Philippine Supreme Court Resolutions > Year 2011 > December 2011 Resolutions > [G.R. No. 199034 : December 13, 2011] 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. [ G.R. NO. 199046. DECEMBER 13, 2011 ] 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. SEPARATE OPINION :

I write this Separate Opinion to reflect my view and explain my vote on the deliberation of the Court En Banc on November 18 and 22, 2011 on the issue of non-compliance with the GMA TRO.

On November 15, 2011, the Court issued a Temporary Restraining Order (TRO) in favor of the petitioners. The TRO in its relevant portion state: 

x x x 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 and its supporting rights, including the right to travel - the Court resolved to: 

  x x x x 

(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:

x x x x

In the special En Banc meeting of November 18, 2011, Justice Antonio T. Carpio brought to the attention of the Court the petitioners' failure to comply with the second condition, specifically with the appointment of a legal representative with full authority to receive  summons and other court process during their absence. The legal representative was merely capacitated to "produce," not receive summons.

As a result of the observation, the Court issued another Resolution stating that - 

  The Court further resolved to: 

  x x x x 

(g) NOTE the Special Power of Attorney dated November 15, 2011 executed by Gloria Macapagal-Arroyo, appointing Atty. Ferdinand Topacio as her legal representative in compliance with the resolution of November 15, 2011. She shall commit to the Court that she shall instruct her legal representative to amend [the Special Power of Attorney] to state: "to receive summons or documentary evidence" and forthwith submit this compliance with the Court.

On the same day, November 18, 2011, Atty. Topacio complied with the above Resolution by filing a Supplemental Compliance. 

Despite the compliance, the Court still faced two questions relating to the petitioners' failure to comply. 

The first was the question of whether indeed there had been failure to comply. The second was the effect of this failure if there had been such a failure. 

I voted in the negative on the first question in light of the terms of the TRO. While the compliance with the second condition might have been lacking on November 18, 2011, to conclude that total failure had taken place was premature; the TRO imposed on the petitioners a period of five (5) days from notice within which to comply and the period had not lapsed on November 18, 2011 since service of the TRO was only on November 15, 2011. Indeed on the same day � November 18, 2011 � the petitioners made good on this lapse. Thus, to me, a negative vote in the November 18, 2011 meeting was the necessary conclusion because of the prematurity of determining whether complete failure to comply had taken place. 

The answer to the second question flows from the first and also from the express terms of the TRO. By its express terms, the TRO was immediately executory, subject to automatic lifting if failure at compliance takes place. In other words, the TRO was to be immediately effective particularly during the five-day period of the petitioners' compliance with the conditions. My vote, therefore, had likewise to be in the negative, subject to the failure to comply with the condition within the five-day compliance period. 

In these lights, I see no problem in the full effect of the TRO - without need of suspending its effects - because of the petitioners' initial, but immediately remedied, lapse. 

Submitted for the En Banc's consideration.cralaw