gov.garcia.ca.motiontoinhibit.1feb13

7/29/2019 Gov.Garcia.CA.MotiontoInhibit.1feb13

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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)

HON. GREGORIO G. SANCHEZ,JR., VICE GOVERNOR OF THE

PROVINCE 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

MOTION TO INHIBIT

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

I. Justice Veloso demonstratedundue bias, prejudice andpartiality when he madesweeping statements during thehearing on the application forTemporary Restraining Order /Status Quo Ante Order.

1. On 10 January 2013, a hearing was held in connection withPetitioners Application for Temporary Restraining Order / Status Quo

Ante Order filed on 20 December 2012. During the said hearing,Justice Vicente S.E. Veloso (Justice Veloso), Chairman of the 12 thDivision of the Court of Appeals, made declarations that gave rise tohis undeniable perception of bias and prejudice against GovernorGarcia:


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2. On the matter of irreparable injury he said:

JUSTICE VELOSO: XXX Here, as I said, clearly,

irreparable injury is on theside of the government, onthe side of therespondents. Because thepenalty of six (6) months willbe cut into three (3) months ifwe will issue a 60-daytemporary restraining order.1XXX (Emphasis provided.)

It is clear that even before the hearing was over, Justice Velosohad already prejudged the case. By stating that irreparable injury wason the side of the government, no other inference could be had butthat Governor Garcia was not entitled to a Temporary RestrainingOrder (TRO).

3. Justice Veloso likened public office as ordinary employmentand for this reason concluded that there is no irreparable injury:

JUSTICE VELOSO: Speaking of injury, Section68 of the Local GovernmentCode provides that shouldthe Suspension Orderturned out to be illegal, thenGovernor Garcia aspetitioner will be paid her fullbackwages and all the

benefits she should havereceived had she not beensuspended, correct?

ATTY. SALVADOR III: Yes.

JUSTICE VELOSO: That is the injury she wouldsuffer but not irreparablebecause Section 68provides the repair for the

injuries sustained.2

1 Transcript of Hearing on 10 January 2013, p. 51.2 Transcript of Hearing on 10 January 2013, p. 48.


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4. Justice Veloso further demonstrated his bias against GovernorGarcia by making it appear as though Governor Garcias applicationfor TRO was not for the primordial reason of protecting the mandategranted her by the people of Cebu and the term of office granter herby law, but for the singular intent of being able to continue tophysically occupy her office, thus:

ATTY. SALVADOR III: Because, Your Honor, thenth time [sic] that theGovernor to be moved and Ithink, Your Honor, we haveto show the damage and

irreparable injury to thefamily by not only

JUSTICE VELOSO: Will our directing therespondents not to disturbthe Governor in heroccupancy of thatphysical office satisfied[sic] your requirement?

3(Emphasis and underlining

ours.)

5. It would also appear that even before the hearing and receptionof evidence in this case, Justice Veloso had already formed anopinion in his mind that the actions taken by Governor Garcia toprotect the mandate and the public office to which she was validlyelected was just noise, thus:

JUSTICE VELOSO: But raised against that is thepower of the Office of thePresident to impose a six(6)-month suspension if shecommits any of the chargesagainst her in the casebelow. Okay. It wasdiscussed in the media.

You really have to stray to

have this discussed inmedia. Governor Garciawas elected to enjoy theright, No. 1, to function asGovernor for the Province of

3 Transcript of Hearing on 10 January 2013, pp. 96-97.


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Cebu until her term expiresJune 30, 2013, correct?

ATTY. SALVADOR III: Opo.

JUSTICE VELOSO: The second is, of course, tooccupy the physical office ofthe Office of the Governor.

At this point, the function ofit, it is Vice GovernorMagpale who is performingthe functions of the Office ofthe Governor because wehave not issued anytemporary restraining orderor we are still to issue atemporary restraining order,yet she continuous [sic]occupying the Office of theGovernor. Well, I heard,Governor Garcia explainingthat what is involved here inonly a thirty (30) days

suspension not a penalty ofdismissal. And that, as theperiod of suspensionexpires, she should have heroffice to go back to. Butwhy quibble over this?Counsel, why can she not

just explain that unless aTRO is issued, not makenoise and that would allowthis Court to resolve thiscase expeditiously andwithout conflict. Okay.4(Emphasis and underliningours.)

6. Justice Veloso laid the basis for not issuing a TRO bylecturing at length on the powers and nature of the Court of Appeals

and the appropriate remedy that Governor Garcia should have taken,which was a Petition for Certiorari under Rule 65:

On the matter of not issuing the TRO he said:

4 Transcript of Hearing on 10 January 2013, pp. 96-97.


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JUSTICE VELOSO: XXX note that this Court isnot a creation of theConstitution. This Court is a

creation of statute, thejudicial organization act. Itspowers proceed from theRules of Court issued by theSupreme Court under

Article 8 of the Constitution,particularly Section 5,Paragraph 5 of theConstitution. In short, thepowers of this Court can be

measured only by whatappears in the Rules ofCourt. And so here I amtelling you that while inCertiorari, Rule 65, we canenjoin respondents, we canissue a temporaryrestraining order to preservethe rights of both parties.

We cannot do so underRule 43 because when youtalk about Rule 43 as whatyou invoked, it can only beissued on irreparable injuryground and yet you havethe problem in Section 6,Rule 58. XXX5

7. Justice Veloso erroneously distinguished the power of the Courtof Appeals and the Supreme Court to issue a TRO. No suchdistinction exists, as both appellate courts are empowered to grantprovisional remedies on appeals or special civil actions.

8. The sweeping statements made by Justice Veloso during thehearing raised serious concerns on his impartiality.

9. In Re: Release by Judge Manuel Turo,6 the Supreme Courtexplained the importance not only of actual impartiality but even theappearance of impartiality in the disposition of justice as follows:

5 Transcript of Hearing on 10 January 2013, pp. 52-53.6 A.M. No. 00-7-323-RTJ, October 17, 2001.


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Time and again, this Court has admonishedjudges not only to be impartial but also toappear to be so, for appearance is anessential manifestation of reality. Judges areenjoined to avoid not just impropriety in theirconduct but even the mere appearance ofimpropriety. The appearance of bias orprejudice can be as damaging to publiccompetence and the administration of justiceas actual bias or prejudice.

II. Inordinate delay in theresolution of the application forTemporary Restraining Order /Status Quo Ante Order.

10. Compounding the above is the inordinate delay in the conductof the proceedings of the instant case.

11. On 20 December 2012, Governor Garcia filed the instantPetition for Review with Application for Issuance of a Temporary

Restraining Order / Status Quo Ante Order and Writ of PreliminaryInjunction (Petition for Review). On 10 January 2013 or twenty one(21) days after its filing, a hearing on the Application for TemporaryRestraining Order/Status Quo Ante Order was held. However, despitebeing able to establish the urgency and grave and irreparable injury,which entitled her to the issuance of a TRO, no action was taken bythe Court of Appeals.

12. Hence, on 18 January 2013, or after twenty-nine (29) days from

the filing of the Petition for Review, Governor Garcia filed a VeryUrgent Motion Reiterating the Issuance of a Temporary RestrainingOrder and/or Status Quo Ante Order (the Very Urgent Motion).

13. Governor Garcias Very Urgent Motion remains unresolved. On22 January 2013, Justice Veloso issued a Resolution, simplyrepeating and restating exactly what he had already declared in opencourt twelve (12) days earlier, or on 10 January 2013.

14. To make matters worse, a copy of the said Resolution was sentto the parties as well as to Torregosa Galeon Gravador & Tomaneng7requiring them to inform the court within five (5) days from receiptthereof. Surprisingly, this was the same law firm declared by Justice

7 Counsel of Grizelda Zaballero-Sanchez.


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Veloso, in open court, to have no right to participate in theproceedings since its client was not impleaded as a partyRespondent. Said law firm holds office in Cebu City, hence, it isexpected that it will file its Compliance by registered mail causingfurther delay to the proceedings.

15. It puzzles Governor Garcia why the Resolution dated 22January 2013, which merely echoed his statement in open court on10 January 2013 and is not even a final judgment or an order had torequire a compliance of receipt within a period of five (5) days. This,obviously, will only create unnecessary delay as the Court bounditself to wait for the compliance of all eight (8) recipients, includingone who is not even a party to the case.

16. Due to the inordinate delay in the resolution of GovernorGarcias application for TRO / Status Quo Ante Order, Vice GovernorMagpale continues to illegally perform the functions of GovernorGarcia, and has now prevented Governor Garcia from holding theOffice of the Governor by ordering the forcible padlocking of thesame, and declaring that Vice Governor Magpale would be holdingoffice thereat.

17. Being the Chairman of the Division, Justice Veloso controls theproceedings of the Division and thus, is responsible for seeing to itthat proceedings are conducted with dispatch. He is also tasked torule on motions such as the Very Urgent Motion filed by GovernorGarcia. Rule II, Section 5 of the 2009 Internal Rules of the Court of

Appeals states, thus:

Sec. 5. Conduct of Hearing in Divisions.

The Chairperson controls the proceedingsduring the hearing. He/She shall rule on allmotions and objections interposed therein inconsultation with the members. He/She may,however, yield the conduct of the proceedingsto any member who shall exercise the powersof the Chairperson. (Emphasis andunderlining ours.)

III. The delay in the resolution ofGovernor Garcias applicationfor Temporary RestrainingOrder / Status Quo Ante Orderis tainted with political bias.


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18. In view of the above, it is extremely disturbing how anotherapplication for TRO, filed with the Court, and also assigned to JusticeVeloso, was not subjected to the same kind of scrutiny and delay.News articles have reported on 15 January 2013, that Aga Muhlach,a known Liberal Party member, applied for TRO early in January2013. After the oral arguments called by the Court last 15 January2013, Justice Veloso announced right after the oral arguments thatthe application for TRO was granted.

18.1 On one hand, Aga Muhlach is a first time candidate forcongressman in the Province of Camarines Sur who sought relieffrom the Court in order that his name can be restored in the voterslist of Camarines Sur, and consequently, be allowed to run forcongressman. On the other hand, Governor Garcia is an electedand incumbent Governor of the Province of Cebu who holds themandate of the people and whose term of office is being unlawfullydeprived. If the court expeditiously acted on the application of AgaMuhlach for TRO there was every reason to swiftly act on theapplication for TRO of Governor Garcia, but Justice Veloso didnot.

Copies of the news reports are attached herein and made integralpart hereof as ANNEXES A8, B9, AND C10.

19. This discrimination against Governor Garcia, a member andcandidate of the United National Alliance (UNA), only shows that thestatements and actions of Justice Veloso may also be politicallytainted.

FINAL WORD

20. From the foregoing, Justice Veloso has provided more thanenough reason to persuade and alarm Governor Garcia that, with alldue respect, Justice Veloso would no longer be able to resolve thecase fairly and objectively. Unfortunately, Governor Garcia has lost

8ANNEX A: Lopez, Virgil,Aga Muhlach gets TRO on poll delisting, Sun StarManila, 15 January 2013, http://www.sunstar.com.ph/manila/local-

news/2013/01/15/aga-muhlach-gets-tro-poll-delisting-263049 last accessed on 1February 2013.9ANNEX B: Panaligan, Ray, Aga Muhlach Secures TRO from CA, ManilaBulletin, 15 January 2013, http://www.mb.com.ph/articles/389792/aga-muhlach-secures-tro-from-ca#.UQsgF6CoG_I last accessed on 1 February 2013.10ANNEX C: Cruz, RG,Aga stays in the game, gets TRO,ABS-CBN News, 15January 2013, http://www.abs-cbnnews.com/entertainment/01/15/13/aga-stays-game-gets-tro last accessed on 1 February 2013.


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her faith that the Justice Veloso would be able to decide the case onthe merits, as his objectivity is now in serious doubt.

21. It is respectfully submitted that this is sufficient basis for JusticeVeloso to voluntarily inhibit himself from the instant case, inaccordance with the second paragraph of Section 1, Rule 137 of theRules of Court and Section 2, Rule V of the Internal Rules of theCourt of Appeals, which states, thus:

A judge may, in the exercise of his sounddiscretion, disqualify himself from sitting in acase, for just or valid reasons other than those

mentioned above.11

A Justice may voluntarily inhibit himself fromsitting in a case for a just or valid reason otherthan those referred to in Section 1 of thisRule. In that event, he shall notify in writingthe Raffle Committee and the members of hisDivision.12

22. The importance of impartial administration of justice wasexplained in the case ofGutang, et al. v. Court of Appeals:

Truly, the presiding judge must maintain and preserve thetrust and faith of the parties-litigants. He must holdhimself above reproach and suspicion. At the very firstsign of lack of faith and trust in his actions, whetherwell-grounded or not, the Judge has no otheralternative but to inhibit himself from the case. Whencircumstances appear that will induce doubt as to hishonest actuations and probity in favor of either party, orincite such state of mind, he should conduct a careful self-examination. He should exercise his discretion in a waythat the peoples faith in the Courts of Justice is notimpaired. The better course for the judge under suchcircumstances is to disqualify himself. That way, heavoids being misunderstood, his reputation for probity andobjectivity is preserved. What is more important, the

ideal of impartial administration of justice is lived upto.13(Emphasis provided.)

11 Section 1, Rule 137, the Rules of Court.12 Section 2, Rule V, Internal Rules of the Court of Appeals.13Gutang, et al. v. Court of Appeals, G.R. No. 124760, 8 July 1998.


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23. The duty of self-examination by a magistrate was declared bythe Supreme Court in the landmark decision of Pimentel vs.Salanga14:

"x x x But when a suggestion is made of record that hemight be induced to act in favor of one party or with bias orprejudice against a litigant arising out of circumstancesreasonably capable of inciting such a state of mind, heshould conduct a careful self-examination. He shouldexercise his discretion in a way that the people's faith in thecourts of justice is not impaired. A salutary norm is that hereflect on the probability that a losing party might nurture atthe back of his mind the thought that the judge hadunmeritoriously tilted the scales of justice against him. X x xHe could in good grace inhibit himself where the casecould be heard by another judge and where no appreciableprejudice would be occasioned to others involved therein.On the result of his decisions to sit or not to sit may dependto a great extent that all important confidence in theimpartiality of the judiciary. If after reflection he shouldresolve to voluntarily desist from sitting in a case where hismotives or fairness might be seriously impugned, his action

is to be interpreted as giving meaning and substance to thesecond paragraph of Section 1, Rule 137. He serves thecause of the law who forestalls miscarriage of justice."(Emphasis provided.)

24. The judge should be above suspicion. He should exert allefforts to maintain the appearance of impartiality, and that at the verysign of lack of faith and trust in his actions, he should inhibit himself.Borromeo-Herrera vs. Borromeo,15 is instructive on this point:

The judge must maintain and preserve the trust and faithof the parties litigants. He must hold himself abovereproach and suspicion. At the very first sign of lack offaith and trust to his actions, whether well grounded ornot, the Judge has no other alternative but inhibit himselffrom the case. A judge may not be legally prohibited fromsitting in a litigation, but when circumstances appear thatwill induce doubt to his honest actuations and probity infavor of either party, or incite such state of mind, heshould conduct a careful self-examination. He shouldexercise his discretion in a way that the peoples faith in

14 21 SCRA 160 (1967).15 152 SCRA 172, 193.


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the Courts of Justice is not impaired. The better coursefor the Judge under such circumstances is to disqualifyhimself. That way, he avoids being misunderstood, hisreputation for probity and objectivity is preserved. What ismore important, the ideal of impartial administration of

justice is lived up to. x x x (Citing Bautista v. Rebueno,81 SCRA 535).

25. Justice Veloso is expected not only to be impartial, but to appearimpartial as well.16 This should serve as an added assurance to theparties that his decision will be just.17 Verily, litigants, like GovernorGarcia, are entitled to no less than that.18

26. It must be emphasized that the filing of the instant Motion mustnot be viewed or considered as an indictment of Justice Velososintegrity, as the abovementioned circumstances have reasonably casta doubt on the neutrality and impartiality required of a magistrate.Therefore, any judgment unfavorable to Governor Garcia would alwaysbe viewed, rightly or wrongly, as tainted with bias and partiality.

27. In the interest of justice, it behooves Justice Veloso to voluntarily

inhibit himself from the instant case to ensure that the proceedings inthis case remain above suspicion.

28. This Motion is not intended for delay and is being made withoutprejudice to Governor Garcias rights under the law.

PRAYER

WHEREFORE, it is most respectfully prayed that Justice VelosoVOLUNTARILY INHIBIT himself from further hearing and/or resolvingthe instant case.

Other reliefs just and equitable are likewise prayed for.

Makati City for Manila, 31 January 2013.

16 See People of the Philippines v. Court of Appeals, G.R. No. 118882, 26September 1996, citing Javier vs. Commission on Elections (144 SCRA 194[1986]).17Id.18Id.

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