JURIST Columnist Edsel Tupaz of Tupaz & Associates and JURIST Guest Columnist Ira Paulo Pozon of the Office of the Vice President of the Philippines examine recent high-profile cases in which temporary restraining orders issued by competent courts have been disregarded...
n November 2011, the Supreme Court of the Republic of the Philippines, the highest judicial body of the land, issued a Temporary Restraining Order
(TRO) on the travel ban imposed against former president Gloria Macapagal-Arroyo in a vote of 9-4. The travel ban had been issued by the Bureau of Immigration (BOI) in relation to a case of electoral sabotage pending before the Pasay City Regional Trial Court Branch 112.
Within hours of the issuance of the TRO, Arroyo and her husband attempted to exit the country under the auspices of medical treatment. In full view of the national press, the BOI, under instructions from the secretary of justice, prevented the former president from exiting the country despite the TRO.
The main reason for the executive disregard displayed towards the injunction issued by the court strikes many as a technical one. The TRO imposed a number of conditions on any travel by Arroyo and the former first gentleman — such as posting a cash bond of two million pesos, mandatory reporting requirements to the Philippine embassy or post in the country of destination and the appointment of a legal representative who will receive summons on their behalf. The secretary of justice argued that these conditions had not been complied with and, thus, the TRO was not yet effective at the time the Arroyos attempted to leave the country.
It is also noteworthy that the issuance of the Arroyo TRO was cited as Article VII of the articles of impeachment that were filed against former chief justice Renato C. Corona in December 2011. He was ultimately convicted on May 29, 2012 by the Senate of the Philippines in a vote of 20-3.
Oddly, in the foregoing TRO, the appointment of a legal representative may strike many as the easiest point of compliance - all one needs to do is to draw up a special power of attorney authorizing anyone to receive summons. However, according to the secretary of justice, that appointment had not taken place and, thus, the lack of compliance was a valid basis for refusing to comply with the TRO. As it turns out, the former president had appointed her legal counsel, Ferdinand Topacio, as her legal representative — but the "power of attorney" lacked clear and unambiguous terms that authorized Topacio to receive processes and subpoenas.
Another case of defiance against court injunctions arose roughly four months later in March 2012. A private school in the province of Cebu, St. Theresa's College, disallowed five high school students from graduation rites after the school found photos of the students in bikinis on social networking sites, which the school considered lewd and immoral behavior. Pressed for time and seeking court assistance, the parents of the affected students filed a civil case for injunction and damages with the Regional Trial Court of Cebu City Branch 19. The court issued a TRO that effectively ordered the school to allow the five students to participate in the graduation rites.
On March 30, 2012, graduation day, the students and their families proceeded to the school to participate in their graduation rites — only to be turned away by school authorities in outright defiance of the court-issued TRO. Legal counsel for the school argued that the TRO was deficient for being issued without a cash bond, which is supposed to compensate for any possible damages.
According to the 1997 Rules of Civil Procedure, specifically Rule 58§ 1 , a preliminary injunction is defined as:
An order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. [Emphasis added]
This definition of what constitutes a preliminary injunction
follows its common law origins in US state practice. It may also be said that the TROs issued in the cases of former president Arroyo and St. Theresa's College were both preliminary, mandatory
injunctions that effectively require a party or agency to refrain from a particular act or acts — such as preventing travel of the former president and preventing students from participation in graduation rites.
Rule 58 § 3 cites the following as grounds for the issuance of a preliminary injunction:
A preliminary injunction may be granted when it is established:
- (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;
- (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or
- (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.
Conversely, Rule 58 § 6 sets the grounds for objecting to, or challenging the validity of, a preliminary injunction:
The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.
Rule 58 § 5 provides that the "effectivity" of TROs depends on the level of court issuing the order. For those issued by the Municipal and Regional Trial Courts, the TRO shall in no case exceed 20 days. For those issued by the Court of Appeals or any of its members, the TRO shall not exceed 60 days, and for those issued by the Supreme Court, the TRO is valid and in full force indefinitely until the Supreme Court orders otherwise.
In the case of Arroyo, it was the BOI, the Department of Justice (DOJ), and the Office of the Solicitor General that filed a motion for reconsideration challenging the court's TRO. However, the mere filing of such a motion would not, in any way, affect the validity of the TRO. Rule 58 § 6 of the Rules of Civil Procedure provided that a TRO already granted may be dissolved:
- On other grounds, upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits; or
- If it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance ... would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order.
The argument used in the case of St. Theresa's College may seem to hold little merit § the school's legal counsel alleged the TRO as deficient due to a supposed error on the part of the judge to impose an amount for a cash bond. Under the rules of court, a bond is imposed at the discretion of the issuing judge based on legal factors and the amount of damage that may be caused by the injunction. In the case of St. Theresa's College, the judge found no great potential for injury or damage in allowing the five students to participate in the graduation ceremonies. That finding was precisely the reason that no cash bond was imposed.
The authors of this piece, leaving political opinion and partisanship aside, are of the view that these two cases illustrate an alarming trend towards disregarding judicial injunctive powers that is troubling for Philippine practitioners and academics alike. In the Corona impeachment trial, senator-jurors subjected the secretary of justice to intensive questioning about the propriety and timing of her choice to disregard the TRO. But the issues in the case of St. Theresa's College are less debatable. Here, one could say that the school's disregard of the TROs was a blatant one that amounts to a clear deviation from established procedure. The principle that TROs are immediately executory upon their issuance is well-settled and a subsequent motion cannot hinder their immediate implementation. To allow such actions to continue without proper sanctions would create bad precedent and give the public the impression that lawful court orders processes can simply be ignored upon one's own determination.
Edsel Tupaz is a private prosecutor of the House prosecution panel in the impeachment trial of Philippine Chief Justice Renato Corona. He is a graduate of Harvard Law School and Ateneo Law School. Tupaz is a public interest lawyer and law professor whose expertise lies in comparative constitutional law and policy, teaching at law schools in the US and the Philippines.
Ira Paulo Pozon is head of the Vice Presidential Special Concerns Unit of the vice president of the Philippines. He also serves as legal counsel and international relations officer to the vice president. He acquired his MBA from the De La Salle University and his law degree from Far Eastern University. His interests lie in corporate law, banking, trade and investment law, and international relations. He currently teaches at the College of Law of the University of the City of Manila.
Suggested citation: Edsel Tupaz & Ira Paulo Pozon, Preliminary Injunctions & Disregard in Philippines, JURIST - Sidebar, June 2, 2012, http://jurist.org/sidebar/2012/06/tupaz-pozon-injunction-tro.php.
This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at firstname.lastname@example.org