TROs and judicial corruption
IN a speech at Tagum City last week upon his return from China, President Duterte warned the Supreme Court and the Court of Appeals anew “not to abuse TROs.” This time, the warning was given in relation with the pending Mile Long case where the Metropolitan Trial Court ruling for the return to the government of the Mile Long Plaza in Makati City, was stalled by a Temporary Restraining Order subsequently issued by the Makati Regional Trial Court.
The President cautioned that a constitutional crises could result if the Executive, in turn, does not support the implementation of judicial decisions. The President likewise recalled the “historical practice” of judges of issuing TROs when paid by the favored parties.
The indiscriminate issuance of TROs is an old issue that was highlighted under Presidential Decree No. 1818 (prohibiting courts from issuing TROs in infrastructure and natural resource development projects and against government public utilities) and RA 8975 (that limits the issuance of TROs against national government infrastructure projects to the Supreme Court).
In fairness to the Judiciary, the Supreme Court has undertaken in the last several years a host of reform efforts addressing abuses in the issuance of TROs. Every lawyer should also know that the Judiciary, as an independent co-equal body with its own constitutional mandate, cannot act under direction in exercising judicial power over actual controversies. The court likewise has welcomed administrative cases related to the injudicious issuance/handling of TROs but it needs concretely filed cases before it can administratively proceed against specific magistrates or personnel.
Since the 1990s, the court has issued no less than seven circulars to all courts to remind judges to exercise judiciousness and care in the issuance of TROs and Writs of Preliminary Injunctions, and to strictly observe the prohibition against the issuance of TROs and preliminary injunctions under RA 8975.
From 2013 up to the present, the CA has only issued one (1) TRO against a government infrastructure project. In 2015, out of 2,039 petitions with a prayer for the issuance of a TRO on various subjects, the CA only issued 50 TROs, none of them involving government infrastructure projects. This translates to a mere 2.45% success rate. The SC itself issued only one TRO against a government infrastructure project in that year. Court leadership, though, admitted last year that the Court is still analyzing TRO data from the lower courts – the focus of the President’s present warning.
Of more serious concern is the President’s recollection of corruption in the Judiciary in relation with the issuance of TROs. President Duterte, of course, is not the first president to highlight judicial corruption. During his time, then President Joseph Estrada had occasion to characterize some judges and justices as “hoodlums in robes.”
Despite the Court’s efforts in combatting corruption and the resulting signs of improvement, there are still scalawags left in the Bench. An indicator of this reality is the disclosure on national television in 2014 by Atty. Lorna Kapunan, a leading practitioner knowledgeable in the ways of the courts, that corruption exists among judges and justices and even at the Supreme Court.
The court treated the allegation as an administrative matter and asked Atty. Kapunan to explain. Instead of acting pro-actively, however, the court simply noted Atty. Kapunan’s allegations after she claimed that her statement was based on hearsay, i.e., was not of her own personal knowledge.
Thus, nothing happened; the court did not seize the occasion to fully investigate although it had previously conducted a full-blown investigation of corruption in the lower courts (the “Ma’am Arlene” investigation). This omission and the disparate handling led to comments and speculations that the court wanted to shield Supreme Court justices from the focus that an investigation would bring; an investigation could also draw attention to rulings that, from the point of law, are far from commendable and should not therefore be highlighted.
Given all these, I believe that the court should consider the President’s expressed thoughts on corruption as a continuously ringing alarm bell, reminding the whole Judiciary to stick to the ethical high road and to the rule of law in its rulings. Undeserved accommodations and devious manipulations cannot really be hidden by motherhood statements and strained legal interpretations. The Court must simply identify itself with the rule of law to strengthen the citizenry’s trust in the Judiciary. Goodbye, Bruno! Bruno passed away last week after an extended illness. I find it worthwhile to mention him in this column as he was a fellow worker who had toiled shoulder to shoulder with me in the vineyard of the law.
He was a workmate who shared long evenings with me as I prepared my decisions, concurrences, dissents, my first book, and even my initial articles in this column. He shared my Supreme Court office, from where he graciously received visiting justices and guests, and frolicked with my office staff.
He likewise shared with me the pages of Benchmark (the Supreme Court monthly publication) and of my coming book – A Judicial Journey. It would not be amiss to say that he was a very reliable companion in that journey.
Rest in peace, dear friend. Thank you for all the joys and happy moments you brought us. And do not forget to cart away all the future stresses that would threaten us, your family and friends, in the way that you relieved us of pains and stresses in the past.
On this occasion, let me also thank my former law practice client, former Prudential Bank president Ochie Santos, who graciously allowed my family, our friends, court colleagues, Bruja (Bruno’s partner) and me, to enjoy Bruno, that adorable and incomparable Beagle!