Excluding petitions against the anti-terror law, there have been 6 major cases filed before the Supreme Court since the pandemic lockdown began mid-march, and the justices during this time, handed President Rodrigo Duterte two wins, while making others wait.
The Supreme Court junked without comment two petitions directly involving Duterte – the mandamus case to compel the president to disclose details of his health, and the legal challenge to the now expired emergency powers officially known as the Bayanihan to Heal as One Act.
The rest of the petitioners just have to wait. These include prisoners pleading for temporary bail to escape increasing jail infections and broadcast giant ABS-CBN, which has started laying off hundreds of workers because of a killed franchise.
There is also a pending petition to compel the government to conduct coronavirus mass testing. According to the uploaded decisions on its website, since the lockdown began on March 15, the Supreme Court has decided on only 7 other petitions involving money dispute, foreclosure, disbarments, homicide, and graft.
Former Supreme Court spokesperson Ted Te said it’s not really an issue of speed.
“It is really a question of trust – do we trust the justices placed there?” Te told Rappler.
A holistic petition seeking the grant of temporary bail to vulnerable and low-risk prisoners has been pending for 4 months now in the Supreme Court, and a decision is yet to be finalized. It didn’t help that the earlier lockdown forced justices to meet en banc online, contributing to further delays.
Sources have confirmed to Rappler that justices have come to an agreement to remand the cases to the lower courts, meaning it will be up to the respective lower courts to decide whether each prisoner can be granted bail.
The petitioners are 22 political prisoners – one of whom has already given birth in jail since the filing of the case, and has been kept separate from her newborn.
The decision is yet to be promulgated, as justices resolve whether they will dismiss the petition without prejudice to the lower court plea, or just deem it closed and terminated, according to a source.
Lower courts will be ordered to tackle the petitions for bail with utmost dispatch, the source added.
“It has been a long and difficult wait, and hurtful because while we expected expedient action, over (four) months have come and gone although it’s a life and death situation now inside overcrowded and disease-ridden jails,” said prisoners’ rights group Kapatid.
Te said that to remand the cases to the lower courts is the correct decision “except that it could have come sooner – when it could have been more relevant.”
“The Court is not a trier of facts and therefore the circumstances of each detention cannot be inquired into by the Court at first instance, meaning directly,” said Te.
Law professor Tony La Viña said the prisoners’ case underscores the question of whether bringing it to the judiciary was the best option for such an urgent matter.
Another route would have been through the executive – but so far the Department of Justice (DOJ) has only eased requirements for parole and clemency for convicts.
Jail spaces continue to shrink, such that prisoner transfers are prohibited for now, risking a bottleneck in equally-crowded police stations. The police continue to arrest quarantine violators, and is still keeping 1,683 of them as of August 8 even though it’s a bailable offense.
Te said the Justice Sector Coordinating Council (JSCC) could have convened to think of responses that can be made outside of the court.
The JSCC is composed of the Supreme Court, DOJ, and the Department of the Interior and Local Government (DILG) to which the Bureau of Jail Management and Penology (BJMP) is attached. It’s the BJMP which has jurisdiction over prisoners on trial.
For its part, the Supreme Court has reduced bail for poor prisoners, and ordered judges to strictly comply with already existing decongestion measures, such as temporarily releasing prisoners in shelved cases or cases without witnesses.
“The coordination at top level could have provided a quicker and more relevant remedy,” said Te.
Before the House of Representatives killed the franchise of ABS-CBN, the network ran to the Supreme Court for a quick remedy even though many are of the opinion that the high tribunal is not the place for such.
This is the May 7 petition of ABS-CBN that sought the revocation of the National Telecommunications Commission’s (NTC’s) cease and desist order.
It was supposed to be tackled again by the en banc on August 4, but justices did not hold a session that day since it fell on the first week of the courts’ reversion to physical closure due to the modified enhanced community quarantine (MECQ).
At the heart of that petition is whether it was right for the NTC to issue a cease and desist order, when it could have given the network a provisional authority to air while the renewal hearings were ongoing. But what can that petition do for ABS-CBN when there is no longer a franchise renewal process to speak of?
“It is moot,” said La Viña, but he said the en banc could still resolve the petition to have a clear-cut guideline on NTC provisional authorities.
“Ultimately, it depends on the appetite of the Court, dictated largely by the member in charge who will make the initial recommendation for the en banc’s consideration,” said Te.
The Supreme Court earlier junked Solicitor General Jose Calida’s quo warranto petition filed in February against ABS-CBN. The Supreme Court junked it on the basis of being moot because by the time it released its decision on June 23, the network’s franchise had already expired.
For Te, the quo warranto petition is where the Supreme Court could have been more decisive.
“The Sereno case notwithstanding, the grounds for [Calida’s] quo warranto are clear and remain clear – the petition was frivolous and could have been summarily dismissed outright – even without comment,” said Te.
La Viña also said the Supreme Court could have acted before the lower chamber killed the franchise.
“Before the House of Representatives acted on the franchise, this fell squarely on the Supreme Court’s jurisdiction and it should have decided on the merits,” said La Viña.
The Duterte mandamus case was the first time since the 1987 Constitution that Section 12, Article VII of the Constitution would have been tested. It says: “In case of serious illness of the President, the public shall be informed of the state of his health.”
Mandamus is a writ that compels the government or officials to perform a duty. The petition argued that under Section 12, Article VII, disclosing the president’s health is a constitutional duty.
But what falls under serious illness, and who has the responsibility to inform the public? These were the constitutional questions.
A majority of 13 justices dismissed the petition outright – or without requiring comment – saying, Duterte’s televised speeches would prove the President is healthy.
Citing transcripts of the constitutional commission deliberations, the justices said the President has the discretion to “choose the appropriate means of releasing information to the public.”
It was a decision “overly deferential” to the President, said dissenting justice Benjamin Caguioa.
Te said that while he believes the mandamus case was “risky,” the Supreme Court could have required comment first from Malacañang to at least ventilate the issues.
“Ultimately, the original sin is that of Congress because a law passed without reference to any president would have been ideal – spelling out specific timelines and guidelines for periodic release of the president’s health – but it did not pass such a law,” said Te.
“Could mandamus have compelled passage of a law?” Te asked.
La Viña said the case was important to avoid a repeat of history when the late dictator Ferdinand Marcos hid his lupus from the public.
“This provision was put in so we do not go back to the Marcos era guessing game about the president’s health. We are doing that again,” said La Viña. (READ: Can Supreme Court under Peralta repeat Arroyo-time judicial activism?)
Now the Supreme Court is faced with a tough challenge of resolving mounting petitions to void Duterte’s pet measure, the anti-terror law.
Duterte enjoys a winning streak in the 15-person Court, which is currently occupied by 11 of the President’s appointees, soon to be 12.
There are 25 petitions against the law, with more to come, most of them requesting for an urgent Temporary Restraining Order (TRO). Since July 1 when the first petition was filed, the Supreme Court has just been consolidating them and requiring comments from the Office of the Solicitor General.
When is the en banc going to act?
“Consolidating to an earlier filed petition, and asking respondents to file a comment, necessarily means that deliberation by the court is actually taking place. Asking the respondents in a petition to comment is part of due process,” said Supreme Court spokesperson Brian Keith Hosaka.
There are no hard and fast rules for when the Supreme Court can issue a TRO, if ever it will. “That’s anyone’s guess,” said Te.
In past challenges to contentious laws, the Supreme Court issued a TRO against the Cybercrime Law within a month of its effectivity. For the Reproductive Health Law, it took the Court 3 months from effectivity.
More groups have expressed intent to file their own petitions but Hosaka said “the Court is not waiting for each petition to be filed.”
If the Supreme Court does not issue a TRO, Lyceum Law Dean Sol Mawis said it wouldn’t “necessarily mean that the applicant’s cause is a lost cause.”
“A TRO is merely an ancillary remedy. The denial or grant of it does not mean that the merits of the case have been preordained,” said Mawis.
For the National Union of Peoples’ Lawyers (NUPL), counsel for several petitioners, the TRO cannot come soon enough.
The petitions pointed out a climate of fear engendered by the Duterte government. They also said that the anti-terror law, if not stopped, would result in a heavy crack down on legitimate dissent, and subject innocent people to intimidation, arrests, and jail time – if not death by vigilante groups ala tokhang.
“If only for these, an expeditious and crucial (TRO) meanwhile can at least put a halt to such aggravations,” said the NUPL.
“Give the unprecedented number and diversity of the petitions contesting the law the respect and seriousness they deserve,” the group asserted. – Rappler.com