Thursday, August 14, 2008 Sabio not authorized to rule on Meralco case: Cruz
IF THE Internal Rules of the Court of Appeals (Irca) would be followed, Associate Justice Jose Sabio Jr. has no authority to rule on the Meralco ownership row, another justice of the appellate court said.
At the continuation of the hearing of the three-man panel of the Supreme Court (SC) last Wednesday, Associate Justice Edgardo Cruz, chairman of the CA committee on rules, took the witness stand to testify that the Eighth Division was the proper division that issued the assailed decision on the Meralco case dated July 23.
The case was originally assigned to the 9th Division, which members Associate Justices Vicente Roxas (ponente), Myrna Dimaranan-Vidal and Bienvenido Reyes as chairman.
Since Reyes was on leave at that time, the raffle committee picked out another justice, who turned out to be Jose Catral-Mendoza. However, Mendoza voluntarily inhibited himself from hearing the case, thus another raffle was made and Sabio was designated as acting chairman of the Special Ninth Division.
In his testimony, Cruz claimed that Reyes sought his opinion as then member of the CA committee on rules after Sabio refused to relinquish the case with him.
He said Sabio has no right to preside over the June 23 Meralco hearing following Reyes's return as the division's regular chairman from leave of absence, being chairman merely in an "acting" capacity.
By definition, he said the word "acting" connotes doing duty for another, or holding a position of temporary rank.
Cruz cited Section 2-D of the Irca, which provides that Sabio's participation as acting chairman in the issuance of a temporary restraining order (TRO) is not part of the injunctive process, which is allowed for as long as he will not resolve the case on its merits, the same being reserved for the returning chairman, Reyes.
"Justice Sabio himself claims right to continue to pursue the Meralco case because he participated in the initial action of the court. However, none of the exceptions that would justify the transfer from Reyes's jurisdiction were met, such as the giving of due course to the petition; granting of preliminary injunction; and new trial," he said.
Sabio earlier claimed that the issuance of a TRO is part of the injunction process, but Cruz disagreed, saying a TRO is just an interlocutory order.
Cruz further countered Sabio's supposition that the motion to lift the TRO, filed by Government Service and Insurance System (GSIS), which the Special Ninth Division issued, is in effect a motion for reconsideration (MR).
He said that under Section 6 of Rule 58 of the Irca, the remedy of party restrained is either a TRO or preliminary injunction, which are motions for dissolution, but which are not an MR.
"Assuming that the motion to lift TRO can be applied as a motion for reconsideration, a party may file an MR of a decision of final resolution. TRO is not a final resolution, it is only an interlocutory order," Cruz said.
Still, Cruz added, the authority of justices who participated in the issuance of a TRO - Sabio, Vidal and Roxas - is only to rule on the TRO, not on the merits of the petition.
Cruz said that if the theory of Sabio would be followed, it would mean that had he participated in the June 23 oral arguments, even if it is improper, that would be a passport in the decision-making process, in violation of the Irca.
He further said that as acting chairman of the division, it is Sabio's duty to direct the ponente, Roxas to immediately resolve first the motion to lift TRO before the oral arguments last June 23. That motion was never resolved.
"Sabio had no right to participate in that hearing of June 23. In fact, the motion to lift TRO could not be resolved before the oral arguments. He should have called attention of the ponente to have the motion to lift TRO resolved, and not wait for June 23," he said.
Roxas is the ponente of the decision that granted the Lopez group's petition that the Securities and Exchange Commission (SEC) has no jurisdiction to hear the GSIS complaint.
Meanwhile, the clerk of court of the Eighth Division admitted before the panel that she was kept in the dark by the division justices on their supposed deliberations conducted prior to the promulgation of the Meralco case last June 23.
Upon questioning by panel member, retired Justice Romeo Callejo Sr., lawyer Teresita Custodio said the clerk of court of divisions are usually not informed of deliberations until before the promulgation of the case. This, she said, has been the practice at the CA.
Callejo noticed that there were no transcripts or stenographic records of said deliberations that were attached to the rollo of the case that was submitted to the panel.
Custodio's testimony contradicts that of Reyes, who claimed in his affidavit that there were deliberations conducted among the members of the Eighth Division prior to the July 14 final deliberations.
The lady lawyer said she was not asked to be present or any of the division's staff to record the deliberations.
"I wasn't there when they deliberated. I was never informed of any deliberation. I cannot find any transcript of the deliberations prior to the final deliberation," Custodio told the panel.
Callejo further noted that the July 14 transcript of the deliberations of Reyes and the two other members of the Eighth Division - Associate Justices Apolinario Bruselas and Roxas, the ponente of the Meralco decision - was the only transcript attached to the rollo.
Sans the transcripts, Callejo said Reyes's claim in his affidavit that they were prior deliberations made on the Meralco case might be considered "a falsification."
The panel was also notified by Presiding Justice Conrado Vasquez Jr., Vidal and Sabio that the copies of the July 14 transcript attached to the affidavit of Roxas that was provided to them has no initials as compared to the one attached to the rollo.
After verification, Callejo agreed that there seemed to be two copies of the July 14 transcript, the one attached to the rollo and the other one attached to Roxas's affidavit which bears no initial at all.
"That's another mystery," Callejo remarked. He also said that it was strange that Roxas kept the rollo of the Meralco case throughout the proceedings of the case, as confirmed by Custodio.
She also told the panel that all the pleadings, motions and manifestations were forwarded to the office of Roxas since the rollo was with him.
The only time she got hold of the rollo was when the resolution granting the issuance of the TRO in favor of the Lopez-bloc of Meralco was promulgated on May 30, she said.
Custodio said since that time, she did not see the rollo anymore until it was returned to her only after the July 23 decision with the July 14 transcript of deliberations and other pleadings attached as "loose leaf."
Panel chairperson, retired justice Carolina Grino-Aquino, also berated Custodio for keeping "messy" records of the cases being handled by the division after she noticed that the dates when the pleadings were filed and the dates on the logbook did not match.
Custodio testified that the urgent manifestation with attached memorandum and memorandum of authorities of the petitioner were filed allegedly on July 10, 2008 but as noted by Aquino the log book showed that it was filed on July 7, 2008.
When asked about the memoranda that were not stitched to the court's rollo, Custodio replied that she could not locate the same and it seemed that it was "lost in transit."
Aquino reminded Custodio that under the Irca, the stitching should have been done by the receiving section of the judicial records and within two working days the same should have been forwarded to the office of the division clerk of court.
The panel was created by the SC to investigate the allegation of bribery and irregularities attending the July 23 decision of the CA Eighth Division on the Meralco case. (ECV/Sunnex)
