which SC spokesman Midas Marquez described as an effort to "shoot the messenger."
Highlighted in the dissenting opinion of Associate Justice Ma. Lourdes Sereno was her assertion that the TRO on the travel ban on Mrs. Arroyo and her husband Jose Miguel "Mike" Arroyo was not effective yet because one of its conditions was not met.
Sereno also supposedly chided Marquez for incorrectly interpreting the SC's resolution.
Marquez wrote The Tribune, however, to state that the dissenting opinion "while it may be repeatedly publicized and broadcasted by those who agree with it, it remains a minority view. The majority view always prevails and must be complied with."
He noted that Sereno's dissenting opinion "is just that — a dissent."
Marquez said the SC is a collegial body of 15 justices and it is not very often that it decides cases unanimously.
"At the end of every issue it deliberates on, the Court takes a vote. And like any democratic process, the majority view prevails. Justice Sereno has so eloquently made her point. We should all respect that.
However, hers did not get the majority vote. We should not lose sight of the fact that a dissenting opinion.
"The public must not be led to believe that the dissenting view is the controlling view," Marquez wrote.
He said in the issuance of a TRO by the majority in the twin cases concerning the Arroyo couple, the Court, on a vote of 7-6, held that while petitioners' initial compliance may not have been substantial, there was no need to suspend the effectivity of the TRO pending their subsequent supplemental compliance.
"This is the majority view, and as spokesperson of the high court, this is what I announced," Marquez said.
A special en banc session was held by the SC last Friday to decide several issues about the TRO primarily on a government appeal to have it reconsidered.
The TRO was issued last Nov. 15 but the government through the Department of Justice (DoJ) all the same maintained a watchlist order on the former president that prevented from leaving for supposedly a medical treatment in Singapore.
"The Clerk of Court does not issue the TRO after the conditions set forth in a conditional TRO are met. Once the conditions in a conditional TRO issued by the Court through the Clerk of Court are fulfilled, the TRO ipso facto takes effect. Thus, there can hardly be any 'human mistake (which is) understandable on the part of the Clerk of Court' as mentioned in the dissenting opinion," according to Marquez.
Marquez cited his being with the SC for more than two decades, "and have been announcing its decisions for the last five years, dating back from the watch of Chief Justice (Renato) Puno.
While I have always been very careful in my announcements and press briefings, knowing fully well, as the dissent chides, that I have "no authority to interpret any of (the) judicial issuances, including the present resolution, a function (I) never had from the beginning," the reminder is much appreciated, Marquez said.
"As spokesperson, I too have a very important obligation to the media and the public, that they clearly understand the decision of the Court. The decision may not always be popular, but that is the decision of the Court, taking into consideration the rule of law. So please don't shoot the messenger," Marquez said.
Copies of Sereno's dissent was made available late Friday afternoon just after Marquez announced that the SC upheld the TRO on the travel ban on Mrs. Arroyo.
Sereno's dissent contended that the TRO issued on Nov. 15 remained ineffective because the Arroyo couple had failed to comply with condition no. 2, that "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."
In the press conference on the court decision, Marquez announced the rejection of the DoJ's appeal for reconsideration, adding the TRO "remained in full force and effect."
Sereno, however, in her dissent said "contrary to this interpretation, as stated, it was the understanding of a majority that the TRO is 'suspended pending compliance' with our earlier resolution. The operational ineffectivity of the TRO is implied — for it is a basic principle that the failure of petitioners to comply with one of the conditions in the resolution dated Nov. 15, 2011 is a jurisdictional defect that suspends, at the least, the effectivity of the TRO. Therefore, the TRO, until faithful compliance with the terms thereof, is legally ineffective."
The SC will take up this week whether or not Arroyo will remain under hospital arrest.
Speaking with newsmen, Marquez explained that the issue on the legality of the proceedings conducted by the joint DoJ and Commission on Elections (Comelec) panel that led to the filing of the electoral sabotage case against Mrs. Arroyo by the Comelec en banc is yet to be resolved by the Court.
Former First Gentleman Jose Miguel Arroyo and former Comelec Chairman Benjamin Abalos separately filed a suit before the SC questioning the legality of the constitution of the DoJ-Comelec joint panel to conduct preliminary investigation on the electoral sabotage charges against them.
Former Autonomous Region in Muslim Mindanao (ARMM) Governor Andal Ampatuan Sr. earlier executed a sworn statement denying that Arroyo ordered him to manipulate the results of the 2007 elections.
Ampatuan is presently being detained at Camp Bagong Diwa for his alleged part in the 2009 massacre in his home town.
"There is no truth that GMA mentioned and ordered me to alter the results of the elections because GMA is sure of my victory and that of my allies who were all running unchallenged at the time. (Walang katotohanan ang nabanggit na pag-uutos at hindi ako pinagsabihan ni GMA na baguhin ang resulta ang halalan sa dahilang siguradong-sigurado ang Pangulong GMA sa katapatan at pagpanalo ko (Ampatuan) at ng mga kasama ko na pawang walang kalaban na tumatakbo noong mga panahong yon.
"Lubhang kathang-isip at hindi kapani-paniwala...Kung sakali mang nanalo ang mga kandidato para sa Senado ng Team Unity, ito ay sa kadahilanann lamang na matibay ang paniniwala ng mga ka-partido sa mga nagawa na at magagawa pa ng mga ito.)"
Arroyo through his lawyer Ferdinand Topacio described the panel "a kangaroo court designed with the sole purpose of persecuting the former first gentleman and his ailing wife."
He added that the order creating the joint panel should be declared null and void considering that Justice Secretary Leila de Lima and Comelec Chairman Sixto Brillantes Jr. had acted as lawyers for Sen. Aquilino Pimentel III, one of the complainants in the electoral fraud case against the Arroyos, in his election protest.
He noted that Brillantes was also the lawyer for the late actor Fernando Poe Jr., who lost against Mrs. Arroyo in the 2004 presidential election but claimed that he was cheated.
On the other hand, Abalos claimed that DoJ-Comelec Order No. 001-2011, creating the joint panels, violates his constitutional right to equal protection of the law since the panels are serving functions of law enforcement, prosecutor, and judge at the same time.
Marquez said both petitions have been consolidated by the Court is expected to be tackled soon.
He explained if the Court rules in their favor, then the proceedings as well as its recommendations which became the basis of the Comelec in filing the electoral sabotage complaint before the RTC "may be declared void ab initio."
"If that panel is adjudged as unconstitutional then of course all the proceedings conducted by that panel would have to be nullified but again we have to wait for the decision of the Court," Marquez said.
Meanwhile, the camp of Mrs. Arroyo is expected to question before the SC today the filing of electoral sabotage charges and the issuance of the arrest warrant by the Pasay RTC.
Topacio said they will also file a supplemental petition for the issuance of a temporary restraining order to suspend the proceedings pertaining to the charges filed against Mrs. Arroyo as he maintained that the filing of the case was railroaded to render the resolution of the Court allowing Mrs. Arroyo and her husband to travel abroad and seek medical treatment for her rare bone disease.
During last Friday's special en banc session, the Court denied the motion for reconsideration filed by De Lima through the office of the Solicitor General (OSG) seeking the recall of the court's TRO enjoining them from barring the couple from leaving the country.
However, the Court's TRO was superseded by the filing of the electoral sabotage charges and the issuance of the arrest warrant by the Pasay RTC against Mrs. Arroyo, which effectively prevented her from leaving the country.
Marquez agreed that the filing of the case and the issuance of the arrest warrant by the trial court has rendered the SC's TRO moot, thus, the former President can no longer leave the country.
On the same day, the court, in a unanimous vote, directed de Lima and Bureau of Immigration (BI) Commissioner Ricardo David to show cause why they should not be held in contempt for failure to comply with the court's TRO.
On the other hand, voting 9-4, the court also ordered de Lima to show cause why she should not be held in contempt for showing disrespect for the court.
Marquez said under the rules, indirect contempt of court is punishable with a fine of P30,000 or a six-month imprisonment or both.
Tomorrow, the court will hold an oral argument on the petitions filed by the Arroyos questioning the constitutionality of DoJ Circular No. 41 which gives the Justice Secretary the authority to issue WLO and hold departure order (HDO). Marquez said other related motions and manifestations will also be discussed during the oral argument.
Sen. Aquilino Pimentel III, meanwhile, threw his full support behind De Lima in her efforts to pursue the prosecution of former Mrs. Arroyo for plunder and electoral sabotage.
"I unequivocally support Secretary De Lima, for she had prevented Arroyo from leaving for abroad and escaping prosecution. She should be commended instead of reproached for upholding justice and the rule of law," Pimentel said.
At the same time, Pimentel commended Associate Justice Ma. Lourdes Sereno for her dissenting opinion on the TRO issuance by the SC.
Sereno had argued that the Nov. 15 TRO had remained ineffective because the Arroyo couple had failed to comply with Condition No. 2 — that "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."
Sereno averred that "the TRO is conditional, and cannot be made use of until compliance has been done. …(As) there was failure by petitioners to comply with Condition No. 2, the TRO is implicitly deemed suspended until there is compliance with such condition. A conditional TRO is what it is, conditional."
Pimentel said: "With all due respect to the Supreme Court, I believe that it should desist from citing Secretary de Lima for contempt for allegedly ignoring the TRO they issued against the enforcement of the watchlist order on Arroyo."
"Secretary De Lima was well within her mandate and prerogative as head of the Justice Department to insist that the right to travel is not absolute. Even before the Supreme Court issued its TRO, there were already six plunder complaints filed against Arroyo with the Office of the Ombudsman and another complaint for electoral sabotage with the DoJ and the Comelec," Pimentel pointed out.
The senator said that "to have allowed Arroyo to leave for abroad would have been tantamount to abdicating Secretary De Lima's duty to uphold the rule of law in the country."
Pimentel also praised Associate Justice Antonio Carpio who had also expressed a dissenting opinion. Carpio emphasized that "While the right to travel is a constitutional right that may be impaired only 'in the interest of national security, public safety or public health, as may be provided by law,' there are recognized exceptions other than those created by law. Foremost is the restriction on the right to travel of persons charged of crimes before the courts."
Carpio noted that the Arroyo couple were "already undergoing preliminary investigation in several criminal cases" and that "in fairness to the government which is tasked with the prosecution of crimes, the Supreme Court must hear first the government in oral argument before deciding on the temporary restraining order which if issued could frustrate the government's right to prosecute."
"I believe that Secretary De Lima acted completely within the ambit of her authority and did not intend to show any disrespect for the high tribunal as all she wanted was to serve the ends of justice," Pimentel said.
Arroyo doesn't expect fair trial, says counsel 11/21/2011
The camp of former President Arroyo claimed Mrs. Arroyo is being "persecuted" and will not receive a fair trial after she was arrested for allegedly rigging elections.
Arroyo's counsel Ferdinand Topacio dismissed assurances from President Aquino that the ailing Arroyo will be treated fairly, saying the government was determined to victimize the former president.
"There is a pall of gloom about her because of what has happened. She is being persecuted and it is taking a toll on (her) health," Topacio said.
Topacio added the case against Arroyo was "railroaded" and the former president's rights were being violated.
"They will now pull all stops to prevent our client from getting a fair trial," he said.
Arroyo, who is confined at the St. Luke's Hospital in Taguig with
a rare bone disease, has lost her appetite and is suffering an intestinal infection, he said, adding: "Her condition is not improving at all."
Arroyo was arrested in her hospital bed on Friday on non-bailable charges of tampering with senatorial elections in 2007 to help a political ally. If convicted, she could face life in jail.
The former president sought to travel abroad last week for medical treatment but the Aquino government blocked her departure, saying she might flee charges of vote fraud and corruption.
The Supreme Court had ruled on Tuesday that Arroyo could leave the country for treatment but government personnel blocked the wheelchair-bound former leader at the airport.
Justice department and election officials then speedily prepared the criminal charge which was used to keep her from travelling.
Other corruption charges against her are being prepared but have not yet been filed in court.
Aquino, who returned from an international summit in Indonesia late Saturday, hailed the arrest, saying it was just the first step in a wider campaign against corruption.
"This is just the start of the process," Aquino said.
"No one should be spared in the search for the truth and in punishing the guilty."
Another Arroyo lawyer, Raul Lambino, reiterated that motions would be filed with the Supreme Court and other tribunals questioning the legality of Arroyo's arrest.
Supreme Court spokesman Midas Marquez said the court could still rule that procedures used to charge Arroyo were unconstitutional, nullifying her arrest.
"If that (charge) is adjudged as unconstitutional then of course all the proceedings... would have to be nullified, but again we have to wait for the decision of the court," he said.
Arroyo, who was in office from 2001 to 2010, was repeatedly accused of vote fraud and massive corruption but efforts to charge her were blocked.
After her term ended, she was replaced by arch-rival Aquino who has sworn to bring her to justice as part of a wider crackdown on corruption.
The Palace maintained Arroyo will receive the due process of law even as deputy presidential spokesman Abigail Valte said that the administration will prosecute the case to the best of their abilities.
"Again, it's not against a particular person. The cases are filed based on the evidence presented in the preliminary investigations. We cannot speak for the Office of the Ombudsman which is also hearing, investigating several complaints against the former President and the former first gentleman. Any form of cases filed against a former government official will be based entirely on the pieces evidences presented," she said.
Valte said they do not know if the case will be resolved within President Aquino's term because this is something not completely within the control of the executive.
"But at least for the part of the executive, we will avoid unnecessary and undue delays on our part. We have another branch of government that is in play and it would be up to the court that will handle the case to decide on this," she added.
As to Mrs. Arroyo's detention arrangement, Valte said the Palace will have to defer to Justice Secretary Leila de Lima, but she said they will have to wait for the Regional Trial Court's (RTC) decision to resolve the motion to be filed by the Arroyo camp. Reports have surfaced that the Southern Police district has prepared an airconditioned detention cell for Mrs. Arroyo.
It was also reported that some militant groups have protested against the special treatment accorded to Mrs. Arroyo and asked for her transfer to a detention cell. Sen. Jinggoy Estrada also complained about the hospital arrest of Mrs. Arroyo in St. Luke's hospital as she should be confined in a government hospital like his father, former President Joseph Estrada.
Valte said that is a matter under the jurisdiction of RTC Pasig and that is proposition the camp of Arroyo would have to make. "What happened was when the warrant was served, even the doctors of the former President said that her medical condition was sensitive so she was allowed to stay at the hospital last Friday. The next days were weekends so no motion has been filed about this yet," she said.
She added that the move will be up to the camp of former President Arroyo today to ask for her detention arrangements because it is not the executive's position to give the particular point.
"The camp of (Arroyo), her representation will have to seek the approval of the (court) on the matter of the hospital arrest," she noted.
"Any statement of the medical condition of Rep. Arroyo will have to come from the doctors, not from the lawyers of spokespersons," Valte added. She added there no details if President Aquino will personally visit the former President.
When asked if this is a Karma (divine justice) in play on Rep. Arroyo, Valte only said "that is something the people to decide."
The Arroyo camp questioning the Pasig RTC's jurisdiction over the case is a legal opinion coming from the defense that would have to be issued and ventilated to the RTC, Valte said.
Meanwhile, the Palace spokesperson said the warrant of arrests for the others, like former Comelec chairman Benjamin Abalos involved in the case have already been served.
Amid the word war between the camps of Arroyo and her critics, a ranking member of the House of Representatives yesterday called on the warring parties to desist from debating on the merits of the "electoral sabotage" case that is now pending before the sala of Judge Jesus Mupas of the Pasay City Regional Trial Court. Benjamin B. Pulta, Danessa O. Rivera, AFP
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