gov.garcia.ca.manifestation

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REPUBLIC OF THE PHILIPPINESCOURT OF APPEALS

MANILA

GWENDOLYN F. GARCIA,Petitioner,

- versus -CA-G.R. No. 127933(O.P CASE NO. 10-K-504)

THE COURT OF APPEALS,HON. GREGORIO G. SANCHEZ,

JR., VICE GOVERNOR OF THEPROVINCE OF CEBU, HON.EXECUTIVE SECRETARYPAQUITO M. OCHOA, JR., THEOFFICE OF THE PRESIDENT,HON. SECRETARY MAR A.ROXAS, and THE DEPARTMENTOF INTERIOR AND LOCALGOVERNMENT,

Respondents.x ----------------------------------------------------- x

MANIFESTATIONWith Supplemental Reply

PetitionerGWENDOLYN F. GARCIA, Governor of the Provinceof Cebu (Governor Garcia), by counsel, respectfully states:

1. On 10 January 2013, to present the factual and legalarguments of Governor Garcias application for a TemporaryRestraining Order (TRO), oral arguments were heard beforeJustices of the 12th Division of the Court of Appeals: AssociateJustices Vicente Veloso, Aurora Jane Lantion and Eduardo Peralta.

2. During the said oral arguments, Justice Veloso impressed uponboth parties that the Court of Appeals does not have the samepowers as the Supreme Court, as outlined in Article VIII, Section 1 ofthe Constitution.1 It was mentioned that the Court of Appeals cannot

1 Article VIII, Section 1 of the Constitution states that: [t]he judicialpower is vested in one Supreme Court and in such lower courts asmay be established by law.


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issue a TRO in the same way as the Supreme Court. Accordingly,Governor Garcia should have filed a Petition for Certiorari under Rule65 in order to be granted a TRO, instead of a petition under Rule 43.

3. Petitioners counsel respectfully explained during the oralargument that there was no distinction between the power of theCourt of Appeals and the Supreme Court insofar as their powers toissue a restraining order in cases similar to the present petition underRule 43, especially since the Constitution and the relevant statutesthat created the different courts DO NOT make such a distinction.

4. As a matter of fact, petitioner invites this Honorable Courts

attention to the fact there is jurisprudence to show that the HonorableCourt of Appeals can issue a TRO to prevent the execution of adecision. In the administrative case decided by the Supreme Court enbanc in Ramon C. Gonzales v. Court of Appeals,2 the proceedingsbefore the Court of Appeals in CA G.R. S.P. No. 89358 were detailed.In this case, the Court of Appeals, pursuant to a Petition for Reviewunder Rule 42, issued a TRO against the execution of the decision inthe civil case.3 When the TRO expired, the Court of Appeals directedthe issuance of a Writ of Preliminary Injunction, which was thereafterissued on 11 July 2005.4

5. It is likewise most respectfully noted that the TRO issued inGonzales was issued by the Ninth Division of the Court of Appeals atthat time. One of the associate justices in the said Ninth Divisioncurrently sits in the present Court of Appeals 12th Division where theinstant Petition is pending Justice Vicente Veloso.5

6. In Mayor Rodrigo R. Duterte, et al. v. Honorable Office of the

Ombudsman, et al.,6

the Court of Appeals issued a TRO pursuant to

Judicial power includes the duty of the courts of justice to settle actualcontroversies involving rights which are legally demandable andenforceable, and to determine whether or not there is grave abuse ofdiscretion amounting to lack or excess of jurisdiction on the part ofany branch or instrumentality of the Government.2 Ramon C. Gonzales v. Court of Appeals Associate Justice AmelitaG. Tolentino, A.M. No. CA-10-49-J, 28 January 2010.3

Id.4Id.5 The Ninth Division of the Court of Appeals was composed of

Associate Justices Roberto A. Barrios, Vicente S.E. Veloso andAmelita Tolentino as ponente.6 Mayor Rodrigo R. Duterte, et al. v. Honorable Office of theOmbudsman, et al., C.A. S. P. No. 113919, 28 January 2011.


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a Petition for Review under Rule 43. In the said case, a TRO wasissued against the Office of the Ombudsman, restraining the formerfrom enforcing its Decision dated 21 April 2010 and Order dated 6May 2010 in OMB M-A-09-061-B and OMB C-A-09-0269-F,respectively, finding petitioners Mayor Rodrigo R. Duterte, et al. guiltyof simple neglect of duty and imposing upon them the penalty ofsuspension for six (6) months; and correcting the dispositive portionof the Decision dated April 21, 2010 to read that petitioners are guiltyof simple misconduct.

7. In Enrico R. Echiverri, et al. v. Office of the Ombudsman, et al.,7the Court of Appeals issued a TRO to enjoin the implementation ofthe Ombudsmans Order placing Echiverri, Mayor of Caloocan City,et al. under preventive suspension. A writ of preliminary injunctionwas later issued through a Resolution promulgated on 21 July 2011.It was only after a finding of strong evidence of guilt to place thepetitioners under preventive suspension, in consonance with theorder of the Ombudsman, that the TRO was lifted.

8. From the foregoing, it is evident that the Court of Appeals canissue a TRO as an ancillary relief in petitions for review filed underRule 42 and 43, as well as in a petition for certiorari under Rule 65,without distinction.

9. The power of the Court of Appeals to issue a TRO is similar tothe power of the Supreme Court to do the same. No such limitationexists on the power of the Court of Appeals to issue a TRO, as theyare both empowered to grant provisional remedies in the respectivecases pending before them.

10. During the oral arguments, the parties were repeatedly asked torefer to Rule 58 of the Rules of Court. Precisely, Rule 58 of the Rulesof Court does not mention of any distinction between the power of theSupreme Court and the power of the Court of Appeals to issue aTRO, save for the distinction delineated in Section 5, Rule 58 on theeffectivity of the TRO issued by the Court of Appeals and SupremeCourt.8

7 Enrico R. Echiverri, et al. v. Office of the Ombudsman, et al., C.A.-G.R. S.P. No. 120336, 2 January 2012.8 The last paragraph of Section 5, Rule 58 states: However, if issuedby the Court of Appeals or a member thereof, the temporaryrestraining order shall be effective for sixty (60) days from service onthe party or person sought to be enjoined. A restraining order issued


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11. Even assuming that there was such a distinction as insistedduring the oral arguments (which the petitioner respectfully submitsthere is none), petitioner respectfully submits that she was able toestablish irreparable injury and that such irreparable injury outweighsthe rights of the respondents sought to be restrained.

12. In fact, petitioner respectfully invited the Honorable Courtsattention to the fact that since it was the Honorable Court which setthe hearing on petitioners application for a TRO, petitioner submittedthe judicial affidavits of three of her witnesses who were all presentfor cross-examination, to prove the grave and irreparable damage thepetitioner will suffer if the TRO were not issued.

13. Following this, we respectfully submit that Governor Garcia hasfully established the urgency and the grave and irreparable injury,which entitles her to the issuance of a TRO by the Honorable Court.

Among others, the petitioner reiterated that the invalid suspensionorder unlawfully and unjustly shortens the tenure of the petitioner asGovernor of the Province of Cebu, which time will be forever lost andcan no longer be recovered as she has a fixed term of office whichends on 30 June 2013, unduly deprives her of her right and mandateto serve as Governor of the Province of Cebu, having been dulyelected as such, and causes great damage to her reputation. Hence,a TRO may be issued.

14. It appears from the oral arguments that the Honorable Court ofAppeals was of the preliminary impression that the deprivation oftenure is not irreparable because, if the suspension is proven invalid,Governor Garcia may be fully compensated with full backwagesduring the period of her suspension.

15. Undersigned counsel respectfully disagreed with the HonorableCourts position. Payment of full backwages as compensation forunjustified dismissal from employment is acceptable only in laborcases. To extend such an analogy to administrative cases involvingpublic officers who were validly elected by the people in a democraticelection is entirely misplaced. Public office is not simple salariedemployment. Consequently, deprivation of public office is not identicalto unjustified dismissal from employment. Perforce, there is nocompensation for the invalid deprivation or shortening of the term of aduly elected public official.

by the Supreme Court or a member thereof shall be effective untilfurther orders.


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15. In this case, the opportunity to serve the Province of Cebucannot be quantified in monetary terms. Once this is lost, no amountof monetary compensation can restore to Governor Garcia theopportunity to exercise the mandate given to her by the people of theProvince of Cebu. The moment in time when Governor Garcia enjoysthe public trust and the mandate of the people, while placed in aposition to serve the people can never be brought back; it can neitherbe quantified nor compensated.

16. The damage to Governor Garcias reputation is irreparable. Bya single order not even rooted in law or evidence but carries with itthe entire force of a government that does not take kindly toperceived opposition, the integrity and good name that GovernorGarcia has built through years of hard work and tireless dedication tothe people of Cebu, has been tarnished. Undoubtedly, this will leavean indelible stain on her record as Governor of Cebu. Moreover,Governor Garcia is running for a seat at the House ofRepresentatives in one of the Congressional districts of Cebu City.The stigma that will be created by her unlawful and invalidsuspension can adversely affect her candidacy. This was preciselywhy the petitioner showed the political motives behind this invalid andunjust suspension order issued by the respondents.

17. Governor Garcia has worked hard, honestly, and faithfully as apublic servant through her long years in public service. Her reputationwas slowly built through the days, nights, weeks, months, years ofselfless service that have known no rest, which simply cannot bepegged to a price. Once irreparably damaged, backwages or anyamount of damages cannot make her whole. Once illegally unseated,compensation or absolution cannot restore her lost term and cannotundo the erosion of the peoples will.

18. The overwhelming support and love for Governor Garcia by thepeople of the Province of Cebu, which was demonstrated by theattendance of Cebuanos totaling over 25,000 from the different townsand cities of the Province at prayer rallies held infront of the CebuProvincial Capitol on 30 December 2012 and 9 January 2013, alsoindicates the potential danger of the Honorable Court of Appealsrefusal to issue a TRO.

19. Had the Honorable Court of Appeals allowed the petitioner topresent her witnesses, they could have testified on the imminentdanger that has been posed by armed police and members of theSpecial Weapons and Tactics (SWAT) Team upon Governor Garciaand her family, with their constant presence surrounding the Capitoland the Governors Office, and public statements threatening physical


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removal of the Governor by force. Witnesses could have testified onthe intimidation posed by police on the innocent civilians who havebeen marching to the Provincial Capitol to show their support toGovernor Garcia, to ensure that their votes are not nullified by theinvalid suspension order of the respondents.

20. It is respectfully submitted that a TRO by the Honorable Courtof Appeals may ease the tension and most likely prevent the risk ofbloodshed in the Province of Cebu in the event that the SWAT and/orarmed police illegally force its way through the Office of the Governorto enforce an otherwise invalid suspension order while the HonorableCourt of Appeals studies the merits of the petition.

21. The mere risk of loss of even just one life, petitioner respectfullysubmits, can never be compensated by the return of GovernorGarcias backwages. Petitioner respectfully submits that the issuanceof a TRO by this Honorable Court will surely prevent the risk ofviolence and bloodshed.

22. Against this canvass of irreparable damage to Governor Garcia,her family, and the Filipinos in the Province of Cebu, on one hand,

and the Office of the Presidents power TO DISCIPLINE local officials(as distinguished from the power to enforce an invalid and extremelyharsh penalty of six months suspension), it is respectfully submittedthat the Honorable Court of Appeals has only one option which isconsistent with the justice and fairness it has sworn to uphold,regardless of the clearly political background of this case - issue aTRO during the pendency of the case.

Makati City for Manila, 14 January 2013.

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