REPUBLIC OF THE PHILIPPINES Supreme Court MANILA EN BANC JOSE MIGUEL T. ARROYO, Petitioner, -versusSEC. LEILA M. DE LIMA, et al.

, Respondents. G.R. No. 199046

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MOTION FOR VOLUNTARY INHIBITION

COMES NOW PETITIONER, through the undersigned counsel, and unto this Honorable Court, most respectfully states that: I. PREFACE it is made clear to the occupants of the bench that outside of pecuniary interest, relationship or previous participation in the matter that calls for adjudication, there may be other causes that could conceivably erode the trait of objectivity, thus calling for inhibition. That is to betray a sense of realism, for the factors that lead to preferences or predilections are many and varied. It is well, therefore, that if any such should make its appearance and prove difficult to resist, the better course for a judge is to disqualify himself. That way, he avoids being misunderstood. His reputation for probity and objectivity is preserved. What is even more important, the ideal of an impartial administration of justice is lived up to. Thus is due process vindicated. (Mateo, et al. v. Hon. Villaluz, G.R. Nos. L-34756-59 March 31, 1973)
Thereby,

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II. NATURE OF MOTION 1. This is a motion respectfully imploring that Madame Chief Justice Lourdes Sereno forthwith voluntarily RECUSE herself from the aboveentitled case, on the following III. GROUNDS
A.

That the Chief Justice has demonstrated bias and partiality towards the present administration, whose alter ego the Secretary of Justice is one of the respondents in this case, as shown by her voting record in previous cases;

B.

That the Chief Justice is subservient to the Aquino-Cojuangco Family, whose interests cannot be divorced from the instant case, as shown by antecedent facts, and one of whose members the incumbent President has shown unwarranted interest in the outcome of the present case; and

C.

That the Chief Justice has prejudged the case, as evidenced by her dissents in the instant case, where she showed a strong inclination to favor the government. IV. DISCUSSION

A. That the Chief Justice has demonstrated bias and partiality towards the present administration, whose alter ego the Secretary of Justice is one of the respondents in this case, as shown by her voting record in previous cases

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2. Judicial notice may be taken of how Chief Justice Sereno had always voted in favor of the present administration in a slew of important cases, to wit: a. The Truth Commission (Biraogo v. Truth Commission and companion cases, G.R. No. 192935 192936, 07 December 2010): The majority ruled that the Commission, which was formed specifically to probe the administration of former President Gloria Macapagal-Arroyo, was unconstitutional. Chief Justice Sereno, then Associate Justice, voted otherwise; b. The Impeachment of Ombudsman Merceditas

Gutierrez (Gutierrez v. House of Representratives, G.R. NO. 193459, 08 March 2011): The then Ombudsman Gutierrez had asked this Court in September 2010 to stop the Committee on Justice in the House of Representatives from proceeding with the impeachment hearing against her. The majority voted to grant her prayer for a status quo ante order; then Justice Sereno dissented; c. The Arroyo DOJ Watchlist Cases (Jose Miguel Arroyo v. Sec. De Lima, et al., G.R. Nos. 199046 [the present case] and companion case): The issuance of a TRO sought by former President Arroyo and her husband Jose Miguel (herein Petitioner): This Court issued a TRO which stopped the Department of Justice from enforcing its travel ban against the Arroyo couple. Sereno disagreed with the decision, with attendant extraordinary circumstances as shall be discussed infra; d. The PS Bank Dollar Account Case (Philippine Savings Bank v. Senate Impeachment Court, G.R. No. 200238, 09 February 2012): PS Bank had sought a TRO from this Court after then Chief Justice Corona's dollar accounts were brought up in his impeachment trial at the Senate, on the ground that under the law, foreign currency

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deposit accounts (FCDAs) were absolutely privileged. The majority voted for the issuance of the TRO. Chief Justice Sereno dissented; e. The release of SC records and appearance of Court employees in Corona's impeachment trial (Per Curiam Resolution dated 14 February 2012): A majority resolution stopped court employees from testifying in the Impeachment Trial. But then Associate Justice Sereno, in a separate opinion, voted in favor of providing the Senate with Court documents related to the allegations brought up by the prosecution against then Chief Justice Corona, as well as in allowing Court employees to testify before the impeachment court. 3. Parenthetically, Chief Justice Sereno was one of those who was asked to testify against CJ Corona at the time, and who evinced a willingness to testify to explain my dissent, but the SC barred her from testifying. 4. All of the above instances illustrate in big bright impasto strokes the propensity of CJ Sereno to vote blindly and consistently in favor of the stand of the present administration whenever it has shown its unequivocal interest and at times a direct hand in a desired result from the Supreme Court. This may be a consequence of her having been plucked from relative obscurity and appointed Associate Justice by the sitting President, a debt of gratitude now magnified many times over by her recent appointment as Chief Justice. 5. In the case at bar, the present government has made it clear, in various public pronouncements, that it considers as top priority the continued incarceration of the Petitioner and his immediate family, particularly former President Arroyo. Thus, as we stated in the prefatory statement of our main Petition, as early as 29 September 2011, President

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Aquino had already declared that (w)e will be filing one case after the other. We will start in November.1 In the same vein was the Presidents speech before the Foreign Correspondents Association of the Philippines in October of 2011: With respect to the filing of charges, the best information or the latest information that I have is that by November we will be filing charges. So that there can be no mistake as to what the President meant, his redoubtable spokesman emphatically said that but those orders have already been given, the statement has been made, and as public officials., we intend to follow and comply with the orders of the President.2 6. Part and parcel of this declared state policy of the quaintly-labelled Daang Matuwid is the use of the assailed DOJ Department Circular to keep the Arroyos inside the country in violation of important constitutional rights. Being supremely compliant to the will of the present occupant of Malacanang, it is more than a fair expectation to anticipate the Chief Justices vote in favor of the governments position in this case, regardless of the merits. B. That the Chief Justice is subservient to the AquinoCojuangco Family, whose interests cannot be divorced from the instant case, as shown by antecedent facts, and one of whose members the incumbent President has shown unwarranted interest in the outcome of the present case

7. As we said, the main respondent in this case is the Secretary of Justice, an alter ego of the President, Benigno Aquino III, whose family has been previously favored and in a big way by the present Chief Justice.

President Benigno Aquino III, quoted in the Manila Standard Today, 29 September 2011 Noy himself ordered raps filed vs. GMA, Philippine Daily Inquirer, 14 October 2011

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8. In G.R. No. 171101 (Hacienda Luisita Inc. v. Presidential Agrarian Reform Council, et al., 24 April 2012), the majority of this Court voted to peg the land valuation of the (in)famous Hacienda Luisita for the purpose of determining just compensation for the Cojuangco family (the family of President Aquino's mother) at the value the 1989 fair market value of P40,000 per hectare); the incumbent Chief Justice voted to fix its value at a considerably more astronomical and infinitely more favorable to the Cojuangcos -- 2006 value of P2.5 million per hectare. Zounds!! 9. To repeat, now that CJ Sereno has been favored by the President an Aquino-Cojuangco -- twice over, her proclivity to vote in a manner favorable to the Aquino-Cojuangco clan, has also multiplied. C. That the Chief Justice has prejudged the case, as evidenced by her dissents in the instant case, where she showed a strong inclination to favor the government. 10. What is most telling, insofar as the recusation of the Chief Justice is warranted, are her dissents, where the Chief Justice bent over backwards figuratively, of course in order to accommodate the position of the government. 11. For one, in her dissent dated 18 November 2011 with respect to the question of the issuance of a TRO in the present case, as well as that in a companion case -- G.R. No. 199034 (Gloria Macapagal-Arroyo v. Hon. De Lima) -- the Chief Justice, even as then just an Associate Justice, inexplicably took the liberty of summarizing the voting made during the deliberations, which was done, as will be shown, to undermine the pronouncement of the majority that the TRO was immediately executory. In judicial experience, it is the Chief Justice who summarizes the votes of the Court in a complex case, to clarify the individual positions of the

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magistrates, as was done by CJ Concepcion in Javella v. Executive Secretary (50 SCRA 30, at 137 et seq. [1973]). 12. That particular dissent also contained some oddities showing overweening bias, such as:
a. A statement referring to Petitioners PhP2 Million peso bond as

crumbs for one who, if proven, has actually obtained multiples more from the countrys coffers;3
b.

An admonition directed at the majority not to feed those passions of the people which she says are highly inflamed by asking the respondent DOJ Secretary to show cause why she should not be cited for openly defying the TRO;4 and

c. Berating the Clerk of Court and the Court Administrator for

announcing that the TRO was in full force and effect when it was purportedly the understanding of the majority that it was not so, which was not only untrue, but utterly strange under the circumstances. 13. No less strange are the pronouncements of Madame Chief Justice Sereno in her dissent of 13 December 2011 which, according to Mr. Justice Velasco in his separate opinion of the same date -- was filed late and in contravention of Section 2, Rule 10 of the Internal Rules of the SC relating to confidentiality of the High Courts deliberations. It must be judicially noted that, as if on cue, the respondent Secretary of Justice De Lima made much capital of the said Sereno dissent in her public justifications as to why she (De Lima) brazenly disregard this Courts TRO.5 14. The actions of the Honorable Chief Justice were so out of the ordinary that it prompted Mr. Justice Abad to remark in his concurring
3

Sereno Dissenting Opinion dated 18 November 2011, p. 5 Idem, at p. 7

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opinion also of 13 December 2011 that (i)f our deliberations cannot remain confidential, we might as well close down business. 15. Those mentioned show beyond peradventure that CJ Sereno was consistently towing the Aquino Governments line that Petitioner Arroyo and his wife are already guilty of plundering the public treasury, that they should be forcibly kept within the country, and that in fact it was justifiable for the DOJ to disregard a lawfully-issued TRO from this Court. By these, she has shown early on where her loyalties lie, and how she will vote. Her neutrality has been neutered. 16. Section 1, Rule 137 of the Rules of Court says that:
Section 1. Disqualification of judges.No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them and entered upon the record. A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for

www.mb.com.ph/node/352230/de-lima-pin, (February 22, 2012), reads, insofar as relevant: De Lima Pins Down CJ xxx De Lima cited in particular the dissenting opinion of Justice Lourdes Sereno on December 2, 2011, where the latter noted how the Supreme Court Justices voted on the TRO; newsinfo.inquirer.net/.../prosecutors-wishjustice-sereno-volunteers, (February 24, 2012) reads, insofar as relevant: xxx On Day 23 of the trial, De Lima said Corona had ascendancy over the other Supreme Court justices, citing as basis Serenos dissenting opinion on the TRO on a justice department travel ban on former President and now Pampanga Representative Gloria MacapagalArroyo; www.manilatimes.net/.../17777-de-lima-chief-justice-alone-cant-issue (February23,2012), reads, insofar as relevant: xxx...During her testimony, de Lima cited the dissenting opinion of Associate Justice Maria Lourdes Sereno regarding the supposed instruction of Corona to Presbiterio Velasco to not promulgate the High Court magistrates dissenting opinion on December 2 that showed the Chief Justices influence on the other justices.

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just or valid reasons other than those mentioned above. (emphasis supplied)

17. Pardon us for presenting this Court with an idle parade of familiar learning, but we must cite some authorities to support our prayer. 18. Our Bill of Rights guarantees that "[n]o person shall be held to answer for a criminal offense without due process of law."6 A critical component of due process is a hearing before an impartial and disinterested tribunal; an unbroken chain of jurisprudence teaches us that every litigant is entitled to nothing less than the cold neutrality of an impartial judge for all the other elements of due process, like notice and hearing, would be meaningless if the ultimate decision would come from a partial and biased judge.7 Well-known is the judicial norm that judges should not only be impartial but should also appear impartial.8 19. By acting the way she did, the Chief Justice has shown that in deciding this case, she has put personal predilections over and above the letter of the law, to the extent of locking horns with the majority. She thus shows that deficiency in the requisite objectivity that should suffuse all the official acts of a judge. If she is to serve her oath well, she has no recourse but to recuse herself; there is no other way. After all, as Chief Justice Marshall once said in Osborne v. Bank of the United States:9 Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or in other words, to the will of the law." 20. In Latorre vs. Ansaldo10 this Court, ruling on a similar issue as the one herein raised, held that:
6

Section 14(1), Article III, 1987 Constitution

Tan, Jr. v. Gallardo, 73 SCRA 306 [1976]; Castillo v. Juan, 62 SCRA 124 [1975]; Mateo v. Villaluz, 50 SCRA 18 [1973]; Garcia v. Executive Secretary. 6 SCRA 1 [1962]
8
9

Dela Cruz v. Judge Bersamira, A.M. No. RTJ-00-1567, 19 January 2001 9 Wheat. 738, 866 A.M. No. RTJ-00-1563. May 31, 2001

10

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Judges must at all times maintain and preserve the trust and faith of parties litigants in the court's impartiality, and that the slightest doubt in the actions of a judge, whether well grounded or not, will leave the judge no better alternative than to rescue himself as the ideal mode to preserve the image of the judiciary.11 By inhibiting himself, he avoids being misunderstood, his reputation for probity and objectivity is preserved. More importantly, the ideal of impartial administration of justice is lived up to.12 In Orola vs. Alovera,13 We reiterated that when a judge exhibits actions that give rise, fairly or unfairly, to perceptions of bias, such faith and confidence are eroded, and he has no choice but to inhibit himself voluntarily. A judge may not be legally prohibited from sitting in a litigation, but when circumstances appear that will induce doubt on his honest actuation and probity in favor of either party, or incite such state of mind, he should conduct a careful selfexamination. He should exercise his discretion in a way that the peoples faith in the courts of justice is not impaired. The better course for the judge is to disqualify himself.14

21. And in Alejo vs. Pestao-Buted,15 the lack of faith of the litigant in respondent judge was declared as a valid cause to behoove the judge to recuse himself. Hence:
Given the prosecutions apparent lack of faith in respondent judge, she was placed in a difficult position. Should she acquit the accused, her decision will appear to be tainted with bias. Such a situation is highly detrimental, not only to the image of the trial court, but to the integrity of the judicial system. Like Caesars wife, a judge must be beyond suspicion and that he should maintain nothing less than cold neutrality and impartiality. Otherwise, the wisest course for a judge would be to disqualify himself.

IV. PRAYER

11

Gutang v. Court of Appeals, 354 Phil. 77 [1998].

12

Intestate Estate of the Late Vito Borromeo, Patrocinio Borromeo-Herrera v. Fortunato Borromeo and Hon. Francisco P. Burgos, Judge of the CFI of Cebu, Branch II, 152 SCRA 171 [1987], citing Bautista v. Rebueno, 1 SCRA 535 [1978].
13

G. R. No. 111074, July 14, 2000.

14

Orola v. Alovera, supra, Note 19, citing Garcia v. Burgos, 291 SCRA 546, 580 [1998], citing Bautista v. Rebueno, 81 SCRA 535, 538 [1978]; Bagunas v. Fabillar, 289 SCRA 383, 393 [1998].
15

G.R. Nos. 154150-51, December 10, 2007

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WHEREFORE, the foregoing considered, it is most respectfully prayed that Madame Chief Justice Maria Lourdes Sereno voluntarily RECUSE herself from further and other proceedings in this case. Other and further reliefs as may be just and equitable in the premises are likewise prayed for. Pasig City for Manila, 05 September 2012.

TOPLAW
TOPACIO LAW OFFICE Counsel for Petitioner/Movant Suite 107, Skyway Twin Towers H.Javier Street, Ortigas Center Pasig City, Metro Manila Telephone Number (+632)5710270 Fax Number (+632)5711626 Email address: toplawoffice@gmail.com By: FERDINAND S. TOPACIO Attorneys Roll No. 38271 IBP Lifetime Membership No. 562537 PTR No. 6881405/1.24.12/ Pasig City MCLE COMPLIANCE NO. III-0017589 Issued 24 June 2010 and

JOSELITO O. LOMANGAYA IBP O.R. No. 878159/ 01.04.12/ Makati City PTR No. 1300321 / 01.03.12 / Mandaluyong Roll of Attorneys No. 47328 MCLE COMPLIANCE No. III - 0014660 Issued on 23 April 2010

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Copy furnished (registered mail with return card): Sec. Leila M. De Lima Department of Justice Padre Faura St., Ermita, Manila Hon. Ricardo V. Paras III Chief State Counsel, Department of Justice Padre Faura St., Ermita, Manila Hon. Ricardo A. David, Jr. Commissioner 2nd Floor, Bureau of Immigration Bldg. Magallanes Drive, Intramuros, Manila Office of the Solicitor General 134 Amorsolo St., Legaspi Village, Makati City VI. EXPLANATION Due to lack of available office/messengerial personnel, and distance constraints, services by registered mail of this motion on the other parties aforementioned were resorted to. F.S. TOPACIO

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