Soft underbelly of the Supreme Court

One would have thought that with the arrest and incarceration of Gloria Macapagal-Arroyo, the matter of Justice Secretary Leila de Lima’s defiance of its temporary restraining order (TRO) on Arroyo’s travel ban would be uppermost in the Supreme Court’s mind.

But that doesn’t seem to be the case (pardon the pun) at all. From the opinions uploaded three days ago on the Court’s website, the justices seem to be more interested in engaging each other in what looks like an all-out war, the niceties be damned, with regard to the issues surrounding that TRO.

The spillover effects of such a battle among the giants, so to speak, can be considered either positive or negative. That the Court’s feet of clay are exposed may be considered a negative by those who want to hide it, but it is certainly a positive to those who want to know how to reform the institution and its processes.  Judge for yourself.

Five opinions were uploaded on the website, all regarding the Arroyo-De Lima brouhaha.  Justice  Antonio Carpio and Justice  Maria Lourdes Sereno each have a dissenting opinion, Justice Arturo Brion and Justice Presbitero Velasco each have a separate opinion, while Justice Roberto Abad has a concurring opinion. But get this: the decision/resolution itself—about which these justices dissented, concurred or had a separate opinion—was nowhere on the website.  If this is an oversight, it certainly does not reflect well on the efficiency of the

administration of the Court.

If you have neither the time nor the inclination to read the documents, let me give you some of what I consider glimpses into the soft underbelly of the Court’s procedures:

Item: Carpio’s dissent points out 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 first two conditions. Petitioners 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.”

On whose authority was the TRO issued even before its conditions were complied with? Did the clerk of court, Enriqueta Vidal, do it on her own?  If she did, she should be dismissed for abuse of authority. If she was “only” following somebody’s orders, she still has no excuse. She is sworn to follow only legal orders, isn’t she?

On the other hand, if she points to Chief Justice Renato Corona or to some other justice as the one who gave her the go-ahead signal, then that person must also be brought to book by the Court en banc, presumably also for abuse of authority. Could this be a ground for impeachment?

Item:  Sereno’s dissent notes that her earlier (Nov. 18) dissent included her first-person narration of the Nov. 18  en banc  deliberations,  the issues that were put to a vote, and the voting results—and that the accuracy of this narration was never questioned by any of her colleagues in subsequent deliberations (Nov. 22, 24, 29).

That narration noted that the en banc voted 7-6 that the second condition of the TRO had not been complied with, but it also voted 7-6 that there was no need to explicitly state what the legal effect of that non-compliance was.  Carpio, in a letter quoted by Sereno, actually mentioned that it was Abad in the Nov. 18 meeting who said that there was no need for that since it is “common sense that the TRO cannot take effect unless all conditions are satisfied.”

No problem so far.  What happened, though, is that the Nov. 18 resolution made no mention of any non-compliance. Instead, it merely gave instructions which would correct it (with none the wiser).

And that is when the s–t hit the fan—within the high court—as shown in the various opinions.

Carpio sought and obtained agreement at the Nov. 22 en banc meeting that the Nov. 18 resolution be clarified (i.e. to reflect non-compliance), with Velasco assigned to draft the Nov. 22 clarificatory resolution.

To his horror (my interpretation), the resulting clarification, which he found out was the Chief Justice’s version, “states the opposite of what was approved by the En Banc in its meeting of 15 November 2011, and what was agreed in the En Banc meeting of 22 November 2011.” He asked that the resolution be withheld until the next en banc meeting.

The Carpio letter was taken up at the Nov. 29 en banc meeting, during which by a vote of 7-6 it was decided that despite non-compliance with the condition, the TRO was nevertheless not suspended!

Now, that has to be the mother of all arbitrary, illogical decisions. If a TRO is conditional and the condition is not obeyed, how can the TRO be in effect? Because the high court  says so. And that is what is contained in the final (but not in the website) Nov. 22 resolution, although the vote was taken on Nov. 29.

Naturally, Sereno dissented, as did Carpio.  But here’s the kicker:  Sereno’s dissent, which she submitted on Dec. 2, was not promulgated until three days ago. Why? Because, as the clerk of court affirms, Velasco ordered her not to promulgate until the en banc could discuss it.

Since when does a dissent have to be discussed en banc before promulgation?

What’s more, Velasco, in his separate opinion accuses Sereno not only of violating internal rules by divulging what took place in en banc sessions (I understand that there are at least six precedents for that) but also of playing fast and loose with the rules because her dissent came late (one day) .

Sereno has put up a mirror to the high court.  And they hate her for what she makes them see.

Too bad.