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EN BANC

G.R. No. 199034 GLORIA MACAPAGAL ARROYO, Petitioner, v.

HON. LEILA M. DE LIMA, in her capacity as SECRETARY OF

JUSTICE, ET AL., Respondents.

G.R. No. 199046 JOSE MIGUEL T. ARROYO, Petitioner, v.

SECRETARY LEILA M. DE LIMA, in her capacity as SECRETARY

OF JUSTICE, ET AL., Respondents.

Promulgated:

November 15, 2011

x-----------------------------------------------------------------------------------------x

DISSENTING OPINION

REYES, J.:

I DISAGREE with the majority's decision to issue a Temporary

Restraining Order (TRO) against the enforcement of the Department of

Justice's (DOJ) Department Circular No. 411, Watchlist Order2 dated August

9, 2011, Amended Order3

dated September 6, 2011, and Watchlist Order4

dated October 27, 2011.

It is well-settled, to the point of being axiomatic, that any injunctive

relief will not be issued if it will result to a premature disposition or a

prejudgment of the case on its merits. Also, any application for the restrainton the performance of an act will not be given due course if it will presume

the validity of petitioners claims, relieving them of the burden of proving

the same. In Boncodin v. National Power Corporation,5

this Court reversed

the trial court's issuance of an injunctive writ that caused the burden of proof

to shift from the claimant to the defendant:

By issuing a writ premised on that sole justification, the trial courtin effect sustained respondent's claim that [the] petitioner and Auditor

1 Rollo of G.R. No. 199034, pp. 59-61.2 Id. at pp. 45-46.3 Id. at pp. 47-48.4 Id. at pp. 49-58.5 G.R. No. 162716, September 27, 2006, 503 SCRA 611.

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Dissenting Opinion 2 G.R. No. 199034 & 199046

Cabibihan had exceeded their authority in ordering the suspension of theimplementation of the step increments; and that the suspension was

patently invalid or, at the very least, that the memorandum and circular

were of doubtful validity. Thus, the lower court prejudged the main caseand reversed the rule on the burden of proof, because it assumed to be true

the very proposition that respondent-complainant in the RTC was duty-bound to prove in the first place.6

Similarly, in Valley Trading Co., Inc. v. Court of First Instance of

Isabela, Branch II, et al.7, this Court observed the same principle and

emphatically stated that an injunctive relief will not issue if the applicant's

allegations fall short of overcoming the presumption of validity in favor of

the law:

Equally pertinent is the rule that courts should avoid issuing a writof preliminary injunction which, in effect, would dispose of the main case

without trial. In the present case, it is evident that the only ground relied

upon for injunction relief is the alleged patent nullity of the ordinance. Ifthe court should issue the desired writ, premised on that sole justification

therefor of [the] petitioner, it would be a virtual acceptance of his claim

that the imposition is patently invalid or, at the very least, that theordinance is of doubtful validity. There would, in effect, be a prejudgment

of the main case and a reversal of the rule on the burden of proof since itwould assume the proposition which the petitioner is inceptively duty

bound to prove.

Furthermore, such action will run counter to the well settled rulethat laws are presumed to be valid unless and until the courts declare the

contrary in clear and unequivocal terms. A court should issue a writ of

preliminary injunction only when the petitioner assailing a statute hasmade out a case of unconstitutionality or invalidity strong enough to

overcome, in the mind of the judge, the presumption of validity, aside

from a showing of a clear legal right to the remedy sought.8

x x x.

In ABAKADA Guro Party List, et al. v. Hon. Purisima, et al.,9

this

Court extended the presumption of validity accorded to legislative issuances

to rules and regulations issued by administrative agencies:

Administrative regulations enacted by administrative agencies toimplement and interpret the law which they are entrusted to enforce have

the force of law and are entitled to respect. Such rules and regulationspartake of the nature of a statute and are just as binding as if they havebeen written in the statute itself. As such, they have the force and effect of

6 Id. at p. 629.7 G.R. No. 49529, March 31, 1989, 171 SCRA 501.8 Id. at pp. 507-508.9 G.R. No. 166715, August 14, 2008, 562 SCRA 251.

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testimony to the presumption of validity accorded to Department Circular

No. 41 and the Watchlist Order issued pursuant to its provisions, considering

that the TRO was issued not because of the supposed infringement on Mr.

Arroyos right to travel but because of the DOJ's clear deviation from the

provisions of Department Circular No. 41. Under Section 2 of the Circular, it

is only in the following instances that a Watchlist Order can be issued

against any person: (a) there is a criminal case pending against him before

any court within this jurisdiction; (b) there is a criminal case against him

pending preliminary investigation, petition for review or motion for

reconsideration before the DOJ or any of its prosecution offices; and (c) the

Secretary of Justice deems it proper motu proprio or upon the request

submitted by any government agency, commission, task force or similar

offices created by the Office of the President under Republic Act No. 9208

in connection with an investigation it is conducting and/or in the interest of

national security, public safety or public health. Evidently, that there was a

restraint on Mr. Arroyo's right to travelper se is insufficient to overcome the

presumption of constitutionality against the Circular such that what moved

the Court to rule in Mr. Arroyos favor was the dubiety of whether an

investigation conducted by the Senate may be a ground to issue a Watchlist

Order.

The contrary clearly obtains in this case. The petitioner Gloria

Macapagal Arroyo (GMA) is subject of a preliminary investigation in three

(3) cases pending before the DOJ: (a) Danilo Lihayhay v. Gloria

Macapagal-Arroyo (Docket No. XVI-INV-10H-00251); (b) Francisco I.

Chavez v. Gloria Macapagal-Arroyo, et al. (Docket No. XVIX-INV-11D-

00170); and (c) Francisco I. Chavez v. Gloria Macapagal-Arroyo, et al.

(Docket No. XVI-INV-11F-00238). She is likewise subject of a preliminary

investigation by DOJ-Commission on Elections (COMELEC) Fact-FindingCommittee for electoral sabotage and violation of the Omnibus Election

Code in DOJ-COMELEC Fact Finding Committee v. Abalos, Sr., et al.

(DOJ-COMELEC Case No. 001-2011) and Aquilino Pimentel III v. Gloria

Macapagal-Arroyo, et al. (DOJ-COMELEC Case No. 002-2011). Mr.

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Arroyo, on the other hand, is also being investigated by the DOJ-COMELEC

Fact-Finding Committee for the electoral sabotage complaint filed by Sen.

Aquilino Pimentel III. A cursory reading of Sections 2 (c) of Department

Circular No. 41 shows that the issuance of a Watchlist Order is allowed

under such circumstances, suggesting that the Secretary of Justice acted

within the confines thereof, and this, in turn, supports the observance of the

rule on the presumption of regularity.

Also, this is a petition for certiorari under Rule 65 of the Rules of

Court, an exercise of the remedy against grave abuse of discretion or lack of

jurisdiction. Grave abuse of discretion is defined as the capricious and

whimsical exercise of judgment as is equivalent to lack of jurisdiction. Mere

abuse of discretion is not enough. It must be grave abuse of discretion as

when the power is exercised in an arbitrary or despotic manner by reason of

passion or personal hostility, and must be so patent and so gross as to

amount to an evasion of a positive duty or to a virtual refusal to perform the

duty enjoined or to act at all in contemplation of law.11

The burden of proof

is on the petitioners part to demonstrate that the assailed issuances were

issued with grave abuse of discretion or without jurisdiction. The grant of

the petitioners prayer for TRO presupposed that the DOJ had indeed acted

capriciously, whimsically or outside the boundaries of its vested jurisdiction

on the basis of mere allegations.

A cursory examination of the Petition and the attachments thereto

easily reveals that she failed to demonstrate the existence of the following

requisites for the issuance of an injunctive writ: (a) the applicant must have a

clear and unmistakable right to be protected, that is, a right in esse; (b) there

is a material and substantial invasion of such right; (c) there is an urgent

need for the writ to prevent irreparable injury to the applicant; and (d) thereis no other ordinary, speedy and adequate remedy to prevent the infliction of

irreparable injury. Even on the assumption that GMA has a clear and

11 Marcelo G.Ganaden, et al. v. Hon. Office of the Ombudsman, et al., G.R. Nos. 169359-61, June 1,

2011.

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unmistakable right to be protected, the documents attached to her Petition

belie her claim of urgency for the issuance of a TRO.

There is nothing in the medical certificate, dated October 1, 2011

issued by Dr. Juliet Gope-Cervantes and dated October 24, 2011 issued by

Dr. Mario R. Ver, which would indicate that GMA would suffer irreparable

injury in the event she is disallowed from seeking medical treatment abroad.

Thus:

Ms. Macapagal-Arroyo has metabolic bone disease and

osteoporosis due to Hypoparathyroidism with electrolyte imbalance andVitamin D deficiency. The Minerva Brace should remain in place for at

least three months, and barring any complications she should be fully

recovered from her spine surgery in six to eight months. Her metabolic

bone disease needs lifetime maintenance treatment.12

x x x

Her last follow-up on October 20, 2011 showed better evidence on

X Ray of bone growth taking place in the anterior column such that thehead band part of Lehrman Minerva brace was removed. Immobilization

is now down to SOMI (Sterno-Mandibular-Occipito Immobilization)

brace. She has continued her Physical therapy as out patient. Her serum Ca

and Vitamin D were normal with the maintenance medication given butthe parathyroid hormone remain deficient.

The SOMI brace is planned to be shifted to Miami J collar on hernext follow up on November 8, 2011, that is 11 to 12 weeks post-anterior

column reconstruction.13

The medical certificate dated October 22, 2011 issued by Dr. Roberto

Mirasol is also of the same tenor:

Once she was metabolically stable she underwent another surgery anterior fusion with titanium mesh and bone grafts. She gradually

improved. Repeated calcium and magnesium determinations were done

and corrected. Repeated iPTH determinations were consistentlysuppressed. She was discharged improved with advice to keep a high

calcium diet, continue taking her calcium, magnesium and vitamin D

supplements.14

From the foregoing, it appears that the medical attention being

received by GMA is adequate as she is out of danger and her condition is

12 Rollo, p. 67.13 Id. at p. 69.14 Id. at p. 86.

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continuously improving. Her claim of urgency and life-threatening

conditions is, at the very least, debatable and this should have militated

against the issuance of a TRO. Prudence and to avoid prejudging the case on

its merits, giving the Government an opportunity to be heard is definitely not

much too ask.

On the other hand, if it was the petitioners right to life and the threat

posed thereto by the assailed issuances that was foremost in the majoritys

mind when they decided to issue the TRO, there would have been no basis to

issue a TRO in Mr. Arroyos favor as there is nothing in his Petition where it

was alleged that his right to life was being threatened or endangered. In his

earlier Petition, Mr. Arroyo was invoking for his right to travel in his earlier

Petition. It is no different in this present Petition; only that, the Watchlist

Order he is now attacking as unconstitutional is based on his being

preliminarily investigated by the DOJ-COMELEC Fact Finding Committee.

However, the issuance of a Watchlist Order on this ground is allowed under

the Circular; thus, the basis for the Courts issuance of a TRO in Mr.

Arroyos first Petition does not exist in this case. If the infringement of his

right to travel was not enough for this Court to issue a TRO in Mr. Arroyos

first Petition, it is certainly confounding as to why it is different in this case.

Finally, in Ermita v. Hon. Jenny Lind R. Aldecoa-Delorina, et al.,15

this Court, emphatically stated that the judicial power to enjoin the

implementation of an official issuance, which enjoys the presumption of

validity, must be wielded and exercised with extreme caution, thus:

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 itis the Government which is being enjoined from implementing an issuance

which enjoys the presumption of validity, such discretion must beexercised 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

15 G.R. No. 177130, June 7, 2011.

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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.

x x x

The possible unconstitutionality of a statute, on its face,

does not of itself justify an injunction against good faith

attempts to enforce it, unless there is a showing of bad

faith, harassment, or any other unusual circumstance

that would call for equitable relief. The "on its face"

invalidation of statutes has been described as "manifestlystrong medicine," to be employed "sparingly and only as a

last resort," and is generally disfavored.

I believe that this Court should have exercised the same

circumspection and caution. It may be argued that the constitutionality of the

assailed issuances had not been prematurely determined by the majority's

decision to issue the TRO. However, common sense dictates that granting

the TRO and granting this Petition lead to the same result: the petitioners

may leave the country anytime they wish and a cloud is cast over the

constitutionality and validity of the assailed issuances.

In conclusion, and in view of the foregoing, it is my position that it is

best to require the respondents to file a comment on the petitions, and hear

them out in oral argument, instead of issuing a TRO ex parte.

IN VIEW THEREOF, I vote to: (a) defer action on the prayer for a

TRO; (b) order the public respondents to Comment on the consolidated

Petitions on or before November 21, 2011; and (c) set the case for oral

arguments on November 22, 2011 at 2:00 p.m.; and (d) immediately after the

conduct and conclusion of the oral arguments, resolve the issue of whether

or not a temporary restraining order may be issued.

BIENVENIDO L. REYES

Associate Justice

199034_199046_reyes

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