Justice: Garcia TRO can cause 'irreparable damage' on govt
MANILA, Philippines - The Court of Appeals' presiding justice said on Thursday, January 10 that granting suspended Cebu Gov Gwendolyn Garcia a temporary restraining order may cause the government "irreparable damage."
Presiding Justice Vicente Veloso said during the oral arguments on Garcia's case that if the CA issues a TRO stopping the Office of the President from implementing its suspension order against Garcia, this will lilely affect the Office of the President's power to discipline public officials.
The Office of the President implemented a 6-month suspension order against Garcia on Dec 19, 2012 (the suspension order was dated December 17). The suspension stemmed from a 2010 complaint filed by then Vice Gov Greg Sanchez Jr. Sanchez, who accused Garcia of hiring consultants without the authority of the Provincial Board and of decreasing the funds of the office of the vice governor.
Garcia sought a TRO on December 21 to stop the government from enforcing its order. Veloso said on January 10 though that the issuance of the TRO will require the CA to consider which party will suffer from "irreparable damage" - the grounds for a TRO as stated in Sec.6, Rule 85.
Section 6, Rule 58 of the Rules of Court states that "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."
Veloso said he sees no irreparable damage on Garcia's part, however, because she can still get back her wages once the suspension is lifted.
Tranquil Salvador, Garcia's lawyer, argued that the effect of the suspension order on Garcia goes beyond having no salary while under suspension.
"We cannot limit irreparable injury to salary or wages because the reputation of the governor has also been besmirched," he said, adding that Garcia's right to serve as an elected official has also been violated because of the "illegal" suspension order.
He said that if the court does not issue the TRO, Garcia will be forced to serve the 6-month suspension and end up working as governor for only two weeks (her term ends on June 30).
"We don't want the President to be deprived of his power to discipline, we just want said power to be restrained," Salvador pointed out.
Salvador said the CA should also consider the "harshness" of the decision, adding that the move to suspend Garcia is imbued with "political color."
Garcia is seeking a congressional seat in 2013 under the United Nationalist Alliance, the rival of the Liberal Party (LP). Another LP bet, Hilario Davide III, will face Garcia's brother, incumbent 3rd district Rep Pablo John, in May's gubernatorial race.
Petition for certiorari, not TRO; SC, not CA
Veloso said that Garcia should have filed a petition for certiorari instead, citing Rule 65.
Rule 65, Sec. 7 states that "the court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings."
Veloso added that they cannot also issue a status quo ante order, which Garcia also prayed for, because only the SC can do so.
A status quo ante order will compel government to allow Garcia to stay as governor.
Veloso said though that the CA "does not enjoy the vast powers of the SC."
Christina Garcia-Frasco, Garcia's daughter and lawyer, stood by their decision to file the petition before the CA. "It was our choice and in line with existing jurisprudence, because it is the decision of the Office of the President, it is our remedy to appeal to the Court of Appeals," she told the reporters after the oral arguments.
'Clash' in rules
Another ticklish issue that was brought up during the oral arguments was the validity of the suspension order.
Salvador argued that the order is flawed because it was implemented 474 days after a decision was reached on Garcia's case.
According to Sec.66 of the Local Government Code, the investigation of the case shall be terminated within 90 days. The Office of the President shall render a decision 30 days after the investigation, the Code added.
The case was filed on Nov 8, 2010. The Department of the Interior and Local Government finished its investigation on Aug 31, 2011 but the decision was rendered only on Dec 17, 2012.
The Office of the Solicitor General said that the 30 day-rule is only "directory and not mandatory." CA Justice Jane Aurora Lantion said though that the word "shall" means it's mandatory.
The OSG explained that the SC has said itself in previous decisions that the late enforcement of an order does not render it null and void.
Veloso said that this is where a clash comes in, because while the petitioner's right to due process and speedy trial must be observed, the SC itself also said that an order, though implemented late, remains valid.
Justice Eduardo Peralta zeroed in on what was served on Garcia: was it an original copy of the President's order?
Salvador said only photocopies of the order were given, when a certified true copy of the suspension order must be served. The order was also posted outside Garcia's office.
Veloso said "actual knowledge" of the serving of the order is sufficient.
The case has now been submitted for resolution. The CA turned down a request from the OSG to submit a memorandum within 3 days to expedite the resolution of the case. - Rappler.com