EN BANC

G.R. No. 199034 (Gloria Macapagal-Arroyo vs. 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) and G.R. No. 199046 (Jose Miguel T.
Arroyo vs. 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)

Promulgated:

December 13, 2011

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

SEPARATE OPINION

VELASCO, JR., J.:

This is in response to the Dissenting Opinions of Justices Antonio T. Carpio and Maria
Lourdes P.A. Sereno in relation to the Temporary Restraining Order (TRO) issued by
the Court on November l5, 2011 pursuant to its Resolution of even date. In its relevant
part, the November 15, 2011 Resolution provided as follows:

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 (which is the highest right under the
Constitution) and its supporting rights, including the right to travel the
Court Resolved to

(a) CONSOLIDATE the above-entitled cases;

(b) REQUIRE the respondents to COMMENT on the consolidated

petitions NOT LATER THAN NOVEMBER 18, 2011;

(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:

(i) The petitioners shall post a cash bond

of Two Million Pesos (P2,000,000.00) payable to this Court
 within five (5) days from notice hereof. Failure to post the
bond within the aforesaid period will result in the automatic
lifting of the temporary restraining order;

(ii) 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. The petitioners shall submit the name
of the legal representative, also within five (5) days from
notice hereof; and

(iii) If there is a Philippine embassy or

consulate in the place where they will be traveling, the
petitioners shall inform said embassy or consulate by
personal appearance or by phone of their whereabouts at
all times; and

(d) SET the consolidated cases for ORAL ARGUMENTS on

November 22, 2011 x x x.
xxxx

The temporary restraining order shall be immediately executory.

Justices Antonio T. Carpio and Bienvenido L. Reyes have reserved the
right to submit their dissenting opinions. Leonardo-De Castro, J., on
official business. Del Castillo, J., on official leave. (adv156 & 157)

The above Resolution was followed by the related November 18, 2011 and November
22, 2011 Resolutions, pertinently reading:

November 18, 2011 Resolution

On November 15, 2011, the Court issued a temporary restraining

order enjoining Secretary of Justice Leila M. De Lima, her agents,
representatives, or persons acting in her place or stead, 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. To date, it appears that Secretary
De Lima has effectively prevented petitioners Gloria Macapagal-Arroyo
and Jose Miguel T. Arroyo from leaving the country.

Accordingly, on motion of the petitioners, the Court Resolved to

require Secretary De Lima to (a) SHOW CAUSE, within a NON-
EXTENDIBLE period of ten (10) days from notice hereof, why she should
not be disciplinary dealt with or held in contempt for failure to comply
with the temporary restraining order and (b) IMMEDIATELY
 COMPLY with the said temporary restraining order by allowing
petitioners to leave the country.

November 22, 2011 Resolution

On November 18, 2011, the Court, by a vote of 7-6, found that

there was no sufficient compliance with the second condition of the
Temporary Restraining Order issued on November 15, 2011. However, by
a vote of 7-6, the Court ruled that the TRO was not suspended pending
compliance with the second condition. Thus, the Court resolved
to CLARIFY that the TRO was not suspended even with the finding that
there was no full compliance with the conditions of the TRO.

The Court further Resolved to

(a) REQUIRE the petitioners to COMMENT, within ten

(10) days from today, on the Urgent Manifestation with Motion to
Lift Temporary Restraining Order dated November 18, 2011 filed
by the Office of the Solicitor General (OSG) for public respondents
[x x x];

(b) NOTE the Supplemental Compliance dated November

18, 2011 filed by Atty. Ferdinand S. Topacio, submitting the
Special Powers of Attorney from Mrs. Gloria Macapagal Arroyo and
Mr. Jose Miguel Arroyo pursuant to the resolution dated
November l8, 20ll;

(c) NOTE the aforesaid Special Powers of Attorney

authorizing him, among others, to receive summons, subpoenas,
orders and other legal processes, and to submit documentary
evidence.

In its En Banc session of November 29, 2011, the Court revoted on the issue of
whether or not the TRO was suspended pending compliance by the petitioners of
condition (ii) on the requirement to appoint their legal representative. This issue was
no longer reflected in the adverted November 22, 2011 Resolution.

Unpromulgated Dissenting Opinion of Justice

Sereno filed late and in contravention of Section
2, Rule 10 of the Internal Rules of the Supreme
Court (IRSC)
When, as earlier indicated, the En Banc Court conducted a revote on the question
bearing on the suspension of the TRO pending compliance with the appointment of
petitioners legal representative, a majority of 7 members categorically voted that the
TRO was not suspended. The revote, to stress, was held to clarify the correctness of
the directives contained in the Courts November 22, 2011 Resolution on the same
issue.

After the vote, Justice Sereno, when asked when she would submit her dissenting
opinion thereon, committed to do so on December 1, 2011, a self-imposed deadline. As
it turned out, her opinion was belatedly filed only on December 2, 2011 (a Friday) at 4
p.m. She did not even circulated a letter asking for an extension of time to submit her
opinion. Her late submission effectively prevented me from responding to her opinion
since I was already booked to leave for Jakarta on December 4, 2011 to attend the
ASEAN Chief Justices Roundtable on Environment. Accordingly, I requested Atty.
Enriqueta E. Vidal to hold in abeyance the promulgation of Justice Serenos opinion so
that the matter of the promulgation could be discussed in the December 6, 2011 En
Banc session. I could have had filed a separate opinion on her dissent had she filed it
on December 1, 2011. For then, I would have the rest of December 1 and the whole
day of December 2, 2011 to prepare and submit one.

There is yet another reason why I felt the dissent should not be promulgated until the
validity thereof is discussed by the En Banc. In my view, the disclosures made in
Justice Serenos dissent may constitute a breach of Sec. 2, Rule 10 of the IRSC which
reads:

Sec. 2. Confidentiality of court sessions.Court sessions are executive in

character, with only the Members of the Court present. Court
deliberations are confidential and shall not be disclosed to outside
parties, except as may be provided herein or as authorized by the
Court.

The Chief Justice or the Division Chairperson shall record the action or
actions taken in each case for transmittal to the Clerk of Court or
Division Clerk of Court after each session. The notes of the Chief Justice
and the Division Chairperson, which the Clerk of Court and the Division
Clerks of Court must treat with strict confidentiality, shall be the bases
of the minutes of the sessions.
The following confidential matters, discussed during the November 18, 2011 session,
are embodied in the Dissenting Opinion of Justice Sereno promulgated on the same
date, to wit:

1. At this mornings special session called exclusively to deliberate on the

pending incidents in the above-consolidated Petitions, the Court voted on
several matters:

The first voting was on whether the Resolution dated 15 November 2011
granting the prayer for Temporary Restraining Order (TRO) by petitioners
is to be reconsidered or not. The justices who voted on the 15 November
2011 Resolution maintained the same vote, 8-5.

The issue in the second voting, proposed by one of the members of

the Court, was on whether the TRO issued by the Clerk of Court should
be recalled for failure to comply with one of the conditions, Condition
Number 2, imposed for the issuance of the TRO. Condition No. 2 reads:

(ii) 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. The petitioners shall submit the name of the
legal representative, also within five (5) days from notice
hereof; (Emphasis supplied.)

On this matter, the voting was 76[1] finding that there was no
compliance with the second condition of the TRO.

The third voting proceeded from the result of the second voting
whether, considering that the Court found that there was a failure to
comply with a condition imposed by the earlier resolution, the Court
should explicitly state that the TRO was thereby suspended in the
meantime pending compliance with Condition Number 2. The Court, by a
vote of 7-6, decided there was no need to explicitly state the legal effect
on the TRO of the noncompliance by petitioners with Condition Number
2 of the earlier Resolution.

The fourth vote that was taken was on whether the Court would
direct public respondents to show cause why they should not be held in
contempt for failure to comply with the TRO and to comply therewith.
The vote was unanimous.

The fifth vote was on whether public respondent DOJ Secretary

should be ordered to also show cause why she should not be held in
contempt for showing disrespect for the Court. The voting on this was 9-
4.
 The sixth voting was on whether to reset the schedule of the oral
arguments. This was unanimously denied.[2]

2. The Court, motu proprio, even without the motion from petitioners
herein, is ordering public respondent De Lima to show cause why she
should not be held for indirect contempt by showing disrespect to the
Court. The majority has explained that this order is anyway, to just
require an explanation from her, and is thus not out of the ordinary.[3]
3. The majority, by a 7-6 voting, denied the minoritys proposition that a
resolution be issued including a phrase that the TRO is suspended
pending compliance with the second condition of the 15 November 2011
Resolution. The majority argued that such a clarification is unnecessary,
because it is clear that the TRO is conditional, and cannot be made use
of until compliance has been done. It was therefore the sense of the
majority that, as an offshoot of the winning vote that there was failure by
petitioners to comply with Condition Number 2, the TRO is implicitly
deemed suspended until there is compliance with such condition.
Everyone believed that it would be clear to all that a conditional TRO is
what it is, conditional.[4]
4. Contrary to this interpretation, as stated, it was the understanding of
a majority that the TRO is suspended pending compliance with our
earlier Resolution.[5]

On the other hand, the unpromulgated dissenting opinion of Justice Sereno contained
the following confidential matters:
1. To recall, my Dissenting Opinion of 18 November 2011 consisted of
two parts: (1) a narration of the voting that took place in the morning;
and (2) the reason why my Dissent to the Decision of the majority to
grant the temporary restraining order (TRO) in favor of petitioners
continues.[6]

2. What took place in the En Banc morning sessions of the 15 th, 18th,
and 22nd of November 2011 has been placed on record by Justice
Antonio T. Carpio in a letter to Chief Justice Renato C. Corona and
circulated to all the members of the Court on the morning of 24
November 2011.

The letter reads:

24 November 2011

The CHIEF JUSTICE

Supreme Court

May I suggest that the issuance of the attached Resolution dated 22

November 2011, which is supposed to clarify the Resolution dated 18
November 2011, be held in abeyance until the En Banc has a chance to
go over the same. Instead of clarifying the Resolution dated 18 November
 2011, the attached Resolution compounds the error in the Resolution
dated 18 November 2011. (Underlining supplied)
You will recall that during the En Banc meeting last 18 November
2011,[7] the En Banc, after a long discussion, voted on the following
issues:

1. That petitioners did not comply with condition (ii) for

the issuance of the TRO (voting was 7-6 with Carpio,
Abad, Villarama, Mendoza, Sereno, Reyes and Bernabe
as the majority);

2. That there is no need to state in the Resolution that

the TRO is suspended until petitioners comply with
condition (ii), that is, petitioners will simply be directed
to comply with condition (ii) for the issuance of the TRO
(voting was 7-6, with Corona, Velasco, Brion, Peralta,
Bersamin, Abad, and Perez as the majority). This vote
was taken after Justice Abad stated that since condition
(ii) for the issuance of the TRO was not complied with,
there was no need to state that the TRO is suspended
since it is common sense that the TRO cannot take
effect unless all the conditions are satisfied. I had earlier
proposed that the Court recall the TRO for non-
compliance of condition (ii) but Justice Abads response
was that it need not be recalled because its effectivity is
deemed suspended pending compliance with condition
(ii). After all, Justice Abad said, it will take only 10
minutes for the amended Special Power of Attorney to be
submitted by Atty. Topacio.

However, the Resolution dated 18 November 2011 did not reflect

at all item 1. The Resolution merely stated that petitioners are directed to
comply with condition (ii) for the issuance of the TRO, which correctly
reflects item 2. Thus, in the En Banc meeting last 22 November 2011, I
suggested that the En Banc clarify the Resolution dated 15 November
2011 to reflect item 1 above. The En Banc agreed, and no one objected.
Justice Velasco was designated to draft the clarificatory Resolution.

x x x x[8]

Justice Carpios confidential letter aforementioned became part of the discussion

during the En Banc session on November 29, 2011 which ought not to be divulged to
the public.

3. The letter of Justice Carpio was taken up on the morning of 29

November 2011. While Justice Roberto A. Abad had argued on 18
November 2011 that the suspensive effect of non-compliance with
 condition (ii) need no longer be stated, as it is common sense, this time
he voted unequivocably that despite non-compliance with condition (ii),
the TRO is nevertheless not suspended.[9]

4. The voting taken on 29 November 2011 was of the same composition

as that of the 18 November 2011 voting. Justices Carpio, Abad, Martin S.
Villarama, Jr., Jose C. Mendoza, Maria Lourdes P. A. Sereno, Bienvenido
L. Reyes and Estela M. Perlas-Bernabe as the first majority group
maintain that there was no compliance with condition (ii). Then the
majority grouping shifted when Justice Abad − as he did on 18 November
− joined Chief Justice Corona and Justices Presbitero J. Velasco,
Jr., Arturo D. Brion, Diosdado M. Peralta, Lucas P. Bersamin, and Jose
P. Perez to comprise the majority. This time, however, the majority
categorically voted to declare the non-suspension of the TRO despite
non-compliance with condition (ii). There was therefore, in every sense of
the word, a revision of the second majority groups vote, which now has
the effect of reversing their earlier ruling. This is not strange, as any
clarification of an earlier vote can result in a very substantive revision of
that earlier vote. I requested two (2) days to write my Dissent.[10]

5. When the resolution came out, it was not, with all due respect, a fully
accurate reflection of what took place; thus, the sentences in my Dissent
advising the acting chief of the PIO to desist from interpreting our
actions, the letter of Justice Carpio, and the need for a re-voting by the
En Banc on 29 November 2011. This incident demonstrates an existing
gap between the actual discussion and the voting results that take place
in an En Banc session and their reflection in written form via an
unsigned resolution.[11]

Justice Serenos unpromulgated dissenting opinion appears to me as a clear breach of

Sec. 2, Rule 10 of the IRSC, which pronounces, in an unequivocal manner, that Court
deliberations are confidential and shall not be disclosed to outside parties, except as
may be provided herein (IRSC) or as authorized by the Court. The aforesaid excerpts
from the promulgated November 18, 2011 Dissenting Opinion and the unpromulgated
Dissenting Opinion of Justice Sereno are confidential matters taken up during the
November 18, 2011 and November 29, 2011 En Banc sessions. They cannot be
incorporated in an opinion of a member of the Court as this will be tantamount to a
proscribed disclosure to outside parties even if contained in an opinion. Justice
Sereno has not shown that such disclosure is allowed by any rule of the IRSC or
authorized by the Court.

More importantly, it is the Chief Justices task under Sec. 2, Rule 10 of the IRSC to
record the action or actions taken in each case. The notes of the Chief Justice shall be
the bases of the minutes of the session which, in turn, resolutions shall be predicated
upon. Nowhere in the Rules does it say that a member can incorporate the
deliberations in his/her opinion. This caveat is to obviate the possibility of conflicting
statements of facts that will likely arise especially if the member takes a contrary
position to that of the majority.Justice Sereno, by stating what are allegedly the result
of the deliberations of the En Banc and the votation on cases or incidents, appears to
encroach into the functions of the Chief Justice. This should not be countenanced as
once a vote is taken on an issue, the majority view then becomes that of the Court. To
say that such was not the case, as is the position of J. Sereno, would sow doubt and
suspicion on the veracity of the resolutions of the en banc as authenticated by the
Clerk of Court. Else the stability of judicial decisions and resolutions is compromised.
Accordingly, I recommend that the portions of the unpromulgated Dissenting
Opinion of Justice Sereno delving on what under the Rules are considered confidential
be expunged for being violative of Sec. 2, Rule 10 of the IRSC. In the same token,
confidential matters contained in this separate opinion should likewise be expunged in
the event the Court decides to adopt the recommendation herein made. It should be
made clear, however, that what impelled me to include matters in this opinion that
only members of the Court ought to know is to show that, should the dissenting
opinion of Justice Sereno be promulgated in its present form, it in itself is a departure
from the IRSC.

The TRO authorized by the November l5, 20ll

Resolution is immediately executory upon
compliance with the posting of the P2M bond.

The November 15, 2011 Resolution is clearThe temporary restraining order shall be
immediately executory. (Last paragraph, p. 3) This directive is qualified by item (c) of
the said Resolution which prescribed three (3) conditions:

i. the posting of the P2M bond within 5 days from notice otherwise the
TRO will be automatically lifted;

ii. the appointment of a legal representative who will receive subpoena,

orders and other legal processes during petitioners absence also within 5
days from notice; and
 iii. the petitioners shall inform said embassy of their whereabouts at all
times.

It is my view that petitioners are required only to post the bond of P2M to pave the way
for the issuance of the TRO. This is clear from the 2nd sentence of condition (i) that the
failure to post the bond within 5 days will result in the automatic lifting of the TRO.

While The Court ruled later in its November 22, 2011 Resolution that the
special power of attorney submitted by Atty. Topacio on November 15, 2011 was
insufficient, the TRO however remained effective by virtue of the submission of the
requisite P2M bond. It should be made abundantly clear that the qualification
respecting the automatic lifting of the TRO obtaining in condition (i) was not made to
apply to condition (ii), implying that non-compliance with the requirement on the
appointment of the legal representative will not result in the lifting of the TRO. The
matter of whether or not condition (ii) constitutes a condition precedent or a
subsequent condition, is now really of little moment. The important consideration is
that non-compliance with condition (ii) would not, under the very terms of the
enabling Resolution or the TRO itself, result in the automatic lifting of the restraining
order thus granted.

At any rate, on November 15, 2011, petitioners complied with conditions (i) and
(ii) and, as a result, the Office of the Clerk of Court issued the TRO pursuant to the
November 15, 2011 Resolution. The presumptive validity of the TRO must be
recognized, albeit the original special power of attorney accorded Atty. Topacio was
determined later to be non-compliant.

Respondent De Lima chose to ignore the TRO and so, on November 18, 2011,
the Court issued a Resolution requiring her to show cause why she should not be
cited for contempt for her failure to comply with the TRO and further require her to
immediately comply thereto. Justice Carpio questioned the accuracy and
completeness of this Resolution. Thus, the Resolution in question was discussed
during the November 22, 2011 session. By a vote of 7-6, the Court found that there
was no sufficient compliance with the required appointment of the legal representative
of petitioners. Thereafter, there was a long discussion on whether or not the TRO was
suspended pending compliance with the second condition. I distinctly remember
moving that a vote be made on the issue of the suspension or non-suspension of the
TRO pending satisfaction of the second condition. Thus, the majority vote of 7 held
that the TRO was not suspended pending compliance with the appointment of the
legal representative of petitioners. As a matter of fact, on November 18, 2011,
petitioners already submitted a special power of attorney appointing Atty. Topacio as
their legal representative to receive summons, subpoenas, orders and other legal
processes. Thus, by November 18, 2011, the issue of whether or not the TRO was
suspended pending compliance with such requirement has already become moot and
academic and there is actually no necessity to clarify said issue. However, to set the
record straight, I certify that the draft directive on the non-suspension of the TRO is
correct and accurate.

On November 29, 2011, the Court En Banc voted anew on the same issue of the non-
suspension of the TRO pending compliance with the second condition and again, by a
vote of 7 against 6, the Court held that the TRO was not suspended. The majority
sustained the correctness and validity of the November 22, 2011 Resolution. This
should put the issue to rest.

PRESBITERO J. VELASCO, JR.

Associate Justice

[1] The seven justices who voted for the majority includes Justices Antonio T. Carpio,
Roberto A. Abad, Martin S. Villarama, Jr., Jose C. Mendoza, Maria Lourdes P. A.
Sereno, Bienvenido L. Reyes, and Estela M. Perlas Bernabe.
[2] Dissenting Opinion of Justice Sereno promulgated on November 18, 2011, pp. 1-2.
[3] Id. at 6.
[4] Id. at 7.
[5] Id. at 8.
[6] Unpromulgated Dissenting Opinion of Justice Sereno, p. 1.
[7] As amended from 15 November to 18 November by Justice Carpio in his amendatory

letter also dated 24 November 2011.

[8] Supra note 6, at 2-3.
[9] Id. at 4.
[10] Id. at 5.
[11] Id.