On August 24, 2020, just a month after the effectivity of the feared anti-terror law and the filing of the petitions, the Free Legal Assistance Group (FLAG) pleaded the Supreme Court: Please issue a TRO now.

A TRO is a temporary restraining order (TRO), a relief that the Supreme Court issues to stop laws or policies whose legality is in question. President Rodrigo Duterte’s anti-terror law is one of the most debated measures in recent history.

FLAG’s pleading sounded urgent: “In this eleventh hour, this Court stands as the last and only vanguard of our fragile democracy. And unless it enjoins the enforcement and implementation of the anti-terror act, the foremost freedoms of the Bill of Rights…will be irrevocably and irreversibly chilled and mangled beyond recognition.”

But no TRO came.

On September 14, Aetas Japer Gurung and Junior Ramos were charged with terrorism under the feared law, making them the first case, and in many ways, a test case. They have been accused of being communist rebels who shot a soldier dead, which they have denied.

By October, the National Union of Peoples’ Lawyers (NUPL) pleaded more graphically for a TRO: “It may spell the difference between life and death.”

Also in October, the petitioner group of retired justice Antonio Carpio submitted their plea, reminding the Court that all they need for a TRO is a demonstration of a clear and irreparable injury, which Carpio said is present.

Still, no TRO came, even though for past laws like the cybercrime law, a TRO was issued after only a month.

Conscience of government

The law has been in effect for 7 months, and the fanfare started in the biggest legal event in town – the oral arguments featuring the best of the best, livestreamed for all academics to parse.

In the district jail of Olongapo, Gurung and Ramos sat distraught, not fully comprehending everything that was happening except that they and their wives were in jail, with freedom looking dim.

It is the best and worst of justice: a flex of fancy credentials in Padre Faura, and in Olongapo, a bunch of lawyers going in and out of jail, making Aetas attach their thumbmarks on documents they couldn’t read.

In the middle of all of it is the Supreme Court, which, as pleadings said, holds freedoms in its hand.

For the anti-terror law, after the denial of the Aetas’ petition to intervene, a TRO “is extremely difficult to secure,” said Abdiel Dan Elijah Fajardo, former Integrated Bar of the Philippines (IBP) president who also teaches constitutional law.

If there was a TRO, the Aetas would have never been charged with terrorism. But they were, and for a while there, their case was seen as a boost to the petitions’ legal standing in the Supreme Court. It’s the “actual case” that justices discussed during arguments.

But the Supreme Court denied the Aetas’ petition to join the case because a trial was already underway at the Olongapo Regional Trial Court (RTC).

Fajardo said there are two instances the Aetas’ case can still be taken up by the Supreme Court:

• Raise the constitutionality of the law in the trial court, and if denied, take it up to Court of Appeals all the way to Supreme Court
• If convicted, raise an appeal questioning constitutionality until it reaches the Supreme Court

Fajardo said there’s a probable scenario of the Supreme Court allowing a facial challenge only for free speech issues. Facial challenge, or a challenge without a direct injury, is generally allowed only in free speech cases.

Because the Aetas were accused of shooting a soldier, “the case of the Aetas (murder) may be seen as presenting questions of conduct, not speech,” said Fajardo.

Fajardo also said that as more people are charged, there will be “a race among cases [on] which one will reach the Supreme Court first.” The first to get a favorable judgment will have a positive impact on the rest, said Fajardo.

It’s all an interesting discussion on constitutional litigation. But it also involves more people being charged, and the Aetas facing an indefinite period in prison.

A TRO could stop all these.

“As a practitioner, I can say that a TRO would have been ideal because it could have stopped all prosecutions under this new law while its validity is being considered. Even the intended prosecutions,” said Fajardo.

“There is enough precedent on cases of transcendental importance for the Court to go ahead, as the conscience of government,” said Fajardo.

Will this Court surprise us?

It’s not lost on the public that the Supreme Court is now made up of 11 Duterte appointees, nearing 12, as Chief Justice Diosdado Peralta will retire early next month. 

Duterte’s government has also, so far, won all its cases in the Supreme Court.

“The better predictor [of what their votes would be] is their past votes, following that it’s gonna be a steep climb, it seems. But the one thing I do believe in is that this Court is a court of experienced jurists. They do have their own independence,” constitutional law Professor Tony La Viña said in an interview with Rappler’s Law of Duterte Land Podcast, conducted before the Supreme Court told lawyers of petitioners to refrain from talking about the case. (La Viña is counsel to one petition.)

The Supreme Court’s decisions are not the only ones at issue, but the justices’ absence of decisions as well. Some of Duterte’s policies being questioned before the Court have been unresolved for a couple of years, allowing the likes of the drug war to continue.

During the pandemic, the Supreme Court mooted or remanded several decisions, leaving legal questions unanswered on issues such as freedom of the press (ABS-CBN case) and the rights of a prisoner in a humanitarian crisis (Nasino et al case).

“Unlike the political department that has to act immediately, it matters that the Court deliberates and comes out with a rational deliberation, and sometimes coming out with a rational deliberation requires a lot of discussion as to where we are going to bring precedence or doctrine,” said Associate Justice Marvic Leonen in a press conference held by the Foreign Correspondents Association of the Philippines (Focap) on January 29.

For La Viña, the anti-terror law case is not “the final chance of democracy.”

“I see this as just another battle, a big one but there will be other battles, and some would be won, some would be lost. Legal history for me is not a zero-sum game where you’re always winning and you’re always achieving something better,” said La Viña.

“But my own experience as a lawyer and as a legal historian is that the Court can surprise you, even this Court can surprise you,” La Viña added. – Rappler.com