REPUBLIC OF THE PHILIPPINES COURT 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 SECRETARY PAQUITO M. OCHOA, JR., THE OFFICE OF THE PRESIDENT, HON. SECRETARY MAR A. ROXAS, and THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, Respondents. x ----------------------------------------------------- x MOTION TO INHIBIT Petitioner GWENDOLYN F. GARCIA, Governor of the Province of Cebu (Governor Garcia), by counsel, respectfully states: I. Justice Veloso demonstrated undue bias, prejudice and partiality when he made sweeping statements during the hearing on the application for Temporary Restraining Order / Status Quo Ante Order. 1. On 10 January 2013, a hearing was held in connection with Petitioners 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 12th Division of the Court of Appeals, made declarations that gave rise to his undeniable perception of bias and prejudice against Governor Garcia:

2.

On the matter of irreparable injury he said: JUSTICE VELOSO: XXX Here, as I said, clearly, irreparable injury is on the side of the government, on the side of the respondents. Because the penalty of six (6) months will be cut into three (3) months if we will issue a 60-day temporary restraining order.1 XXX (Emphasis provided.)

It is clear that even before the hearing was over, Justice Veloso had already prejudged the case. By stating that irreparable injury was on the side of the government, no other inference could be had but that Governor Garcia was not entitled to a Temporary Restraining Order (TRO). 3. Justice Veloso likened public office as ordinary employment and for this reason concluded that there is no irreparable injury: JUSTICE VELOSO: Speaking of injury, Section 68 of the Local Government Code provides that should the Suspension Order turned out to be illegal, then Governor Garcia as petitioner will be paid her full backwages and all the benefits she should have received had she not been suspended, correct? Yes. That is the injury she would suffer but not irreparable because Section 68 provides the repair for the injuries sustained.2

ATTY. SALVADOR III: JUSTICE VELOSO:

1 2

Transcript of Hearing on 10 January 2013, p. 51. Transcript of Hearing on 10 January 2013, p. 48. 2

4. Justice Veloso further demonstrated his bias against Governor Garcia by making it appear as though Governor Garcias application for TRO was not for the primordial reason of protecting the mandate granted her by the people of Cebu and the term of office granter her by law, but for the singular intent of being able to continue to physically occupy her office, thus: ATTY. SALVADOR III: Because, Your Honor, the nth time [sic] that the Governor to be moved and I think, Your Honor, we have to show the damage and irreparable injury to the family by not only Will our directing the respondents not to disturb the Governor in her occupancy of that physical office satisfied [sic] your requirement?3 (Emphasis and underlining ours.)

JUSTICE VELOSO:

5. It would also appear that even before the hearing and reception of evidence in this case, Justice Veloso had already formed an opinion in his mind that the actions taken by Governor Garcia to protect the mandate and the public office to which she was validly elected was just noise, thus: JUSTICE VELOSO: But raised against that is the power of the Office of the President to impose a six (6)-month suspension if she commits any of the charges against her in the case below. Okay. It was discussed in the media. You really have to stray to have this discussed in media. Governor Garcia was elected to enjoy the right, No. 1, to function as Governor for the Province of

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

Cebu until her term expires June 30, 2013, correct? ATTY. SALVADOR III: JUSTICE VELOSO: Opo. The second is, of course, to occupy the physical office of the Office of the Governor. At this point, the function of it, it is Vice Governor Magpale who is performing the functions of the Office of the Governor because we have not issued any temporary restraining order or we are still to issue a temporary restraining order, yet she continuous [sic] occupying the Office of the Governor. Well, I heard, Governor Garcia explaining that what is involved here in only a thirty (30) days suspension not a penalty of dismissal. And that, as the period of suspension expires, she should have her office to go back to. But why quibble over this? Counsel, why can she not just explain that unless a TRO is issued, not make noise and that would allow this Court to resolve this case expeditiously and without conflict. Okay.4 (Emphasis and underlining ours.)

6. Justice Veloso laid the basis for not issuing a TRO by lecturing 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. 4

JUSTICE VELOSO:

XXX note that this Court is not a creation of the Constitution. This Court is a creation of statute, the judicial organization act. Its powers proceed from the Rules of Court issued by the Supreme Court under Article 8 of the Constitution, particularly Section 5, Paragraph 5 of the Constitution. In short, the powers of this Court can be measured only by what appears in the Rules of Court. And so here I am telling you that while in Certiorari, Rule 65, we can enjoin respondents, we can issue a temporary restraining order to preserve the rights of both parties. We cannot do so under Rule 43 because when you talk about Rule 43 as what you invoked, it can only be issued on irreparable injury ground and yet you have the problem in Section 6, Rule 58. XXX5

7. Justice Veloso erroneously distinguished the power of the Court of Appeals and the Supreme Court to issue a TRO. No such distinction exists, as both appellate courts are empowered to grant provisional remedies on appeals or special civil actions. 8. The sweeping statements made by Justice Veloso during the hearing raised serious concerns on his impartiality. 9. In Re: Release by Judge Manuel Turo,6 the Supreme Court explained the importance not only of actual impartiality but even the appearance of impartiality in the disposition of justice as follows:

5 6

Transcript of Hearing on 10 January 2013, pp. 52-53. A.M. No. 00-7-323-RTJ, October 17, 2001. 5

Time and again, this Court has admonished judges not only to be impartial but also to appear to be so, for appearance is an essential manifestation of reality. Judges are enjoined to avoid not just impropriety in their conduct but even the mere appearance of impropriety. The appearance of bias or prejudice can be as damaging to public competence and the administration of justice as actual bias or prejudice. II. Inordinate delay in the resolution of the application for Temporary Restraining Order / Status Quo Ante Order. 10. Compounding the above is the inordinate delay in the conduct of the proceedings of the instant case. 11. On 20 December 2012, Governor Garcia filed the instant Petition for Review with Application for Issuance of a Temporary Restraining Order / Status Quo Ante Order and Writ of Preliminary Injunction (Petition for Review). On 10 January 2013 or twenty one (21) days after its filing, a hearing on the Application for Temporary Restraining Order/Status Quo Ante Order was held. However, despite being able to establish the urgency and grave and irreparable injury, which entitled her to the issuance of a TRO, no action was taken by the 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 Very Urgent Motion Reiterating the Issuance of a Temporary Restraining Order and/or Status Quo Ante Order (the Very Urgent Motion). 13. Governor Garcias Very Urgent Motion remains unresolved. On 22 January 2013, Justice Veloso issued a Resolution, simply repeating and restating exactly what he had already declared in open court twelve (12) days earlier, or on 10 January 2013. 14. To make matters worse, a copy of the said Resolution was sent to the parties as well as to Torregosa Galeon Gravador & Tomaneng7 requiring them to inform the court within five (5) days from receipt thereof. Surprisingly, this was the same law firm declared by Justice
7

Counsel of Grizelda Zaballero-Sanchez. 6

Veloso, in open court, to have no right to participate in the proceedings since its client was not impleaded as a party Respondent. Said law firm holds office in Cebu City, hence, it is expected that it will file its Compliance by registered mail causing further delay to the proceedings. 15. It puzzles Governor Garcia why the Resolution dated 22 January 2013, which merely echoed his statement in open court on 10 January 2013 and is not even a final judgment or an order had to require a compliance of receipt within a period of five (5) days. This, obviously, will only create unnecessary delay as the Court bound itself to wait for the compliance of all eight (8) recipients, including one who is not even a party to the case. 16. Due to the inordinate delay in the resolution of Governor Garcias application for TRO / Status Quo Ante Order, Vice Governor Magpale continues to illegally perform the functions of Governor Garcia, and has now prevented Governor Garcia from holding the Office of the Governor by ordering the forcible padlocking of the same, and declaring that Vice Governor Magpale would be holding office thereat. 17. Being the Chairman of the Division, Justice Veloso controls the proceedings of the Division and thus, is responsible for seeing to it that proceedings are conducted with dispatch. He is also tasked to rule on motions such as the Very Urgent Motion filed by Governor Garcia. 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 proceedings during the hearing. He/She shall rule on all motions and objections interposed therein in consultation with the members. He/She may, however, yield the conduct of the proceedings to any member who shall exercise the powers of the Chairperson. (Emphasis and underlining ours.) III. The delay in the resolution of Governor Garcias application for Temporary Restraining Order / Status Quo Ante Order is tainted with political bias.

18. In view of the above, it is extremely disturbing how another application for TRO, filed with the Court, and also assigned to Justice Veloso, 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 January 2013. After the oral arguments called by the Court last 15 January 2013, Justice Veloso announced right after the oral arguments that the application for TRO was granted. 18.1 On one hand, Aga Muhlach is a first time candidate for congressman in the Province of Camarines Sur who sought relief from the Court in order that his name can be restored in the voters list of Camarines Sur, and consequently, be allowed to run for congressman. On the other hand, Governor Garcia is an elected and incumbent Governor of the Province of Cebu who holds the mandate of the people and whose term of office is being unlawfully deprived. If the court expeditiously acted on the application of Aga Muhlach for TRO there was every reason to swiftly act on the application for TRO of Governor Garcia, but Justice Veloso did not. Copies of the news reports are attached herein and made integral part hereof as ANNEXES A8, B9, AND C10. 19. This discrimination against Governor Garcia, a member and candidate of the United National Alliance (UNA), only shows that the statements and actions of Justice Veloso may also be politically tainted. FINAL WORD 20. From the foregoing, Justice Veloso has provided more than enough reason to persuade and alarm Governor Garcia that, with all due respect, Justice Veloso would no longer be able to resolve the case fairly and objectively. Unfortunately, Governor Garcia has lost

ANNEX A: Lopez, Virgil, Aga Muhlach gets TRO on poll delisting, Sun Star Manila, 15 January 2013, http://www.sunstar.com.ph/manila/localnews/2013/01/15/aga-muhlach-gets-tro-poll-delisting-263049 last accessed on 1 February 2013. 9 ANNEX B: Panaligan, Ray, Aga Muhlach Secures TRO from CA, Manila Bulletin, 15 January 2013, http://www.mb.com.ph/articles/389792/aga-muhlachsecures-tro-from-ca#.UQsgF6CoG_I last accessed on 1 February 2013. 10 ANNEX C: Cruz, RG, Aga stays in the game, gets TRO, ABS-CBN News, 15 January 2013, http://www.abs-cbnnews.com/entertainment/01/15/13/aga-staysgame-gets-tro last accessed on 1 February 2013. 8

her faith that the Justice Veloso would be able to decide the case on the merits, as his objectivity is now in serious doubt. 21. It is respectfully submitted that this is sufficient basis for Justice Veloso to voluntarily inhibit himself from the instant case, in accordance with the second paragraph of Section 1, Rule 137 of the Rules of Court and Section 2, Rule V of the Internal Rules of the Court of Appeals, which states, thus: A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above.11 A Justice may voluntarily inhibit himself from sitting in a case for a just or valid reason other than those referred to in Section 1 of this Rule. In that event, he shall notify in writing the Raffle Committee and the members of his Division.12 22. The importance of impartial administration of justice was explained in the case of Gutang, et al. v. Court of Appeals: Truly, the presiding judge must maintain and preserve the trust and faith of the parties-litigants. He must hold himself above reproach and suspicion. At the very first sign of lack of faith and trust in his actions, whether well-grounded or not, the Judge has no other alternative but to inhibit himself from the case. When circumstances appear that will induce doubt as to his honest actuations 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 under such circumstances is to disqualify himself. That way, he avoids being misunderstood, his reputation for probity and objectivity is preserved. What is more important, the ideal of impartial administration of justice is lived up to.13 (Emphasis provided.)

11 12

Section 1, Rule 137, the Rules of Court. Section 2, Rule V, Internal Rules of the Court of Appeals. 13 Gutang, et al. v. Court of Appeals, G.R. No. 124760, 8 July 1998. 9

23. The duty of self-examination by a magistrate was declared by the Supreme Court in the landmark decision of Pimentel vs. Salanga14: "x x x But when a suggestion is made of record that he might be induced to act in favor of one party or with bias or prejudice against a litigant arising out of circumstances reasonably capable of inciting such a state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the people's faith in the courts of justice is not impaired. A salutary norm is that he reflect on the probability that a losing party might nurture at the back of his mind the thought that the judge had unmeritoriously tilted the scales of justice against him. X x x He could in good grace inhibit himself where the case could be heard by another judge and where no appreciable prejudice would be occasioned to others involved therein. On the result of his decisions to sit or not to sit may depend to a great extent that all important confidence in the impartiality of the judiciary. If after reflection he should resolve to voluntarily desist from sitting in a case where his motives or fairness might be seriously impugned, his action is to be interpreted as giving meaning and substance to the second paragraph of Section 1, Rule 137. He serves the cause of the law who forestalls miscarriage of justice." (Emphasis provided.) 24. The judge should be above suspicion. He should exert all efforts to maintain the appearance of impartiality, and that at the very sign 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 faith of the parties litigants. He must hold himself above reproach and suspicion. At the very first sign of lack of faith and trust to his actions, whether well grounded or not, the Judge has no other alternative but inhibit himself from the case. A judge may not be legally prohibited from sitting in a litigation, but when circumstances appear that will induce doubt to his honest actuations and probity in favor of either party, or incite such state of mind, he should conduct a careful self-examination. He should exercise his discretion in a way that the peoples faith in
14 15

21 SCRA 160 (1967). 152 SCRA 172, 193. 10

the Courts of Justice is not impaired. The better course for the Judge under such circumstances is to disqualify himself. That way, he avoids being misunderstood, his reputation for probity and objectivity is preserved. What is more 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 appear impartial as well.16 This should serve as an added assurance to the parties that his decision will be just.17 Verily, litigants, like Governor Garcia, are entitled to no less than that.18 26. It must be emphasized that the filing of the instant Motion must not be viewed or considered as an indictment of Justice Velosos integrity, as the abovementioned circumstances have reasonably cast a doubt on the neutrality and impartiality required of a magistrate. Therefore, any judgment unfavorable to Governor Garcia would always be 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 in this case remain above suspicion. 28. This Motion is not intended for delay and is being made without prejudice to Governor Garcias rights under the law.

PRAYER WHEREFORE, it is most respectfully prayed that Justice Veloso VOLUNTARILY INHIBIT himself from further hearing and/or resolving the 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, 26 September 1996, citing Javier vs. Commission on Elections (144 SCRA 194 [1986]). 17 Id. 18 Id. 11