Is there such a thing as a conditional TRO? Yes. Read Carpio's dissent.

sc.judiciary.gov.ph/jurisprudence/resolutions/2011/december2011/199034_carpio.html

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DISSENTING OPINION

CARPIO, J.:

I join Justice Maria Lourdes P. A. Sereno in her Dissenting Opinion. In addition, I wish to explain further certain points about the Court’s Resolution of 15 November 2011, which was not circulated to the members of the En Banc prior to its promulgation.

The Resolution of 15 November 2011 expressly stated: “(c) ISSUE a TEMPORARY RESTRAINING ORDER xxx subject to the following conditions:

i. The petitioners shall post a cash bond of Two Million Pesos (P2,000,000.00) payable to this Court within five (5) days from notice thereof. Failure to post the bond within the aforesaid period will result in the automatic lifting of the temporary restraining order;
ii. The petitioners shall appoint a legal representative common to both of them who shall receive subpoena, orders and other legal processes on their behalf during their absence. The petitioners shall submit the name of the legal representative, also within five (5) days from notice hereof; and


iii. If there is a Philippine embassy or consulate in the place where they will be traveling, the petitioners shall inform said embassy or consulate by personal appearance or by phone of their whereabouts at all times; and

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The nature of each of these conditions should determine whether the specific condition is a condition precedent or condition subsequent to the issuance of the TRO.

The first condition required petitioners to post a P2 million bond. The posting of a bond, if required, is a condition precedent to the issuance of a TRO. The reason is obvious. The bond is a ready guarantee that any damage to the other party resulting from the issuance of the TRO will be satisfied, to a certain extent, from the bond. If the TRO is issued without the bond, then such ready guarantee in favor of the other party does not exist. Thus, by its very nature, the first condition is a condition precedent for the issuance of the TRO.

Inexplicably, the 15 November 2011 Resolution states, “Failure to post the bond within the aforesaid period (5 days from notice) will result in the automatic lifting of the temporary restraining order.” This condition was never discussed in the En Banc. This condition is not only contrary to the nature of a bond in relation to a TRO, it is also self-defeating considering that in the present case the TRO allows petitioners to immediately leave the country even without posting the bond. If petitioners leave the country within five days without posting the bond, the automatic lifting of the TRO will be useless since petitioners are already abroad and beyond the coercive power of the Court. In effect, compliance with the first condition is left to the discretion of petitioners even as they take full benefit of the TRO. This is probably the first time that the posting of a bond as a condition for travel abroad was made a condition subsequent to the travel.

The second condition required petitioners to each submit a special power of attorney designating their common representative to receive summons and other legal processes on their behalf while they are abroad. The purpose of this second condition is to bind petitioners to such summons and other legal processes that may be served on them during their absence from the country. Service on petitioners’ designated representative will be deemed service on them as fully and effectively as if they were served personally. If the TRO is issued without compliance with this second condition, and petitioners immediately leave the country, then summons or other legal process can no longer be served on petitioners as intended and required by the Court. Thus, by its very nature the second condition is also a condition precedent to the issuance of the TRO.
The 15 November 2011 Resolution provides, “Petitioners shall submit the name of the legal representative, also within five (5) days from notice hereof.” This, of course, does not mean that petitioners can leave the country before the expiration of the five-day period even without submitting their respective special power of attorney. Otherwise, if petitioners do not submit the special power of attorney after leaving the country, then the second condition becomes useless. Again, in effect, compliance with the second condition is left to the discretion of petitioners even as they take full benefit of the TRO. This is not what the Court meant when it ruled to “ISSUE a TEMPORARY RESTRAINING ORDER xxx subject to the following conditions.”


The third condition required petitioners to inform the Philippine embassy or consulate, if there is one, of their presence in the foreign country they are visiting. By its very nature, this condition is obviously a condition subsequent to the issuance of the TRO. Among the three conditions imposed by the Court for the issuance of the TRO, the third condition is the only condition to be complied with subsequent to the issuance of the TRO.

The three conditions for the issuance of the TRO cannot be construed as resolutory conditions. A resolutory condition makes the obligation demandable at once, but the happening of the condition extinguishes the obligation.1 Stated differently, a resolutory condition gives rise to the immediate exercise of a right, but the happening of the condition terminates such right. If the posting of the bond or the submission of the special power of attorney is a resolutory condition, then the right to avail of the TRO is immediately exercisable, but when the bond is posted or the special power of attorney is submitted, then the right to the TRO is terminated. This does not make any sense at all. The only reasonable interpretation is to construe the first two conditions as conditions precedent to the issuance of the TRO.

In any event, whether the first two conditions are conditions precedent or conditions subsequent to the issuance of the TRO became academic when petitioners posted the P2 million bond and submitted their respective special power of attorney at 6:00 o’clock in the evening of 15 November 2011, the same day the 15 November 2011 Resolution was promulgated. The Clerk of Court had before her all the documents necessary to determine whether there was compliance by petitioners with the first two conditions. The official receipt issued by the Court’s cashier for the payment of the P2 million evidenced compliance with the first condition. However, a cursory reading of petitioners’ special power of attorney would have readily revealed that petitioners failed to comply with the second condition.

Unfortunately, petitioners’ non-compliance with the second condition became irrelevant because as it turned out, the TRO was actually issued and released to petitioners before 6:00 o’clock in the evening of 15 November 2011, even before petitioners’ compliance with the first two conditions. Petitioners posted the P2 million bond and submitted their respective special power of attorney at 6:00 o’clock in the evening of 15 November 2011.
Accordingly, I vote to declare that the Temporary Restraining Order became effective only upon compliance with the first two conditions expressly stated in the Resolution of 15 November 2011 for the issuance of the TRO.



ANTONIO T. CARPIO
Associate Justice

1 Articles 1179 and 1181, Civil Code of the Philippines; See Aviles v. Arcega, 44 Phil. 924 (1922).
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