G.R. No. 184645 - Barbieto vs. Court of Appeals

Case Summary (G.R. No. 184645)

Factual Background

Multiple complaint-affidavits were filed before the ODO-MOLEO by personnel of the 4th Infantry Division, PA, against Maj. Gen. Barbieto and his alleged bagman, Staff Sergeant Roseller A. Echipare, charging both with grave misconduct and violation of Republic Act No. 6713. The allegations included extortion of amounts ranging from P25,000.00 to P30,000.00 from applicants to guarantee enlistment; extortion from soldiers seeking reinstatement in exchange for Maj. Gen. Barbieto’s approval, notwithstanding the earlier disapproval by the 4th Infantry Division Reinstatement Board; and anomalies in the clearing of payroll of the AFP’s Balik Baril program fund.

The administrative case was docketed as OMB-P-A-08-0201-B, while a criminal case was docketed as OMB-P-C-08-0204-B. On 29 February 2008, the ODO-MOLEO ordered the preventive suspension of Maj. Gen. Barbieto and S/Sgt. Echipare for six months during the pendency of the administrative case, with immediate executory effect. Maj. Gen. Barbieto filed a motion for reconsideration of the preventive suspension order.

Parallel to the Ombudsman proceedings, the Army Investigator General conducted an investigation of the same charges. The investigator recommended, and Lt. Gen. Yano approved, the indictment of Maj. Gen. Barbieto for violations of Articles 55, 96, and 97 of the Articles of War, and of S/Sgt. Echipare for violations of Articles 96 and 97.

On 20 February 2008, Maj. Gen. Barbieto’s ten-day leave took effect to enable an impartial investigation. On the same date, S/Sgt. Echipare was arrested and confined at the Intelligence and Security Group Compound, Fort Bonifacio, Taguig City. On 13 March 2008, Lt. Gen. Yano issued an Order directing the arrest and confinement of Maj. Gen. Barbieto and S/Sgt. Echipare to be restricted to quarters pending investigation with the end view of General Court Martial Trial. Maj. Gen. Barbieto was arrested and confined to cluster officer housing, while S/Sgt. Echipare was transferred and detained at the Custodial Management Unit of the Headquarters and Headquarters Support Group, PA, on 18 March 2008.

On 10 April 2008, the Office of the Army Judge Advocate, after concurring in the findings of the Pre-Trial Investigation Panel, recommended the immediate trial before the General Court Martial and the endorsement for General Court Martial proceedings. Without waiting for the ODO-MOLEO’s resolution of his motion for reconsideration, Maj. Gen. Barbieto filed with the Court of Appeals a Petition for Certiorari with Prayer for TRO and/or Writ of Preliminary Injunction, docketed as CA-G.R. SP No. 102874, seeking, among others: (a) a TRO to lift the preventive suspension order and to nullify Lt. Gen. Yano’s warrant of arrest and confinement; and (b) after notice and hearing, the grant of a permanent injunction and other reliefs.

Court of Appeals Proceedings on the Injunctive Prayer

On 4 April 2008, the Court of Appeals required respondents to file comment within ten days, explaining why the TRO and/or preliminary injunction should not issue. After the parties filed the required pleadings, the Court of Appeals issued a Resolution on 6 August 2008 denying the prayer for injunctive relief. The appellate court reasoned that Maj. Gen. Barbieto failed to show extreme urgency and great or irreparable injury while the petition was pending, and failed to establish a clear and unmistakable right to justify issuance of the writ.

Maj. Gen. Barbieto moved for reconsideration, but the Court of Appeals in a Resolution dated 22 September 2008 denied the motion for lack of merit. It emphasized that Maj. Gen. Barbieto did not establish the grounds enumerated in Section 3, Rule 58 of the Revised Rules of Court at the outset. It also reiterated that the absence of urgency and irreparable injury meant that a hearing need not arise, and that, being ancillary, injunctive relief would be improper where it would lead to a premature resolution of the principal issues in the certiorari petition.

Arguments Raised in the Present Petition

During the pendency of the Rule 65 petition before this Court, another Ombudsman Order was issued. Maj. Gen. Barbieto’s motion for reconsideration of the preventive suspension order was denied, and the order affirmed the preventive suspension. The Ombudsman held that due process is not rigid and varies by subject matter and necessity. It distinguished between preventive suspension as a preliminary measure and suspension as a penalty, reasoning that, in administrative context, strict notice-and-hearing is not always indispensable due to the immediate nature of preventive suspension. It likewise rejected Maj. Gen. Barbieto’s forum shopping contention by explaining that the Ombudsman case and the pending military tribunal case concern different aspects of fitness.

In the present petition, Maj. Gen. Barbieto faulted the Court of Appeals for grave abuse of discretion amounting to lack or excess of jurisdiction: first, for denying TRO and/or preliminary injunction without a hearing in alleged violation of procedural due process; second, for finding no extreme urgency or great or irreparable injury that would merit injunctive relief; and third, for allegedly depriving him of the constitutional right to liberty due to the Court of Appeals view that the injunctive issue was inextricably intertwined with matters raised in the certiorari petition.

Maj. Gen. Barbieto invoked Supreme Court Administrative Circular No. 20-95 and argued that an application for TRO should be acted upon only after all parties were heard in a summary hearing. He claimed that all elements for preliminary injunction existed because his six-month preventive suspension had already expired on 28 August 2008, yet he remained under arrest and confinement, which he characterized as an ongoing deprivation of liberty requiring immediate judicial intervention.

The Office of the Ombudsman countered that Administrative Circular No. 20-95 applied to trial courts only. It asserted that the Court of Appeals complied with procedural due process by requiring respondents to file a comment. It also argued that granting injunctive relief would prematurely resolve the principal certiorari controversy, and that the issue on the propriety of preventive suspension was moot after expiration on 28 August 2008, because continued confinement was no longer due to the Ombudsman suspension but to Lt. Gen. Yano’s Order of Arrest. Lt. Gen. Yano substantially adopted these arguments and added that, as Commanding General, he had authority under the Articles of War to issue the Order of Arrest.

The Court’s Disposition and Reasoning

The Court clarified at the outset that Maj. Gen. Barbieto sought injunctive relief to enjoin two distinct orders issued in separate proceedings by different authorities: (1) the preventive suspension order of the ODO-MOLEO in OMB-P-A-08-0201-B; and (2) the order of arrest issued by Lt. Gen. Yano in contemplation of General Court Martial proceedings. The preventive suspension order, the Court explained, suspended Maj. Gen. Barbieto from office for six months pending administrative proceedings. It did not direct his arrest. His arrest and continued confinement were attributable solely to Lt. Gen. Yano’s Order.

The Court then held that Maj. Gen. Barbieto’s petition had become moot and academic insofar as it sought to enjoin the preventive suspension order. The ODO-MOLEO’s six-month suspension, ordered on 29 February 2008, had expired on 28 August 2008. The Court reasoned that any ruling on whether injunctive relief should have been granted to stop the preventive suspension would no longer serve any practical purpose because the act sought to be enjoined had been fully consummated. It reiterated the general rule that courts refrain from expressing opinions on moot issues since no justiciable controversy remains and no actual relief would be negated by dismissal.

As to Lt. Gen. Yano’s Order of Arrest, the Court dismissed the petition for lack of merit. It stressed that the grant or denial of a writ of preliminary injunction is lodged in the sound discretion of the court taking cognizance, and such discretion is reviewable only for grave abuse of discretion. It defined grave abuse of discretion as capricious and whimsical exercise equivalent to lack of jurisdiction, and distinguished it from mere abuse of discretion.

The Court found that the Court of Appeals did not commit grave abuse of discretion in refusing to issue a TRO and/or writ of preliminary injunction against the enforcement of Lt. Gen. Yano’s Order of Arrest. It held that Maj. Gen. Barbieto could not rely on Administrative Circular No. 20-95 because that circular governed TRO and preliminary injunction applications filed before trial courts. The Court instead looked to the 2002 Internal Rules of the Court of Appeals, particularly: (a) Section 2, Rule IV, which provides that when a petition involves an urgent matter, the Presiding Justice may act on the petition, subject to raffle, and contains no requirement of a prior summary hearing before action; and (b) Section 4, Rule VI, which provides that the hearing requirement for preliminary injunction is satisfied by the issuance of a resolution served on the party sought to be enjoined requiring a comment within a period not exceeding ten days, with the option for the appellate court, in its sound discretion, to set the application for hearing.

The Court held that the Court of Appeals satisfied these requirements when, in its 4 April 2008 Resolution, it directed respondents to submit their comment within ten days. It further invoked the doctrine that due process is not denied when a party is afforded the opportunity to be heard through pleadings or verbal arguments. What the law proscribes is the lack of opportunity to be heard, not the absence of a particular hearing mode.

On the claimed right to a hearing on the preliminary injunction, the Court also emphas

Case Syllabus (G.R. No. 184645)

The case involved a Petition for Certiorari under Rule 65 that assailed Resolutions dated 6 August 2008 and 22 September 2008 of the Court of Appeals in CA-G.R. SP. No. 102874.
The petition sought review of the appellate court’s denial of the prayer for a Temporary Restraining Order (TRO) and/or writ of preliminary injunction to enjoin the petitioner’s arrest and confinement and/or to lift the related preventive suspension and warrant of arrest.
The petition was filed by Major General Jose T. Barbieto, who was the Division Commander of the 4th Infantry Division, Philippine Army.
The respondents included the Court of Appeals and several Ombudsman and military officials, including Mary Rawnsle V. Lopez, Eulogio S. Cecilio, Emilio A. Gonzalez, Ombudsman Merceditas Gutierrez, and Lieutenant General Alexander B. Yano.
The Supreme Court dismissed the petition and affirmed the Court of Appeals, while directing it to resolve the pending Petition for Certiorari in CA-G.R. SP. No. 102874 with dispatch.

Parties and Procedural Posture

Maj. Gen. Jose T. Barbieto filed a Rule 65 petition challenging two Court of Appeals resolutions that denied interim injunctive relief.
The challenged Court of Appeals resolutions denied a TRO and/or preliminary injunction in connection with the petitioner’s pending certiorari case in CA-G.R. SP. No. 102874.
The Court of Appeals had refused both the initial request for injunctive relief and the petitioner’s motion for reconsideration.
During the pendency of the Supreme Court petition, the Office of the Ombudsman issued an order that denied the petitioner’s motion for reconsideration of the preventive suspension order.

Key Factual Allegations

Multiple Complaint-Affidavits were filed before the ODO-MOLEO by various personnel of the 4th Infantry Division, PA, against Maj. Gen. Barbieto and Staff Sergeant Roseller A. Echipare, alleging grave misconduct and violation of Republic Act No. 6713.
The charges alleged extortion of amounts ranging from P25,000.00 to P30,000.00 from applicants in order to guarantee enlistment in the Philippine Army.
The charges also alleged extortion of money from soldiers seeking reinstatement, in exchange for the petitioner’s approval of reinstatement despite prior disapproval by the 4th Infantry Division Reinstatement Board.
The charges further alleged anomalies in the clearing of payroll of the Balik Baril program fund of the AFP.
The administrative case was docketed as OMB-P-A-08-0201-B, while the criminal case was docketed as OMB-P-C-08-0204-B.

Preventive Suspension by Ombudsman

On 29 February 2008, the ODO-MOLEO ordered the preventive suspension of both Maj. Gen. Barbieto and S/Sgt. Echipare for six months during the pendency of OMB-P-A-08-0201-B.
The preventive suspension order was issued pursuant to Section 24 of Republic Act No. 6770 and stated it was immediately executory under the law.
The order provided that any delay attributable to the respondents would not be counted in computing the preventive suspension period.
The preventive suspension order directed the Armed Forces’ Chief of Staff to implement the order immediately and to notify the Office within five days regarding implementation status.
The petitioner filed a Motion for Reconsideration of the preventive suspension order.

Arrest by Commanding General

In parallel with the Ombudsman proceedings, the Army Investigator General conducted an investigation on the same charges and recommended indictment.
The recommendation was approved by Lt. Gen. Yano, who caused the petitioner’s indictment for violations of Articles 55, 96, and 97 of the Articles of War, and caused the same for S/Sgt. Echipare under Articles 96 and 97.
The petitioner’s 10-day leave of absence took effect on 20 February 2008 to pave the way for an impartial investigation.
On 13 March 2008, Lt. Gen. Yano issued an Order for “Arrest and Confinement of Major General Barbieto AFP and SSG Echipare PA” to arrest and restrict them to quarters pending investigation with the end view of a General Court Martial Trial.
The petitioner was arrested and confined to cluster officer housing, while S/Sgt. Echipare was transferred and detained at the Custodial Management Unit (CMU) on 18 March 2008.

Court of Appeals Injunctive Proceedings

Without waiting for the Ombudsman to resolve the petitioner’s motion for reconsideration, the petitioner filed a petition before the Court of Appeals for certiorari with prayer for a TRO and/or writ of preliminary injunction.
The petition in the Court of Appeals was docketed as CA-G.R. SP. No. 102874.
The petitioner specifically prayed for the issuance of a TRO to lift and hold in abeyance the preventive suspension order, and to nullify the warrant of arrest and confinement issued by Lt. Gen. Yano.
The petitioner also prayed for a hearing on the preliminary injunction and, after such hearing, for the issuance of a permanent injunction.
The Court of Appeals required the respondents to submit their comment within ten days as justification for why the TRO and/or preliminary injunction should not issue.
On 6 August 2008, the Court of Appeals denied the request, reasoning that there was no extreme urgency, no great or irreparable injury, and no clear and unmistakable right.
On 22 September 2008, the Court of Appeals denied the motion for reconsideration, stressing the absence of substantial issues and that the petitioner failed to establish the grounds under Section 3, Rule 58 of the Revised Rules of Court.

Issues Raised in Supreme Court

The petitioner argued that the Court of Appeals committed grave abuse of discretion amounting to lack or excess of jurisdiction by denying injunctive relief without hearing, allegedly violating procedural due process.
The petitioner argued that the Court of Appeals committed grave abuse of