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A pair of dissenting opinions have revealed purported recent procedural irregularities in the Supreme Court which could be raised in Chief Justice Renato Corona’s impeachment trial at the Senate scheduled to begin in January. Among the more significant claims is Associate Justice Maria Lourdes P. A. Sereno's contention that a Supreme Court resolution favorable to ex-President Gloria Arroyo's attempt to leave the country last November "did not reflect that day’s voting and the reasons for that vote" after Corona made handwritten corrections to the original draft of the resolution and then ordered it "immediately promulgated."
The Supreme Court published on its website on Wednesday the dissenting opinions of SC Associate Justices Sereno and Antonio T. Carpio regarding a Nov. 29 SC resolution which upheld, by a one-vote majority, the temporary restraining order (TRO) that the entourage of former President Gloria Macapagal Arroyo wielded as she tried to exit the country last November 15. Before a nationwide television audience, the wheelchair-bound Arroyo was prevented from leaving after Justice Secretary Leila de Lima defied the TRO, perhaps the most sensational episode in the current tussle between the executive and judicial branches of government which, with the upcoming Corona impeachment trial in the Senate, now involves the legislative.
Both Sereno and Carpio had also dissented on the original SC majority resolution granting the TRO favorable to Arroyo.
Sereno's published dissent on the Nov. 29 resolution, in particular, provided "a rare glimpse into the inner workings of the Court," according to Marites Danguilan Vitug, author of a ground-breaking book on the Supreme Court, Shadow of Doubt.Sereno said that the original draft of the Nov. 29 resolution was “corrected” by no less than the Chief Justice; that Corona had instructed the SC spokesman to mislead the public by saying the TRO was still in effect despite Arroyo's non-compliance with the high court’s conditions; and that the publication of her original dissenting opinion had been “withheld”.
Carpio, for his part, expounded on his earlier dissent that the Arroyo couple had failed to comply with two of three conditions the high court had set for the issuance of its TRO on Nov. 15. He also “joined” in Sereno’s dissent – meaning that he agreed with her on all the points she raised in her dissenting opinion.
Also posted on the high court’s website – countering the dual dissents –is the separate opinion of SC Associate Justice Presbitero Velasco who defended the court majority’s Nov. 29 resolution which he himself had drafted and penned, while accusing Sereno of having violated the rule on confidentiality of court deliberations.
This “charge-countercharge” exchange between magistrates in the Corona Court through written dissents and separate opinions is not unprecedented, there having been such a legal tussle last year over allegations that a high court decision had plagiarized foreign publications.
Sereno’s ‘very revealing narration’
The book author Vitug said on Facebook that Sereno’s dissenting opinion was a “very revealing narration of what happened in the Supreme Court during their deliberations on the TRO that almost let GMA leave the country.”
“Justice Sereno's dissent details the chronology of events," Vitug explains. "Among others, we find out that Chief Justice Corona made corrections to the en banc resolution but these were not faithful to their deliberations – and he wanted this promulgated. A rare glimpse into the inner workings of the Court!”
The Supreme Court is a 15-member collegial body which serves as the “court of last resort” – the highest court in the Philippines where cases from lower courts can be appealed or else where actual judicial controversies can be settled. In very important cases – such as when the former President asked for a TRO on the watch-list orders that prevented her from going abroad – the full court, or “court en banc”, decides upon the vote of all 15 justices or a majority of them who actually took part in the deliberations.
In her nine-year stay in Malacanang Palace, Arroyo was able to appoint 12 justices to the Supreme Court, including Chief Justice Corona and Justice Carpio. In comparison, her successor, President Benigno Aquino III, has appointed only three – including the feisty Justice Sereno who is known for her fiery dissents.
Sereno: Corona wrote ‘corrections’ onto draft ruling
“When the Resolution came out, it was not, with all due respect, a fully accurate reflection of what took place," Sereno said in her dissenting opinion. "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. Unsigned resolutions, it must be emphasized, are usually not circulated to the justices for their approval before they are promulgated, as happened with the 18 November 2011 Resolution.”
Sereno said the Chief Justice had “corrected” the draft Nov. 18 resolution, which was written by Velasco, which changed what the court would eventually promulgate on Nov. 29.
In a “timeline” she put in her dissenting opinion, Sereno narrated that on Nov. 23, “The Clerk of Court informs J. Carpio that CJ Corona sent in his own handwritten corrections on the typewritten draft [Nov. 18] Resolution from J. Velasco with the instruction that the Chief Justice’s version is to be immediately promulgated. CJ Corona’s version is to the effect that petitioners [Arroyos] have complied with the conditions for the issuance of the TRO, and that it is in full force and effect.”
Sereno included in her dissenting opinion Carpio’s formal letter addressed to the Chief Justice, requesting to stop the promulgation of Corona’s version of the resolution “until the justices are able to meet on the matter,” and stating “that the version sent by the Chief Justice compounds the error of the 18 November 2011 Resolution.”
Velasco responds: Sereno broke ‘confidentiality’ rule
Velasco said Sereno wrote in her dissenting opinion “excerpts” of “confidential matters taken up during the November 18, 2011 and November 29, 2011 En Banc sessions.” He stressed, “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.”
Velasco wrote in his separate opinion the very same “excerpts” Sereno cited but which he found to be “confidential matters”. He said, “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.”
However, Sereno said in her dissenting opinion that she pointed out to the other justices “the existence of precedents as early as 1958 and as late as 2009 as justification for her disclosure of internal deliberations,” explaining that she “made the disclosures only because (1) the promulgated Resolution of 18 November 2011 did not reflect that day’s voting and the reasons for that vote; and (2) the Acting Chief of the PIO [Public Information Office] continues to misinform the public.”
Sereno: ‘Continuing misinformation’
“The public continues to be fed information that distorts the facts and the legal import of the voting [conducted by the court en banc] that took place,” Sereno said.
“Despite serious efforts from my end to advise an officer of the Supreme Court that no action of the Court should be interpreted, such behavior has continued. This opinion is thus rendered in part to remedy the present deficit in truth,” thus began Sereno’s dissenting opinion.
“Contrary to statements made by the Acting Chief of the Public Information Office (PIO) Atty. Jose Midas P. Marquez, there was no 9-4 voting that upheld the effectivity of the TRO despite non-compliance with [a condition set by the SC],” she clarified. “The above [Nov. 29] Resolution categorically identified the voting ratio as 7-6 in favor of a declaration of non-compliance, and another 7-6 in favor of non-suspension of the TRO despite non-compliance with a condition.”
Sereno has previously warned Marquez against “interpreting” the high court’s rulings, a couple of days after he announced that the TRO in favor of Arroyo was already “in full force and effect.”
Sereno also chastised Marquez last February regarding a different impeachment case involving the former Ombudsman, Merceditas Gutierrez.
Sereno’s dissent blocked?
Sereno also narrated how she had tried to submit her dissent on Dec. 2 but the SC en banc’s Clerk of Court, Atty. Enriqueta E. Vidal, had refused to promulgate it.
“On the following Monday or on 5 December 2011, two members of my staff had a serious talk with Atty. Vidal,” said Sereno. “She [Vidal] admitted that she could not tell my staff the real reason for the non-promulgation of my opinion – that actually, Justice Velasco gave her the instruction, as confirmed by the Chief Justice, that my opinion should not be promulgated, but rather, that it should be taken up in the agenda of the 6 December 2011 En Banc session.”
“I know of no precedent in the entire history of the Supreme Court when the promulgation of a Dissenting Opinion was withheld at the instruction of a fellow Associate Justice or even of a Chief Justice,” Sereno said.
“The language of the Constitution in Article VIII, Section 13, is clear,’” she pointed out. “It is a constitutional right of any Member of the Court to issue his or her Dissenting Opinion; and in cases wherein the issue of compliance with a TRO and the efficacy of that TRO, is being subjected to intense national scrutiny, as in this case, such issuance is also a constitutional duty.”
“Further, I know of no precedent in the entire history of the Supreme Court where the promulgation of a signed Dissenting Opinion has been withheld because it would be the subject of discussion in a next Court session,” she added.
Velasco responds: Sereno ‘filed late’
In his separate opinion, Velasco said the “Unpromulgated Dissenting Opinion of Justice Sereno [was] filed late and in contravention of Section 2, Rule 10 of the Internal Rules of the Supreme Court (IRSC),” referring to the rule on confidentiality of court deliberations.
Velasco said Sereno had “committed” to submit her dissenting opinion “on December 1, 2011, a self-imposed deadline,” but she had “belatedly filed only on December 2, 2011 (a Friday) at 4 p.m.”
He added: “She did not even circulate 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 Sereno’s opinion so that the matter of the promulgation could be discussed in the December 6, 2011 En Banc session.”
In her dissenting opinion, Sereno explained “the Court decided to continue the [oral arguments] proceedings in the afternoon of 01 December 2011, on which date I fell ill. Thus, I was unable to attend the oral argument and to submit my Opinion.”
Carpio’s dissent: TRO issued ‘before compliance’
Aside from joining Sereno in her dissenting opinion, Carpio highlighted in his own dissenting opinion that the “TRO was actually issued and released to petitioners before 6:00 o’clock in the evening of 15 November 2011, even before petitioners’ compliance with the [TRO’s] first two conditions.”
The SC itself set three conditions for issuing a TRO in its Nov. 15 resolution: that the Arroyo couple post a P2 million cash bond, that they appoint a legal representative to receive court orders in their behalf, and that the couple inform the Philippine consulate of their arrival in the country of their destination.
Carpio said the Arroyos “posted the P2 million bond and submitted their respective special power of attorney at 6:00 o’clock in the evening of 15 November 2011.”
In this regard, SC spokesman Marquez had confirmed in an interview that the TRO was issued past 5 pm on Nov. 15.
Carpio, together with Sereno, maintained that the TRO should have remained “suspended” or not effective pending the Arroyos’ compliance with at least the first two conditions set by the court.
Sereno said the court majority, however, “ruled by a vote of 7-6 that it was not necessary for the [Nov. 29] Resolution to express that the TRO was deemed suspended pending compliance,” purportedly because “the legal effect of non-compliance was common sense anyway.”
“The official receipt issued by the Court’s cashier for the payment of the P2 million evidenced compliance with the first condition. However, a cursory reading of petitioners’ special power of attorney would have readily revealed that petitioners failed to comply with the second condition,” Carpio said.
On the other hand, Velasco stated in his separate opinion: “It is my view that petitioners [Arroyos] 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.” — HS/TJD, GMA News