Wednesday, February 24, 2010

U.P. Student Regent's application for TRO vs. U.P. Administration goes right down to the wire

(Hall of Justice, Quezon City)

By Chanda Shahani

For Student Regent Charisse Bañez, it's literally right down to the wire for her February 22, 2010 application for an injunction with prayer for issuance of a writ of preliminary injunction and temporary restraining order (TRO), which was heard today, on February 24, 2010 at the Quezon City Regional Trial Court Branch # 215; restraining the University of the Philippines (U.P.) Board of Regents (BOR) from approving and implementing a draft BOR resolution seeking Banez's disbarment as a voting Regent before tomorrow's 9 a.m. meeting of the BOR on February 25, 2010 at U.P. Diliman

As of five p.m. today, February 24, there was no court resolution on Banez's application for a TRO.

The U.P. Administration is seeking Banez's disbarment as a voting Student Regent on the grounds that she was neither enrolled as a U.P. student or had filed a Leave of Absence (LOA) and was thus no longer a Student Regent at the time that she and a majority of other regents voted to allow her to vote pending the resolution of her case.

Assuming the TRO is approved through a court resolution ordered by the presiding judge, Hon. Judge Ma. Luisa Quijano Padilla, of RTC QC Branch 215, then the earliest time it could be released is at 8 a.m., and if it is not presented to the BOR before voting takes place on the draft BOR resolution, then Bañez will not be able to vote on her own case; and the BOR resolution is in danger of either being split by a tie, assuming that the BOR votes the same way it did on her being allowed to vote as a Student Regent last December 18, 2009 when Bañez squeaked through by five (5) votes to four (4).

Bañez's being unable to get a TRO or to get in time before voting takes place on her case allows the default scenario to take place; which is the U.P. Administration's insistence that she only sit as an observer Student Regent without being able to vote as a Student Regent.

Today's hearing at 10 a.m., was remarkable for the legal histrionics of U.P.'s legal counsel, Atty. Theodore Te, a professor of law at the College of Law, U.P. Diliman. Banez was represented by Atty. Henry S. Rojas, and collaborating counsel, Atty. Julius Garcia Matibag.

The hearing was essentially characterized by Atty. Rojas' emphasis on the urgency to implement the TRO in order to prevent the BOR implementing a draft resolution seeking Bañez's disbarment as a voting Regent before tomorrow's 9 a.m. meeting of the BOR on February 25, 2010 at U.P. Diliman. Atty. Te, on the other hand argued that there should be no TRO issued if it did not result in any grave or irrepairable injury or if an undue disposition was given to the case on its merits; considering that the volume of evidence involved was so voluminous that it would require the court to go to the main case which was already impossible in view of the time contsraints.

An analysis of timelines of both parties would indicate that both sides are playing for time, and this would affect the legal strategies of the legal counsels of both sides.

In the case of Bañez, a Court resolution allowing for a TRO and issued before the BOR meeting on February 25, 2010 would allow her to vote against approving and implementing a draft BOR resolution seeking Banez's disbarment as a voting Regent. If successful, she would still have to buy more time, however, for the BOR usualy meets once a month, and she may have to hurdle attempts to remove her again this March before the GASC (General Assembly of Student Councils) convenes in April 2010 to select a new Student Regent.

In the case of the U.P. Administration, a Court resolution denying Bañez's prayer for a TRO could effectively allow U.P. to roll out a series of well-laid traps which could include unilaterally implementing its individual interpretation of existing rules disallowing her to vote as a Student Regent without any practical judicial intervention during the remaining few months left in Bañez's term. By insisting that the issues raised by Bañez need to be addressed in a main case, U.P. is practically guaranteeing that the case will drag on for many years or well beyond the period of time when Banez's normal term of office would have lapsed.

Looming in the background, as the 600-pound gorrilla hanging over the issue of Bañez's disbarment as a voting Regent is the elimination of her swing vote as a Regent on December 18, 2009 in favour of Dr. Carlos Gonzales as the new Executive Director of U.P.'s Philippine General Hospital (PGH). Six (6) Regents, including Banez voted for Gonzales, while Five (5) Regents, including U.P. President Emerlinda Roman voted for outgoing PGH Executive Director Carlos Alfiler. Observers view the elimination of Bañez as part of a sub-plot to actually remove Gonzales by creating a divided vote of five (5) Regents for Gonzales and five (5) for Alfiler allowing for the implementation of a January 5, 2010 memo by President Roman appointing an OIC for PGH.

Although Atty. Rojas referred to the related issue of the PGH Executive Director in his opening statement, Atty. Te objected to this and called this “speculative,” and “irrelevant” to the complaint, asking that it be removed from the official record.

Although Atty. Te declined to be interviewed by the Diliman Diary, his arguments were notable for the passion, flair and erudition with which he argued, as well as his heavy emphasis on legal technicalities. However, Te's arguments also suffered from minimal or no references to the issues of fairness, ethics or the right of students to be represented. Writing in a blog in 2006 entitled “Vincula,” ( Atty. Te wrote revealingly that: “We have a saying among trial lawyers: if you are weak on the facts, pound on the law; if you are weak on the law, pound on the facts; if you are weak on the law and the facts, pound on the table.”

Other highlights of Atty. Te's arguments were:

  • While the summary proceedings were characterized by a “sampling of evidence” with the judge as the main audience, this particular hearing was not the appropriate time to hear the cause of action or legal justification for allowing the case to be heard.
  • Since Bañez's application for an injunction with prayer for issuance of a writ of preliminary injunction and temporary restraining order (TRO) was not an application for certiorari, or an injunction or for damages, then it was premature to consider the issues highlighted in her application before the court given that these issues neccessitated the furnishing the court with extensive proof and even cross examination resulting the court to go to the main case.
  • There was a need to join complex, interlocking issues and therfore the court could not yet receive evidence at the preliminary hearing.
  • The court would create a new status quo if it, through a court resolution, grants Bañez's application for a TRO given the fact that the act she seeks to restrain is a resolution of the BOR which is an act that has already been accomplished. He emphasized that the Supreme Court has already establoshed that a TRO cannot be done on an act already performed.
  • If the court intervenes and grants a TRO, then it would have to say that Bañez is qualified to act as Student Regent with full rights and responsibilities and that would be inconsistent with a necessity for a factual and legal application of the issues at hand, and that hearing was not the right forum.
  • Bañez's admission thar she was neither enrolled or on LOA was a “judicial admission binding on Bañez.”
  • Bañez's presence is not needed for a quorum. A public office is not a right, and a TRO will essentially reinstate her in office.
Atty. Rojas and Atty. Matibag argued their points for Bañez in a more phlegmatic manner than Atty. Te. The highlights of their points were:

  • Bañez is suing as Student Regent and not in her individual capacity
  • Bañez is asking for judicial relief which would result in a permanent injunction agains the implementation of the resolution of the BOR.
  • There was no quorum of the BOR last January 29, 2010 despite the claim of the U.P. administration that a quorum existed when a vote was taken to disbar Bañez as a voting member of the BOR. The reason for this is that out of the eleven (11) regents, only nine (9) showed up at the January 29 BOR meeting, but that three (3) of them had expired terms as acting regents.
  • Assuming that the presence of the three (3) regents with expired terms were counted, there were effectively only five (5) members who voted, since four of the other regents either staged a “principled walkout” during the BOR meeting or were unable to participate in the vote, leading to a lack of a quorum.
  • Bañez is a bona fide student of U.P. Los Baños due to a pending application despite claims of the U.P. Administration that she failed to submit her application for residency or file a Leave of Absence on time, and thus is no longer a U.P. student and therefore no longer a Student Regent.
  • An application for late residency has been acted upon by various colleges within the U.P. System and Bañez's application has not yet been acted upon.
The next hearing has been set to March 17, 2010 although these may frequently be reset or rescheduled.

No comments:

Post a Comment

Blog Archive

The Diary Archive