am deeply bothered by that Temporary Restraining Order (TRO) issued by a court stopping the holding of the Annual Regular General Assembly of Members (ARGAM) of the Benguet Electric Cooperative (BENECO).
But before anything, let me make my proper disclosures: I am not counsel of either party in that case. I am not even a registered member-consumer-owner (MCO) of BENECO. I am, of course, a lawyer, and I do represent some individuals connected with BENECO but NOT in that case.
Also, that ARGAM was supposed to be held last June 4, but because of the TRO is was not held. So whatever I write here is moot and academic, the law-abiding community is complying with the court’s order. No one is defying it, least of all me.
The reason I’m writing this is for purely educational purposes. Ignorantia legis non excusat. Ignorance of the law excuses no one. This is another way of saying nobody has any excuse not to try to understand the law. There is nothing so arcane or difficult about the law that one can say, “I don’t understand it so how can I obey it?” No, no, no—the law is written in simple English. You CAN understand it. Anybody can. But, at the very least, you have to TRY.
This also places the burden on those of us who DO understand the law better than others to help advance the cause of legal education in this country. If you’re not happy with the state of political awareness among the average citizens, TAKE THE BLAME because you who knows better could have educated some of them.
First of all, reject the popular suggestion that TRO’s are “for sale.” In fact, TRO’s are FREE. If you are one of those new lawyers who just took your lawyer’s oath—or one of their new clients—understand that obtaining a TRO is NOT a great achievement or an indication of exceptional legal prowess. TRO’s issue as a matter of course (the variety that lasts for 20 days extendible). And a 72-hour “emergency TRO” will issue as a matter of course AND with only the most nominal requirement of due process. Don’t expect a thorough contemplation of the deepest arguments for and against a TRO to be the basis upon which it is granted. You might be thinking of an INJUNCTION (whether preliminary or permanent)—that uses up more brain matter to argue for or against and win. But a TRO? Any prudent judge will err on the side of granting it because it is much easier to prevent an action than to undo its effect.
But what a judge must do is just make sure the person (natural or artificial) applying for the restraining order is ENTITLED to it.
To be entitled to a restraining order, you must prove that you have sought it to protect a CLEAR RIGHT. This requirement is so specific that the Rules and the Supreme Court has often qualified that this right must be A RIGHT "IN ESSE" (meaning starkly essential).
Let me illustrate the difference of an ordinary right from a right in esse. If you want to rebook a bus or plane ticket, that is an ordinary right. But if you are already at the boarding gate, and the flight stewardess refuses to let you board because you were late 10 minutes so she gave your seat to a chance passenger, you have a right “in esse” that is about to be trampled on. Sure, you and the flight stewardess can debate about the validity, interpretation and application of the punctuality policies of the airline. At the boarding gate is not the time and place to do that. So you don't need overwhelming arguments and evidence to make your point. The mere fact that you have a PAID TICKET--and who knows how the course of your life will change if you miss your flight--ought to be enough. So long as the darned airplane is still on the ground, and the flight stewardess herself is not yet inside the plane, your right is demonstrably in full motion and presently in total exposure to risk. Time is of the essence and you are running out of it.
Of course, this is not a perfect analogy but you get the idea.
Is the applicant for the TRO in the BENECO case possessed of a CLEAR RIGHT IN ESSE?
No.
It is well argued that General Manager Engr. Melchor Licoben is being challenged, along with some members of the Board, for having no authority to act. Then WHO has the authority to act in lieu of them? Have they CLEARLY demonstrated their ability to carry out that authority?
It is not enough to point out that Licoben's or the Board's authority is doubtable. You must present an UNDOUBTABLE authority yourself. You must rely on the strength of your own claim, and not on the weakness of the status quo. In the case of BENECO, the leadership controversy is now pending resolution before the Court of Appeals. It needs no pointing out that the CA is higher up in the hierarchy of courts than a Regional Trial Court. In situations like this, the Supreme Court always reminded judges to observe a "becoming respect and ordinal deference" to the wisdom of a higher jurisdiction.
You don’t have to go into a long and deep discussion about who is the “right authority” and who is not. You can flaunt an appointment paper signed by the UN Secretary General and it would make no difference. A court does not need to look for evidence of everything at such a preliminary stage. There are certain things a court can take "judicial notice" of--meaning to appreciate as factual without need of proof--such as clearly observable facts or generally-known public information. Judges are intelligent people, they're not idiots.
So a court cannot shirk from making judgment calls that amount to conclusions not needing proof. In effect, the Rules tell a judge, “What do YOU think? You should know, because there are certain common sensical things you are supposed to know by reason of the fact that you ARE a judge.”
For example, a judge cannot NOT know that GM Licoben and the assailed board directors ARE HOLDING OFFICE at the BENECO building. The judge cannot NOT know that he or she himself or herself is paying his or her electric bill to BENECO. He cannot NOT know that his electricity has not been cut by reason of not paying his bill to ANYONE else.
Owing to the great amount of press coverage of the events of last October 18, 2021--when persons claiming authority to take over BENECO dismally FAILED to enforce such authority, even with the overwhelming use of force and law enforcement personnel bristling with high-powered guns--ANY judge has ample reason to pose and say, "Teka muna, e bakit hanggang ngayon 'outside the kulambo' pa rin kayo kung kayo talaga ang may karapatan?"
It is easy to STATE A RIGHT, but what the law requires for you to be able to obtain injunctive relief is to demonstrate that right to be SO CLEAR it has prevailed over prior challenge.
So if some party comes forward and says, “I have this certification and that to show that I am the REAL authorized person” the judge can—in fact, MUST—say, “How can I believe you? It is certainly NOT CLEAR to me why you are outside BENECO and the persons you are assailing are INSIDE of it.”
Secondly, a restraining order is intended to temporarily stop the doing of an ACT. It is never intended to suspend the effectivity of a law, ordinance, document or contract. The holding of the ARGAM is a provision in the bylaws of the cooperative, which is continually effective by operation of law.
Let me illustrate this more clearly using another analogy. If you think a candidate is not qualified in an election, you can seek to disqualify him—stop him from doing the act of running for office—but you cannot stop the holding of the election itself.
An act performed by an INDIVIDUAL is legally stoppable because the court can acquire jurisdiction over that person. But an act performed by the general populace IS NOT capable of restraint because it is impossible for the court to acquire jurisdiction over the general public.
This is why, in my humble opinion, no court can stop the holding of a general assembly (of any electric cooperative) AS SUCH and THAT LATE IN THE DAY—on the eve of the event itself. But let me be clear. In my own law practice, I have successfully stopped the holding of stockholders’ meetings of corporations. How? By barricading the board room with a court order? No--by obtaining a court order stopping the corporate secretary from causing the publication of the NOTICE OF STOCKHOLDERS MEETING. This meant that the “general populace” that was supposed to meet would never have known when, where and what time to meet. I stopped it early.
Suppose the Board Secretary had ALREADY published the notice, would I have given up? No. I would have filed a MANDAMUS to compel that board secretary to revoke that announcement. I don’t know if I would have won, but I know I would have been able to obtain court jurisdiction over the board secretary.
My students in Alpha Class (those spoiled brats!) have heard me explain that “you cannot command anyone who cannot hear you.” That’s the simple meaning of jurisdiction.
Thirdly, a temporary restraining order—and in fact, EVEN a preliminary injunction—cannot be issued if it would have the SAME EFFECT as the FINAL INJUNCTION being sought itself. Otherwise, what’s the point of holding any further hearings?
This is why most of my friends who are judges are loathe to restrain DATED EVENTS. It’s not like if you prevent Juan from celebrating his birthday with a TRO, you can tell him later when the TRO is lifted, “go ahead, Juan celebrate your birthday NOW!”
By stopping the ARGAM which is mandated by the bylaws to be held on a specific date or dates, you prevent its being held for the remainder of the year—because the bylaws do not permit it to be held at any other time.
So by the simple reckless granting of a TRO, the court in effect cancelled the holding of the ARGAM for 2022—and that is way , way MORE than even the petitioners themselves prayed for.
If, after hearing full arguments, the court decides NOT to grant the ultimate permanent injunction, the court certainly cannot say in its Order, “go ahead, hold your ARGAM YESTERDAY!”
This is why as fluid and flexible as it is to decide whether or not to grant a TRO, every judge must be circumspect in so deciding because not all judgment errors are reversible by appeal. Some things are simply irreversible, you cannot force toothpaste back into the tube.
Lastly, although I said TRO’s are FREE, injunctions are NOT. Before an injunction can be issued, the petitioner must state his willingness to POST a bond , in the amount fixed by the court to answer for any damages that the BENECO might suffer if it is proven in the long run that the petitioners were NOT entitled to the injunction. How does a court arrive at a pecuniary estimation of that damage? Among courts in Manila, Quezon City, Makati and other courts I’ve been to, the judge FOR A SIMPLE INJUNCTION of an event of this magnitude and implications would usually require a bond of AT LEAST One Million Pesos.
If you don’t post this bond, will the court dismiss your petition? Yes. In fact, worse than that, if you even FAIL TO STATE that you are WILLING to post such bond, the court should dismiss your complaint right away.
That is--in a perfect world, of course.*
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