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De Lima’s Dillema

Okay.. so by now you should have heard that our Secretary of Justice disobeyed the High Court’s decision (by way of a TRO) in allowing former president Gloria Arroyo  to travel abroad to seek medical help.

Looking at the issue from the viewpoint of an ordinary Filipino, such move maybe considered as quite heroic, right, and just considering that the former president is accused of various crimes allegedly committed  during her term such as the alleged election sabotage that put her into office.

But looking at the issue in a legalistic approach, the move by De Lima may as well be constitutive of a violation of due process.

Senator Drilon stated that the issue should not be overblown as looming into a constitutional crisis but let’s try to look at it vis-a-vis what the constitution says.

In a nutshell, the constitution provides that the Supreme Court is the highest court in the land and its orders should be respected by the other branches of the government. This is  to ensure the balance of power between the three branches of the government.

Neither branch should  question the wisdom of the other branches of the government.

What De Lima did when she denied the Arroyo’s from boarding their plane to “seek medical help” may be viewed as questioning the said order. Considering that the TRO is immediately executory. It’s as if she is questioning the legality and wisdom behind the said order.

Note however that De Lima categorically denied that what she did is not a disrespect or disobedience to the high court. For one, she said they were not furnished a copy of the TRO hence they did not allow the Arroyo’s to leave.

This is understandable, because although it is all over the media, proof of the TRO must be physically produced. What if it was just a grand scheme of some sort to have the Arroyo’s escape from a looming trial?

Second, De Lima said that the issue against the Arroyo is a matter of strong urgency so much so that the usual text in the TRO which says “immediately executory” can be defeated. (I don’t know exactly what she means there but I guess she’s saying that the TRO can be complied with later after their side has been heard). She did not however offer a legal basis why they did not comply with the TRO save for the fact that they were not furnished a copy of it when the Arroyo’s were attempting to leave.

There was this one College of Law Dean in Manila though (I forgot his name – was it Dean Amado Valdez of UE.. I forgot) who said that De Lima could be right in not allowing the Arroyo’s. He pointed out that everyone is too legalistic but they fail to consider that the constitution should adopt to the needs of the time and that its interpretation and construction should evolve together with what a particular situation calls for.

This is a potent view considering that the Supreme Court has a long line of constitutional cases that were reversed in the past.

At any rate, let’s just wait for the oral arguments to finish.

 UPDATE: 

So… the Supreme Court upheld the TRO yesterday (November 18, 2011) but the SC concurred that Arroyo is barred from leaving the country because of the issuance of a warrant of arrest against her. The said warrant was received by the Arroyo camp at around 4 pm.

The upholding of the TRO, in my understanding, is only moot and academic insofar as Arroyo’s case is concerned. However, DOJ’s watchlist order is under scrutiny and will still be the subject of the scheduled oral argument.

Also, since the TRO is upheld, Arroyo’s husband is now free to leave the country. But I bet he won’t do that without his wife.

There were two justices who had a dissenting opinion, one was Justice Sereno who mentioned that Arroyo’s camp did not comply with the conditions of the TRO. So it seems that De Lima was correct in “questioning” the “immediately executory” TRO. How can it be “immediately executory” if there are conditions to be complied with first by the Arroyo camp?

So before the TRO is executed on their part, they should have complied with all requirements, to wit:

1. Post the P2M bond (each);

2.  the couple should inform the government through a Philippine consulate of their arrival in the country of their destination.

3. the couple should appoint a legal representative who will receive all documents and court processes from the SC.

The SC, on its November 18 Resolution, noted and acknowledged that 1 & 2 above were complied with. It also noted that on November 15th, former FG executed an undertaking which authorized Atty. Topacio to be their legal representative and that he (Atty. Topacio) can and may receive court processes in their behalf.

The flaw here is with Atty. Topacio not submitting a compliance intimating before the court that he is the assigned legal representative authorized to receive legal processes in behalf of the Arroyos.

So that’s it for now. Let’s wait for further development.

 

About the author

Howard Chan (The Student)

Howard considers himself as an armchair activist. Though his street rally days are in a slumber he still advocates changes via social media. He is a strong believer that awareness of various social issues is a good starting point in order to break out from the stranglehold of an oppressive system which only benefits the few. He is also a full time student and a part time blogger, part time web designer, part time web manager/designer for various clients. (Note: Howard Chan passed the 2014 Bar Exams and was admitted to the Philippine Bar on April 29, 2015. That being, all posts after April 29, 2015 authored by him are now under the name Howard Chan for the purpose of distinguishing posts he made as a non-lawyer from posts he made after admission to the bar).

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