Ghost writing: TRO

the following is my attempt to write a blog in accordance with the arguments raised by a potential employer of mine. Excuse the "sabawness". 

Re: TRO dated 15 November 2011 against the DOJ

Facts

The former President Gloria Macapagal-Arroyo and her husband wanted to go abroad to seek medical treatment for her metabolic bone disease. But they cannot leave the country as they were placed in the Department of Justice’s (DOJ) Watchlist Order. The spouses were subject to preliminary investigation for plunder, malversation of public funds, election fraud, among others.

Initially, the spouses filed a request for the issuance of an Allow Departure Order from the DOJ. However, this request was denied by the DOJ, primarily due to the inconsistencies of the basis offered by the former president as to her request to travel abroad. The more pressing reason further raised by DOJ is the fear that the Arroyos may escape the country – and therefore escape prosecution – principally because the countries where the Arroyos are heading does not have extradition treaties with the Philippines.

Having failed in their first attempt, the Arroyos now sought to assail the constitutionality of DOJ Circular No. 41, the circular which authorizes the DOJ to issue watchlist orders. They also sought to nullify the Watchlist Orders issued against them by the DOJ. Their main arguments is hinged on the right of the Arroyos to travel, as well as the lack of sufficient standards that the DOJ Secretary should follow in issuing watchlist orders.

Further, the Arroyos filed a petition for the issuance of a Temporary Restraining Order (TRO) against the enforcement of the same DOJ issuances they were assailing. The Supreme Court granted this petition in a decision dated 15 November 2011, albeit with some conditions imposed.

Even when the said TRO was allegedly immediately executory, the DOJ did not follow the said TRO, claiming that they did not receive any copy of it. The DOJ subsequently moved for the lifting of the said TRO, which was however denied by the Supreme Court.

The Supreme Court was not able to make a final determination of the constitutionality of the assailed DOJ issuances because the Commission on Elections filed electoral sabotage cases with the Regional Trial Court of Pasay. Still, the Supreme Court may  be said to already have ruled on the merits of the case when they issued the TRO.

The Arroyos have not sufficiently established their right to the issuance of a TRO

The Supreme Court previously that writs of preliminary injunction should be granted only to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages.

                Statutes enjoy the presumption of constitutionality or validity and the burden of proving its unconstitutionality or invalidity rests on the party assailing it. There are two conditions before a court could issue a writ of preliminary injunction (which includes a TRO)in cases where the act of a co-equal branch of government is being assailed: the petitioners should first show that the issuance assailed is patently unconstitutional; and second, the petitioners should show a clear legal right to be protected which would be materially and substantially invaded if the writ of preliminary injunction would not be issued.  The Supreme Court, however, granted the TRO even when the Arroyos have not satisfactorily shown the existence of the said requirements.

                As to the first requirement, the Arroyos were assailing the DOJ issuances for violating their right to travel. However, the right to travel is not absolute. It may be limited when the needs of "national security, public safety, or public health” requires it, and "as may be provided by law." Further, they argue that the DOJ Secretary is given broad discretion as to the issuance of watchlist orders. This, however, may not be determined in a mere ex parte hearing.

                Although a TRO may be issued ex parte, the court could only do so when the Arroyos would suffer grave injustice or irreparable injury. This goes to the second requirement for the issuance of a TRO: that a clear legal right would be materially and substantially invaded.

 The grave injustice or irreparable injury alleged by the Arroyos would be the worsening of her disease if she is not treated outside the Philippines. However, this injury is merely imagined. As we can see now, even if the former president has not received treatment from abroad, her condition has not worsened to the point of her dying.  Even the certification from her doctors belie her “life-threatening” condition. Clearly, the denial of a TRO would not cause her grave injustice nor irreparable injury. The Philippines would suffer more if she would be allowed to travel to countries without extradition treaties with the Philippines, effectively removing her from the jurisdiction of the prosecution system of the country.

There is already a predetermination of the case

The Supreme Court generally maintained that courts should avoid issuing writ of preliminary injunctions which would in effect dispose of the main case without trial. The rule is intended to preclude a prejudgment of the main case and a reversal of the rule on the burden of proof since by issuing the injunctive writ, the court would assume the proposition that the petitioners are inceptively duty bound to prove.

This is especially so when the acts of a co-equal branch is assailed and its enforcement is sought to be enjoined. The Courts should first be convinced that the assailed issuance is patently illegal and that the petitioner would suffer grave injustice or irreparable injury if the TRO would not be granted. When the court issues a writ of preliminary injunction, in effect it accepts the claim that the assailed government issuance is patently invalid.

A TRO is a species of the writ of preliminary injunction. Although limited in duration, it gives the parties a brief relief from the effects of the act they are assailing.

Here, the Arroyos assailed the constitutionality of DOJ Circular No. 41 and the watchlist orders issued against them. Their main goal is to leave the country, allegedly to seek treatment in other countries for the former President’s “life-threatening” disease.

The TRO would have allowed the Arroyos to leave the country. The minimum of seventy-two hours effectivity of the TRO would be enough for the spouses to leave the country and escape Philippine jurisdiction over their persons. In granting the TRO, the Supreme Court virtually granted the main relief sought by the Arroyos even if they failed to sufficiently prove their case. Regardless if the constitutionality or the legality of the DOJ issuances would be resolved against them, they are already out of the jurisdiction of the Philippines.

Every court should remember that an injunction is a limitation upon the freedom of action of the defendant and should not be granted lightly or precipitately. It should be granted only when the court is fully satisfied that the law permits it and the emergency demands it.