Supreme Court of the Philippines

As killings escalate, CJ Peralta says High Court ‘careful’ in using unique power

Lian Buan

TOP MAGISTRATE. In this file photo, Chief Justice Diosdado Peralta answers questions from reporters on November 8, 2019.

File photo by Ben Nabong/Rappler

A week before he retires, Chief Justice Diosdado Peralta keeps distance from calls to review rules and act more aggressively to protect lawyers

As killings escalate and spill over to members of the judiciary, Chief Justice Diosdado Peralta said the Supreme Court prefers to be “careful” in flexing its extraordinary rule-making power, adding that they have to be prudent in exercising such a “rare” authority.

“We are also very careful in performing that duty because it is only the Philippines where the Supreme Court is allowed to promulgate rules. Kaya inaalagaan namin, kasi yung power na yan bihira eh (that’s why we are taking care of it, because it’s a rare power),” Peralta said in a chance interview with reporters on Friday, March 19, on the sidelines of the groundbreaking of the new Hall of Justice in Caloocan.

Peralta is talking about the unique power granted by the Constitution to the Supreme Court, which is “essentially a law-making power,” according to retired senior justice Antonio Carpio.

It is this unique power that lawyers across all sides – Carpio included – are invoking as they ask the Supreme Court to intervene in the various issues surrounding the judiciary.

One is whether there is a need to review the rules on search warrants because their services have resulted in the killing of activists and even drug suspects, and second if there is a need to better protect lawyers, judges, prosecutors, and even human rights defenders. (PODCAST: Law of Duterte Land: Your Honors, they are killing lawyers)

All those potential actions will fall under the rule-making power of the Court, said Carpio in a column in the Philppine Daily Inquirer.

Peralta said the en banc will discuss these issues in next Tuesday’s session, March 23, which is also his last session. He retires on March 27.

Also included in Tuesday’s agenda, according to Peralta, are calls to address the alarming surge in lawyer killings – 61 under President Rodrigo Duterte compared to 49 in 44 years.

“Everybody is concerned, lawyers are being attacked, they are threatened. There must be really something wrong, but to conclude that this one is responsible, that’s another thing, we have to investigate,” said Peralta.

‘It’s too late for me’

There have been comparisons to the 2007 Supreme Court when then-chief justice Reynato Puno did a rare move by convening a national summit that resulted in the promulgation of the writs of Amparo and Habeas Data, extraordinary protective writs for human rights defenders. 

This was done in the same context – the increased number of killings under the Arroyo government. Puno said then that “the issue commands urgency.”

Asked if he’s considering doing the same, Peralta said: “If you ask me now, it’s too late for me to do that, because I have only one week.”

Rappler did ask Peralta in an online press conference in June 2020 if the Supreme Court was seeing a situation that was similar to the period that prompted Puno’s action. At that point, lawyers had called the situation “quantitatively and qualitatively” worse than in 2007.

“If there are complaints about disappearances and unnecessary surveillance, they can come to court and then file the necessary petitions, and there are petitions pending before the Court of Appeals and habeas data and writ of amparo. The rules have not changed, it’s still there,” Peralta had said then. (Watch the answer starting 38:09 of this video.)

Peralta said there were no recommendations to amend the writs of Amparo and Habeas data, “so that means that they were very good.”

On the contrary, Court Administrator Midas Marquez committed to the House of Representatives in September 2020 that Peralta, as the head of the rules committee, would review the writs to see how they could be strengthened. There have been complaints that the writs have become weak especially in the time of Duterte. (PODCAST: Law of Duterte Land: Are extraordinary writs still effective in the time of Duterte?)

Peralta, Duterte’s 3rd chief justice appointee, said any amendment to any rules should undergo thorough deliberation to ensure that the changes remain “legal and constitutional.”

“We are, I think, still in Rule 114. Search warrant is in Rule 126, [and] any amendment of Rule 126 may be done by this committee. Any amendment or suggestion that they want… we will invite the parties, we will also invite police officers and have a debate on this. So when the rules come out, they will not say that this is biased to this, or to this. We do not like that. The rules must be done, must be applicable to all persons without bias and discrimination,” said Peralta.

On another human rights issue, Associate Justice Marvic Leonen had proposed last year promulgating rules on the Writ of Kalayaan to better protect prisoners.

“Probably the one who will replace me na lang so that for the last week of my term matulog naman ako nang mahimbing (so I can sleep soundly),” said Peralta, referring to the 3 applicants for chief justice.

One argument for judicial restraint is the apprehension about breeding judicial dictators, expressed by Leonen during oral arguments on the case challenging the unilateral withdrawal of Duterte from the International Criminal Court (ICC). (The SC recently junked this case for being moot.)

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Search warrants, body cams

The Supreme Court last week considered requiring policemen to wear body camera in the service of warrants, an action done motu proprio, or on its own, under the rule-making power, but Peralta is quick to temper expectations that this can be done fast.

“When we come up with the rule, we follow the same proceedings as the proceedings in Congress, we have deliberation, we invite everybody involved, in fact in the committees we have, in the revision of the rules, the Integrated Bar of the Philippines (IBP) is represented, the academe is represented, the private groups are represented, the retired justices are represented, all of these are represented, you have to have a deliberation, then it can go to the en banc for another debate and deliberation then you have to publish,” said Peralta.

Before this, Marquez’s memorandum that said the implementation of search warrant is not a judicial act drew criticisms from the progressive side, who described it as a cop-out. Marquez also said that to act on the judges’ issuances of the search warrants could preempt any related case that may be filed.

Peralta echoed this stance, saying that they would have to wait for policemen to submit their returns to the court. A return is a report where police details what happened in the service of warrants.

 “Iba kasi yung pagserve ng search warrant, yung service ng search warrant yung  husgado wala kasing pakialam dun the only rule of the court is the issuance of search warrant,” said Peralta.

(Service of a search warrant is different, the judge does not care about the service of the seach warrant, the only rule of court there is the issuance of the search warrant.)

“That’s the procedure,” Peralta stressed. “Now until such time that the return is not yet with the court wala pa kaming ma comment (we cannot comment yet) because we do not know what actually would be the report of the seizing police officers.”

Carpio had written that the Supreme Court must “descend from their high perch” to uphold the constitutional rights of people especially in the wake of what happened in the Bloody Sunday Calabarzon killings.

It’s not as simple as that, said Peralta. “Hindi po puwedeng pasok dun, pasok dyan, then all of a sudden mali yun, mali yan. We do not like that. Baka sabihin nila si Chief Justice Peralta hindi alam ang ginagawa, marami namang nagsasabi maganda raw ang ginagawa ko, edi tuloy ang magandang ginagawa.” (You can’t just do this, and do that, then all of a sudden, this is wrong and that is wrong, we do not like that. People will probably say Chief Justice Peralta doesn’t know what he’s doing, but many are saying I’ve been doing well, so I’ll just continue the good work.)

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Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.