THIRD
DIVISION
|
JOSE T. BARBIETO, Petitioner, - versus
- THE HONORABLE COURT OF APPEALS; MARY
RAWNSLE V. LOPEZ, GRAFT INVESTIGATION AND PROSECUTION OFFICER II; EULOGIO S.
CECILIO, DIRECTOR; EMILIO A. GONZALES III, DEPUTY OMBUDSMAN FOR THE MILITARY
AND OTHER LAW ENFORCEMENT OFFICES; OMBUDSMAN MERCEDITAS GUTIERREZ; and
LIEUTENANT GENERAL ALEXANDER B. YANO, COMMANDING GENERAL, PHILIPPINE ARMY, Respondents. |
|
G.R. No. 184645 Present: QUISUMBING,*
J., CARPIO,
Chairperson, CHICO-NAZARIO, PERALTA,
and ABAD,** JJ Promulgated: October 30, 2009 |
x- - - - - - - - - - - - - -
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CHICO-NAZARIO, J.:
This Petition
for Certiorari under Rule 65 of the
Revised Rules of Court assails the Resolutions dated 6 August 2008[1]
and 22 September 2008[2] of
the Court of Appeals in CA-G.R. SP. No. 102874, denying the prayer of
petitioner Major General Jose T. Barbieto (Maj. Gen. Barbieto) for a temporary
restraining order (TRO) and/or writ of preliminary injunction to enjoin his
arrest and confinement, and/or lift the preventive suspension order issued by
the Office of the Deputy Ombudsman for the Military and other Law Enforcement
Offices (ODO-MOLEO) and the warrant of arrest and confinement issued by
Lieutenant General Alexander B. Yano (Lt. Gen. Yano), Commanding General (CG)
of the Philippine Army (PA).
Facts of the Case
Maj. Gen. Barbieto is the Division
Commander of the 4th Infantry Division, PA, Camp Edilberto
Evangelista, Cagayan de Oro City.
Several Complaint-Affidavits were
filed before the ODO-MOLEO by various personnel of the 4th Infantry
Division, PA, against Maj. Gen. Barbieto and his alleged bagman Staff Sergeant
Roseller A. Echipare (S/Sgt. Echipare), charging the latter two with grave
misconduct and violation of Republic Act No. 6713. Maj. Gen. Barbieto and S/Sgt. Echipare, for
allegedly committed the following: (a) extortion of amounts ranging from P25,000.00
to P30,000.00 from applicants in order to guarantee their enlistment in
the Philippine Army; (b) extortion of money from soldiers seeking
reinstatement, in exchange for Maj. Gen. Barbieto’s approval of their
reinstatement, despite previous disapproval of said soldiers’ requests for
reinstatement by the 4th Infantry Division Reinstatement Board; and
(c) anomalies in the clearing of payroll of the Balik Baril program fund of the Armed Forces of the Philippines
(AFP). The administrative case against
Maj. Gen. Barbieto and S/Sgt. Echipare was docketed as OMB-P-A-08-0201-B, and
the criminal case was docketed as OMB-P-C-08-0204-B.[3]
On
WHEREFORE in accordance with Section 24 of Republic
Act 6770 and Section 9 Rule III of Administrative Order No. 7 respondents MAJOR
GENERAL JOSE T. BARBIETO and SSGT ROSELLER A. ECHEPARE are hereby PREVENTIVELY
SUSPENDED during the pendency of this case until its termination, but not to
exceed the total period of six (6) months, without pay. In case of delay in the
disposition of the case due to the fault, negligence or any cause attributable
to the respondents, the period of such delay shall not be counted in computing
the period of the preventive suspension.
In accordance with Section 27, paragraph (1) of
Republic Act 6770, this Order is immediately executory. Notwithstanding any
motion, appeal or petition that may be filed by the respondents seeking relief
from this Order, unless otherwise ordered by this office or by any court of
competent jurisdiction, the implementation of this Order shall not be
interrupted within the period prescribed.
The Chief of Staff GENERAL HERMOGENES ESPERON of the
Armed Forces of the Philippines is hereby directed to implement this Order
immediately upon receipt hereof, and to notify this Office within five (5) days
from said receipt of the status of said implementation.
Maj. Gen. Barbieto filed a Motion for
Reconsideration[5] of the
foregoing Order.
Simultaneous
with the proceedings before the ODO-MOLEO, the Army Investigator General (AIG)
was also conducting an investigation on the same charges against Maj. Gen. Barbieto
and S/Sgt. Echipare. The AIG
recommended, and Lt. Gen. Yano, as CG-PA, approved, the indictment of Maj. Gen.
Barbieto for violations of Articles 55 (Officer Making Unlawful Enlistment), 96
(Conduct Unbecoming of an Officer and a Gentleman), and 97 (Conduct Prejudicial
to Good Order and Military Discipline); and of S/Sgt. Echipare for violations
of Articles 96 and 97, all of the Articles of War.[6]
On
Lt. Gen. Yano subsequently issued on
13 March 2008 an Order for the “Arrest
and Confinement of Major General Barbieto AFP and SSG Echipare PA,”
directing the Commander of the Headquarters and Headquarters Support Group
(HHSG), PA, “to arrest and take responsibility of Major General Barbieto and
SSG Echipare PA x x x and to restrict them to quarters pending investigation
with the end view of a General Court Martial Trial.”[8] Pursuant to this Order of Arrest, Maj. Gen.
Barbieto was arrested and confined to cluster officer housing, while S/Sgt.
Echipare was transferred to and detained at the Custodial Management Unit
(CMU),
On
Without waiting for the resolution by
the ODO-MOLEO of his Motion for Reconsideration of the preventive suspension
order issued against him in OMB-P-A-08-0201-B, Maj. Gen. Barbieto filed before
the Court of Appeals a Petition for Certiorari with Prayer for the
Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction,[11] docketed
as CA-G.R. SP. No. 102874. Maj. Gen.
Barbieto specifically prayed for: (1) the issuance of a TRO enjoining
respondents Mary Rawnsle V. Lopez (Lopez), Graft Investigation and Prosecution
Officer II; Eulogio S. Cecilio, Director; Emilio A. Gonzalez, Deputy Ombudsman
for MOLEO; and Orlando C. Casimiro, Acting Ombudsman, to lift and hold in
abeyance the preventive suspension order; and ordering Alexander B. Yano,
Lieutenant General, Commanding General of the Philippine Army to nullify the
warrant of arrest and confinement of petitioner; (2) the setting of a hearing
on the preliminary injunction; and (3) after hearing on the preliminary
injunction, the issuance of an order granting the injunction and making the
injunction permanent, and such other and further relief as the appellate court
may deem just and equitable in the premises.[12]
On
After
the parties submitted all the required pleadings, the Court of Appeals issued a
Resolution on
After due consideration of the factual circumstances
of the instant case, we find no compelling reason to issue an injunctive writ
and/or temporary restraining order.
The surrounding facts underpinning [Maj. Gen. Barbieto]’s
plea for the issuance of an injunctive relief are intimately related to and
inextricably intertwined with the issues raised in the instant Petition for
Certiorari.
Moreover, [Maj. Gen. Barbieto] failed to demonstrate
extreme urgency, as well as great or irreparable injury that he may suffer
while the instant Petition is pending adjudication. x x x.
x x x x
Here, [Maj. Gen. Barbieto] failed to at least show a
clear and unmistakable right entitling him to the issuance of a writ of
preliminary injunction and/or temporary restraining order.[14] (Emphasis supplied.)
The dispositive portion of the
Resolution reads:
WHEREFORE, [Maj. Gen. Barbieto]’s prayer for the issuance of a
temporary restraining order and/or writ of preliminary injunction is hereby DENIED.[15]
Maj. Gen.
Barbieto moved for reconsideration of the aforementioned Resolution, but the
Court of Appeals, in its Resolution[16] dated
The Court
of Appeals decreed in its
In fine, [Maj. Gen. Barbieto]’s Motion for
Reconsideration proffers no substantial issue which may warrant reversal of the
assailed Resolution.
WHEREFORE, the instant Motion for Reconsideration is hereby DENIED for lack of merit.[17]
Hence, Maj. Gen. Barbieto filed the
instant Petition before this Court, raising the following issues:
I.
THE HONORABLE
COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN DENYING PETITIONER’S PRAYER FOR INJUNCTIVE RELIEF
WITHOUT HEARING IN VIOLATION OF HIS RIGHT TO PROCEDURAL DUE PROCESS OF LAW.
II.
THE HONORABLE
COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN RULING THAT PETITIONER FAILED TO DEMONSTRATE EXTREME
URGENCY AS WELL AS GREAT OR IRREPARABLE INJURY THAT HE MAY SUFFER THAT SHOULD
MERIT THE GRANT OF INJUNCTIVE RELIEF.
III.
THE HONORABLE
COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN RULING THAT PETITIONER MAY BE FURTHER DEPRIVED OF THE
PRIMORDIAL RIGHT TO LIBERTY GUARANTEED IN THE CONSTITUTION BY A MERE PROCEDURAL
CONSIDERATION THAT THE INJUNCTIVE RELIEF IS INEXTRICABLY INTERTWINED WITH THE
ISSUES RAISED IN THE PETITION.
During the pendency of the present
Petition, an Order,[18]
prepared by respondent Lopez on 27 March 2008, but approved by Ombudsman
Merceditas N. Gutierrez only on 7 November 2008, denied Maj. Gen. Barbieto’s
Motion for Reconsideration of the preventive suspension order previously issued
against Maj. Gen. Barbieto and S/Sgt. Echipare in OMB-P-A-08-0201-B. The Order cited the power of the Office of
the Ombudsman to preventively suspend any public officer under Republic Act No.
6770, otherwise known as the Ombudsman Act of 1989, provided that the essential
requisites under Section 24 thereof are present. The Order pointed out that this power of the
Office of the Ombudsman had long been respected by the Supreme Court.
Maj. Gen. Barbieto’s claim that he
was denied his constitutional right to due process was rejected in this latest
Ombudsman Order, because:
The above-concept [of due process] is not a fixed or
static one, as clearly acknowledged.
What is due process of the law depends on circumstances, it varies with
the subject matter and necessities of the situation (Bernas, Joaquin. The Constitution of the Republic of the
Considering however, that this is an administrative
case, the Supreme Court has recognized that there are two (2) types of
preventive suspension. Preventive suspension as a preventive
measure and suspension as penalty. x x x.
x x x x
In the instant case, it is clear that the suspension
issued is a mere preliminary step and not a penalty. Thus, the strict adherence to the rudiments
of notice and hearing need not be applied due to the immediate nature of the
action.[19]
The same Ombudsman Order rebuffed Maj.
Gen. Barbieto’s contention that there was forum shopping, given the existence
of two similar administrative cases against him: one, OMB-P-A-08-0201-B before
the Office of the Ombudsman; and two, before the military tribunal. OMB-P-A-08-0201-B determines Maj. Gen.
Barbieto’s fitness as a public officer; whereas the pending administrative case
before the Provost Marshall General, PA, determines his fitness and efficiency
as a military officer.
Therefore, the ultimate ruling in
said Ombudsman Order is as follows:
WHEREFORE, premises considered, the Motion for
Reconsideration dated
Arguments of the Parties
Maj. Gen. Barbieto avers in the
Petition[21] at bar
that the Court of Appeals committed grave abuse of discretion amounting to lack
or excess of jurisdiction in denying his prayer for preliminary injunctive
relief without hearing, in violation of his right to procedural due process of
law; in finding that he failed to demonstrate extreme urgency, as well as great
or irreparable injury that he may suffer from respondents’ acts, which would
have merited the grant of a TRO and/or writ of preliminary injunction; and in
ruling that the preliminary injunctive relief prayed for is inextricably
intertwined with the issues raised in his Petition in CA-G.R. SP
No. 102874.
Maj. Gen. Barbieto insists that his
right to procedural due process was violated by the Court of Appeals when said
court denied his prayer for a TRO and/or writ of preliminary injunction without
a hearing. Maj. Gen. Barbieto invoked
Supreme Court Administrative Circular No. 20-95, which provides that “an
application for TRO shall be acted upon only after all parties are heard in a
summary hearing x x x.”[22]
Maj. Gen. Barbieto further argues
that all elements to warrant the grant of a writ of preliminary injunction are
present in this case. His preventive
suspension, merely a step in the administrative investigation against him, had
already expired on
The Office of the Ombudsman counters
that Maj. Gen. Barbieto’s reliance on Administrative Circular No. 20-95 is
misplaced, for the same applies to trial courts only. Referring to Section 4, Rule VI of the 2002
Internal Rules of the Court of Appeals, the Office of the Ombudsman posits that
procedural due process has been satisfied by the appellate court when the
latter issued a resolution requiring the party, whose act was sought to be
enjoined, to file a comment on the application for a TRO. The denial by the Court of Appeals of Maj.
Gen. Barbieto’s prayer for preliminary injunctive relief was grounded on both
legal and logical considerations. The
grant of the ancillary remedy of TRO and/or writ of preliminary injunction
would have resulted in a premature resolution of the main case of certiorari in CA-G.R. SP
No. 102874 before the
merits of the latter could be passed upon.
The Office of the Ombudsman contends,
likewise, that the expiration of Maj. Gen. Barbieto’s six-month preventive
suspension on
Lastly, the Office of the Ombudsman
maintains that none of the requisites for the issuance of a TRO and/or writ of
preliminary injunction exists in the instant case. Maj. Gen. Barbieto’s proper recourse is to
just await the resolution of his Petition for Certiorari in CA-G.R. SP No. 102874 still pending before the Court of Appeals, which involved
the issue of the legality of his continued confinement.
Lt.
Gen. Yano substantially joins in and/or adopts the arguments of the Office of
the Ombudsman. He additionally asserts
that there is no reason to enjoin the enforcement of the Order of Arrest
against Maj. Gen. Barbieto, citing his authority as CG-PA to issue the same,
pursuant to the Articles of War.
The Ruling of the Court
At the onset, the Court must clarify
that Maj. Gen. Barbieto is actually seeking a TRO and/or a writ of preliminary
injunction to enjoin the implementation of two distinct orders, issued by two
different persons, in two separate proceedings: (1) the preventive suspension
order issued by the ODO-MOLEO in OMB-P-A-08-0201-B; and (2) the Order of Arrest
issued by Lt. Gen. Yano as CG-PA in view of the impending General Court Martial
Trial.
The preventive suspension order
issued by the ODO-MOLEO merely suspended Maj. Gen. Barbieto from his office for
six months, pending the administrative proceedings against the latter.[23] There is nothing in said preventive
suspension order of the ODO-MOLEO that directed Maj. Gen. Barbieto’s
arrest. His arrest and continued
confinement is solely by virtue of Lt. Gen. Yano’s Order.
The Court takes note of the
undisputed fact that Maj. Gen. Barbieto’s six-month suspension, imposed by the
ODO-MOLEO in an Order dated
Time and again, courts have refrained
from even expressing an opinion in a case where the issues have become moot and
academic, there being no more justiciable controversy to speak of, so that a
determination thereof would be of no practical use or value.[25] Where the issue has become moot and academic,
there is no actual substantial relief to which Maj. Gen. Barbieto would be
entitled and which would be negated by the dismissal of his Petition as regards
the preventive suspension order of the ODO-MOLEO.[26]
Similarly, the Court finds the
present Petition, insofar as it concerns Lt. Gen. Yano’s Order of Arrest
against Maj. Gen. Barbieto, dismissible for lack of merit.
Sine dubio,
the grant or denial of a writ of preliminary injunction in a pending case rests
on the sound discretion of the court taking cognizance of the case, since the
assessment and evaluation of evidence towards that end involves findings of
facts left to the said court for its conclusive determination. Hence, the
exercise of judicial discretion by a court in injunctive matters must not be
interfered with, except when there is grave abuse of discretion.[27]
Grave abuse of discretion means such
capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. Mere abuse of discretion
is not enough. It must be grave abuse of
discretion, as when the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, and must be so patent and so gross
as to amount to an evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law.[28] The Court of Appeals did not gravely abuse
its discretion in refusing to issue a TRO and/or writ of preliminary injunction
to enjoin the enforcement of Lt. Gen. Yano’s Order of Arrest against Maj. Gen.
Barbieto.
Maj. Gen. Barbieto cannot
rely on Supreme Court Administrative Circular No. 20-95, providing special
rules for temporary restraining orders and preliminary injunctions, to support
his claim that he was denied due process when the Court of Appeals denied his
prayer for the issuance of a TRO and/or writ of preliminary injunction without
first conducting a summary hearing.
The whole text of said
Administrative Circular is reproduced below:
2. The application for a TRO shall be acted
upon only after all parties are heard in a summary hearing conducted within
twenty-four (24) hours after the records are transmitted to the branch selected by raffle. The records shall be
transmitted immediately after raffle.
3. If the matter is of extreme urgency, such
that unless a TRO is issued, grave injustice and irreparable injury will arise,
the Executive Judge shall issue the
TRO effective only for seventy-two (72) hours from issuance but shall
immediately summon the parties for conference and immediately raffle the case
in their presence. Thereafter, before the expiry of the seventy-two (72) hours,
the Presiding Judge to whom the case
is assigned shall conduct a summary hearing to determine whether the TRO can be
extended for another period until a hearing in the pending application for
preliminary injunction can be conducted. In no case shall the total period of
the TRO exceed twenty (20) days, including the original seventy-two (72) hours,
for the TRO issued by the Executive Judge.
4. With the exception of the provisions which
necessarily involve multiple-sala
stations, these rules shall apply to single-sala
stations especially with regard to immediate notice to all parties of all
applications for TRO.
For immediate compliance. (Emphases ours.)
Maj. Gen. Barbieto
overlooked that Supreme Court Administrative Circular No. 20-95 pertains to
applications for TROs and/or writs of preliminary injunctions filed before
trial courts, whether multi-sala or
single-sala.
The Court of Appeals has
its own Internal Rules.
Section 2, Rule IV of the
2002 Internal Rules of the Court of Appeals provides the following procedure in
the case of a petition involving an urgent matter, such as an application for a
TRO:
Sec. 2. Action
by the Presiding Justice. – When a petition involves an urgent matter,
such as an application for writ of habeas
corpus or temporary restraining order, and there is no way of convening the
Raffle Committee or calling any of its members, the Presiding Justice may
conduct the raffle or act on the petition, subject to raffle on the next
working day in accordance with Rule III hereof. (Emphasis ours.)
Noticeably, under the aforementioned
circumstances, the Presiding Justice of the Court of Appeals may even, by
himself, act on an urgent application for a TRO. There is no mention at all of the requirement
that the Presiding Justice must hold a summary hearing prior to granting or
denying such an application.
As for a preliminary injunction,
Section 4, Rule VI of the 2002 Internal Rules of the Court of Appeals lays down
the following procedure:
Sec. 4. Hearing on Preliminary
Injunction. — The requirement
of a hearing on an application for preliminary injunction is satisfied with the
issuance by the Court of a resolution served upon the party sought to be enjoined
requiring him to comment on said application within a period of not more
than ten (10) days from notice. Said party may attach to his comment
documents which may show why the application for preliminary injunction should
be denied. The Court may require the party seeking the injunctive relief
to file his reply to the comment within five (5) days from receipt of the
latter.
If the party sought to be enjoined fails to
file his comment as provided for in the preceding paragraph, the Court may
resolve the application on the basis of the petition and its annexes.
The preceding paragraphs,
notwithstanding, the Court may, in its sound discretion, set the application
for a preliminary injunction for hearing during which the parties may
present their respective positions or submit evidence in support thereof.
(Emphases ours.)
Based on the foregoing rule, the
Court of Appeals clearly satisfied the requirement of a hearing when, in its
Resolution dated 4 April 2008 in CA-G.R. SP No. 102874, it directed respondents to submit
their comment on Maj. Gen. Barbieto’s prayer for the issuance of a TRO and/or
writ of preliminary injunction within ten days from notice.[29] While it is true that the right to due
process safeguards the opportunity to be heard and to submit any evidence one
may have in support of his claim or defense, the Court has time and again held
that where the opportunity to be heard, either through verbal arguments or
pleadings, is accorded, and the party can “present its side” or defend its
“interest in due course,” there is no denial of due process. What the law
proscribes is the lack of opportunity to be heard.[30]
The last paragraph of Section 4, Rule
VI of the 2002 Internal Rules of the Court of Appeals also proves false Maj.
Gen. Barbieto’s contention that the actual conduct of a hearing on an
application for preliminary injunction is mandatory. Said rule explicitly states that the setting
of a hearing on such an application is left to the sound discretion of the
appellate court. Hence, it is not enough
for Maj. Gen. Barbieto to show that no hearing on his application for TRO
and/or preliminary injunction was conducted by the Court of Appeals, but he must
also be able to convince this Court that the appellate court gravely abused its
discretion in choosing not to conduct such a hearing. Maj. Gen. Barbieto likewise failed in this
regard.
The Court, in Philippine Ports Authority v. Cipres Stevedoring & Arrastre, Inc.,[31]
provided the following elucidation on the general principles in issuing a writ
of preliminary injunction:
A preliminary injunction is an order granted at any
stage of an action prior to judgment of final order, requiring a party, court,
agency, or person to refrain from a particular act or acts. It is a
preservative remedy to ensure the protection of a party’s substantive rights or
interests pending the final judgment in the principal action. A plea for
an injunctive writ lies upon the existence of a claimed emergency or
extraordinary situation which should be avoided for otherwise, the outcome of a
litigation would be useless as far as the party applying for the writ is
concerned.
At times referred to as the “Strong Arm of Equity,” we
have consistently ruled that there is no power the exercise of which is more
delicate and which calls for greater circumspection than the issuance of an
injunction. It should only be extended
in cases of great injury where courts of law cannot afford an adequate or
commensurate remedy in damages; “in cases of extreme urgency; where the
right is very clear; where considerations of relative inconvenience bear
strongly in complainant’s favor; where there is a willful and unlawful invasion
of plaintiff’s right against his protest and remonstrance, the injury being a
continuing one, and where the effect of the mandatory injunction is rather to
reestablish and maintain a preexisting continuing relation between the parties,
recently and arbitrarily interrupted by the defendant, than to establish a new
relation.”
For the writ to issue, two requisites must be present,
namely, the existence of the right to be protected, and that the facts against
which the injunction is to be directed are violative of said right. x x x.
A writ of preliminary injunction may
be granted only upon showing by the applicant of a clear and unmistakable right
that is a right in esse. Maj.
Gen. Barbieto claims that his right in esse
that is being violated herein is his right to liberty.
Indeed, Section I,
Article III of the 1987 Constitution, guarantees that no person may be deprived
of life, liberty, or property without due process of law. Also, the Republic of the
Nevertheless, the right
to liberty is not absolute. It bears to
point out that while both the 1987 Constitution and the UDHR affirm the right
of every person to liberty, they do concede that there are instances when a
person must be deprived thereof for as long as due process of law has been observed.
Thus, Maj. Gen. Barbieto
cannot just invoke herein his fundamental right to liberty; upon him also falls
the burden of proving that he is being deprived of such right without due
process.
To recall, Lt. Gen. Yano ordered Maj.
Gen. Barbieto’s arrest after the conduct of an investigation by and the
recommendation of the AIG that Maj. Gen. Barbieto be charged before a court
martial with violations of Articles 55 (Officer Making Unlawful Enlistment), 96
(Conduct Unbecoming of an Officer and Gentleman), and 97 (Conduct Prejudicial
to Good Order and Military Discipline) of the Articles of War. Since Maj. Gen. Barbieto is being charged
with serious offenses, Lt. Gen. Yano issued the Order of Arrest for the former
under Article 70 of the Articles of War:
Art. 70. Arrest or Confinement. – Any
person subject to military law charged with crime or with a serious offense
under these articles shall be placed in confinement or in arrest, as
circumstances require; but when charged with a minor offense only, such
person shall not ordinarily be placed in confinement. Any person placed in
arrest under the provisions of this Article, shall thereby be restricted to his barracks, quarters or
tent, unless such limits shall be enlarged by proper authority. Any officer
or cadet who breaks his arrest or who escapes from confinement, whether before
or after trial or sentence and before he is set at liberty by proper authority,
shall be dismissed from the service or suffer such other punishment as a
court-martial may direct, and any other person subject to military law who
escapes from confinement or who breaks his arrest, whether before or after
trial or sentence and before he is set at liberty by proper authority, shall be
punished as a court martial may direct. (Emphases ours.)
Now, is Lt. Gen. Yano’s
issuance of the Order of Arrest under the aforedescribed circumstances
violative of Maj. Gen. Barbieto’s right to liberty and due process? The Court accords to Lt. Gen. Yano the
presumption of good faith and regularity in the issuance of said Order of
Arrest, having done the same in the course of the performance of his official
duties. Other than this, the Court
cannot make any more pronouncements on the matter. Suffice it to say that the need for a more
extensive determination of said question, by itself, already negates Maj. Gen.
Barbieto’s insistence of a clear and well-established right that warrants the
protection of a TRO and/or writ of preliminary injunction. Where the complainant’s (or in this case,
petitioner’s) right is doubtful or disputed, injunction is not proper.[33]
The Court must limit
itself in the Petition at bar to the issue on the non-issuance by the Court of
Appeals of a TRO and/or writ of preliminary injunction to prevent the
enforcement of Maj. Gen. Barbieto’s arrest.
It must be careful not to preempt the resolution by the Court of Appeals
of Maj. Gen. Barbieto’s Petition for Certiorari
in CA-G.R. SP No. 102874, wherein the propriety of his arrest and continued
confinement is one of the central issues.
The prevailing rule is that the
courts should avoid issuing a writ of preliminary injunction that would in
effect dispose of the main case without trial. Otherwise, there would be a
prejudgment of the main case and a reversal of the rule on the burden of proof,
since such issuance would assume the proposition that Maj. Gen. Barbieto is
inceptively bound to prove.[34]
WHEREFORE, the instant Petition is DISMISSED. The Resolutions
dated
SO ORDERED.
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MINITA V. CHICO-NAZARIOAssociate Justice |
WE
CONCUR:
Associate Justice
ANTONIO T. CARPIO
Associate Justice Chairperson |
DIOSDADO M. PERALTAAssociate Justice
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ROBERTO A. ABAD Associate Justice |
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ATTESTATION
I attest that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
ANTONIO T. CARPIO
Associate
Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII
of the Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
REYNATO S. PUNO
Chief Justice
* Per
Special Order No. 755, dated
** Per
Special Order No. 753, dated
[1] Penned by Associate Justice Japar B. Dimaampao with Associate Justices Amelita G. Tolentino and Sixto C. Marella, Jr., concurring; rollo, pp. 30-33.
[2] Rollo, pp. 23-25.
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12] CA rollo, pp. 2-20.
[13] Rollo, p. 182.
[14]
[15]
[16]
[17]
[18] See Office of the Ombudsman’s back-up file.
[19]
[20]
[21] Rollo, pp. 3-18.
[22] Paragraph (2) of Supreme Court
Administrative Circular No. 20-95.
[23] The authority of the ODO-MOLEO to suspend Maj. Gen. Barbieto is rooted in Section 24 of Republic Act No. 6770, which reads:
SEC. 24. Preventive Suspension. -- The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; or (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by
the Office of the Ombudsman but not more than six months, without pay, except
when the delay in the disposition of the case by the Office of the Ombudsman is
due to the fault, negligence or petition of the respondent, in which case the
period of such delay shall not be counted in computing the period of suspension
herein provided.
[24]
[25] Engaño
v. Court of Appeals, G.R. No. 156959,
[26] Gancho-on v. Secretary of Labor and Employment, 337 Phil. 654, 658 (1997).
[27] Cortez-Estrada v. Heirs of Domingo Samut, 491 Phil. 458, 473-474 (2005).
[28] Neri v. Senate Committee on Accountability of
Public Officers and Investigations, Senate Committee on Trade and Commerce, and
Senate Committee on National Defense and Security, G.R. No. 180643,
25 March 2008, 549 SCRA 77, 131.
[29] Rollo, p. 182.
[30] Ko
v. Philippine National Bank, G.R. Nos. 169131-32,
[31] G.R. No. 145742,
[32] See The Secretary of National Defense v. Manalo, G.R. No. 180906,
[33] Tayag
v. Lacson, G.R. No. 134971,
[34] See Philippine Ports Authority v. Pier 8 Arrastre & Stevedoring
Services, Inc., G.R. Nos. 147861 & 155252,