Sunday, December 25, 2011

TRO effective sans compliance of conditions

My Christmas eve celebration was spoiled a bit by a disturbing read of a dissenting opinion of the Supreme Court that I am attaching.

I am referring to the dissenting opinion of Justice Maria Lourdes Sereno in connection with the petition of Gloria Macapagal Arroyo seeking to leave the country (G.R. Nos. 199034 and 199046).
The Sereno dissent, promulgated just eleven days ago on December 13, 2011, is unprecedented in several ways.

First, I got a front seat ticket to the internal, behind-closed-doors discussions of the Supreme Court.

Second, I just learned tonight that one of the very basic and long-observed rules on issuances of Temporary Restraining Orders has just been overturned by this Supreme Court.
The basic rule is, if a condition in a TRO is not met, the TRO does not take effect.
I have experienced in law practice not observing a TRO, when one of conditions imposed by the court is not complied with.
This is a very basic procedure.
However, the Supreme Court has overturned this in its November 29, 2011 resolution in ruling that “the TRO is not suspended despite non-compliance with a condition”. I read this in Sereno’s dissent.
This resolution will have serious repercussions in the way lawyers practice law.
This means that even if a condition in a TRO is not complied with, the TRO is still effective.
But what disturbs me more is the flip-flop of the Supreme Court in arriving at this conclusion, based on the narrations of Justice Sereno.

Third, I just learned tonight there is suppression of freedom of speech in the Supreme Court even on its own justices.
The dissent of Justice Sereno was refused publication upon directives of the Chief Justice.
This is also the first time in my law practice that a dissenting opinion is much feared, to the point that it is refused publication and/or dissemination, to the prejudice of the public’s right to know.

Fourth, this is the first time I learned that it is possible to dissent to a dissenting opinion, or to make a “counter-dissent” as Justice Sereno puts it.
I recall in law school a case we read where a lawyer was castigated by the Supreme Court for filing a motion for reconsideration to a dissenting opinion.
A dissenting opinion is supposed to be what it is--- an opinion that dissents to a main opinion.

Its been an educational Christmas eve for me.

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