MANILA, Philippines - Supreme Court (SC) Associate Justice Maria Lourdes Sereno is of the belief former President and now Pampanga Rep. Gloria Macapagal Arroyo and her husband, Mike, failed to satisfy evidentiary requirements for a temporary restraining order (TRO) that may be issued ex-parte, meaning, minus the side of the Department of Justice (DOJ) and Bureau of Immigration (BI) -- respondents in consolidated petitions they filed with the Supreme Court (SC) assailing a watch list order (WLO) that covers them.
In her 11-page dissenting opinion, Sereno, an appointee of Pres. Benigno Aquino III, and one of five dissenters on the issuance of the TRO, said the Rules of Court and jurisprudence dictate extremely strict requirements before the temporary relief may be issued which include verification of the application.
Sereno stressed that Mrs. Arroyo appears to have given "inconsistent, and probably untruthful statements" before the high court.
"So strong is the requirement of truthful allegations in pleadings filed before the court that many adverse inferences and disciplinary measures can be imposed against a person lying before the court... When on its face, the material averments of a pleading contain self-contradictions, the least that the court should do, is consider the other side of the claim," Sereno's dissenting opinion read.
Sereno cited Mrs. Arroyo's main petition for certiorari and prohibition which claims that the latter's inability "to leave for abroad to alleviate, or at least, prevent the aggravation of her hypoparathyroidism and metabolic bone disorder has given rise to the danger that said conditions... may become permanent and incurable."
Sereno pointed out that the above declaration was in contradiction with an attached certification issued by Mrs. Arroyo's attending physician, Dr. Juliet Gopez-Cervantes, which stated that "petitioner (Mrs. Arroyo) should fully recover from her spine surgery in six to eight months, barring any complications."
This finding, Sereno noted, was the same as that of Dr. Mario Ver who performed the series of spinal surgeries on Mrs. Arroyo. "[H]er own attachments belie the immediate threat to life she claims," the opinion read.
'Not just for medical reasons'
Sereno also sided with the DOJ in its assertion that Mrs. Arroyo's itinerary abroad appeared "not solely for medical reasons" as claimed by Mrs. Arroyo since the latter was also scheduled to participate in two conferences abroad during the "supposed medical tour."
"If there is indeed some medical urgency and necessity for petitioner to travel abroad, these should logically be limited only to locations where she seeks medical advice from known experts in the field. Why then should there be other countries of destinations that are included in her travel authority but not specifically mentioned for purposes of medical consultations? What is the non-medical purpose of her visit to these other countries?" Sereno noted.
"If she has been shown to be prone to submitting to this court documents belying her own allegations, this court must pause, and at the very least, listen to the side of the government," the opinion read.
Hear government's side first
Sereno thus supported the position of the DOJ and immigration bureau that their side must first be heard and oral arguments conducted before any action on the Arroyos' TRO should be taken.
And while she upholds the presumption of innocence against the Arroyos at this stage of the criminal proceedings against them pending before government instrumentalities, Sereno said this did not mean that the state should be deprived to present its arguments on whether it has the right and authority to bar persons under preliminary investigation from traveling abroad.
She also stressed that Mrs. Arroyo "must explain why she is claiming that her constitutional right is being violated, when the claimed violation is being caused by her own administrative issuance" -- DOJ Department Circular (DC) No. 41.
Sereno said the doctrine on estoppel should be considered by the high court.
"In its simplest sense, estoppel prevents a person from disclaiming his previous act, to the prejudice of another who relied on the representations created by such previous act.
"The logic behind the doctrine comes from the common societal value that a person must not be allowed to profit from his own wrong," the opinion read.
Hear gov't side first
Sereno said that the high court has to exercise fairness, which requires that the government must be heard.
"Petitioner Arroyo comes before this court assailing the constitutionality of the said circular (DC No. 41), which was issued by Alberto Agra, the justice secretary appointed by petitioner during her incumbency as president. This circular bears the stamp of petitioner as president ordering the consolidation of the rules governing watch list order.
"Under the doctrine of qualified political agency, the acts and issuances of Agra are acts of the president... Thus, the acts which petitioner claims to have violated her constitutional rights are the acts of her alter ego, and consequently, her own," the opinion read.
Sereno also pointed out that the high court should give due consideration to the question posed by government -- is the Arroyos' plea for TRO driven by their desire to evade prosecution in the Philippines?
Sereno said that if the risk of flight is high, the high court must either deny their right to travel, or allow travel subject to restrictions.
While others may insist that there are measures available to the state in compelling the Arroyos to return in the event they attempt to evade the charges against them, Sereno noted the Philippines' failure in several international campaigns such as the recovery of the Marcos ill-gotten wealth, or to effect the arrest of criminal escapees.
She said these processes are at times, "illusory."
Sereno also pointed out the high court's strict regulations on the foreign travels of its own personnel where all court personnel are required to secure a travel authority or face disciplinary action before the Office of the Court Administrator (OCA). She said the high court has held personnel administratively liable for traveling without the court's authority.
"That means that the pendency of even an administrative case is sufficient basis to deny the right to travel of court employees," the opinion read.
"It appears that the court, by its own administrative actions, has acknowledged the state's limited power to abridge the right to travel. At the very least, therefore, the state must be heard on the extent of this limited power to regulate the right to travel," the opinion read.
The Supreme Court, on Tuesday, voted 8-5 to issue a temporary restraining order on a watch list order issued by the Department of Justice against Mr. and Mrs. Arroyo. The couple faces corruption complaints filed before the Department of Justice and the Ombudsman. A complaint for electoral sabotage has also been filed against Mrs. Arroyo.