THOSE who insist that the intervention of a Philippine court is necessary for the unsealed warrant of arrest issued by the International Criminal Court to be served on Mr. Bato de la Rosa — aside from being mistaken, in my view and in the view of others who know international law — apparently miss the point that he has already had his recourse to a Philippine court. When an attempt was made by agents of the National Bureau of Investigation to serve the warrant on him, he scurried up the backstairs of the Senate building to evade them, while his lawyers dashed off to the Supreme Court, praying for a temporary restraining order that would have kept arresting teams at bay and stalled the service of the warrant of arrest.
Significantly, though indicating that it was not closing the door completely to the possible grant of injunctive relief, the Supreme Court did not issue any TRO. To those who know how this procedure works, that is significant. A temporary restraining order is a court’s response to an urgent situation. It is granted when it is clear to the court that there is an actual right (technically called “a right in esse”) that is in danger of being transgressed. So, when the court does not issue one, despite the claim of urgency and the repeated filing of “urgent manifestations,” that says a lot: The court does not recognize any right that is threatened by adverse action!
In the 2019 case of Tong Bi v. Philippine Health Insurance Corporation, the court reiterated the well-established rule on temporary restraining orders:
“As correctly ruled by the Court of Appeals, essential for the grant of the injunctive relief is the existence of an urgent necessity to prevent serious damage. A TRO is issued only if the matter is of such extreme urgency that grave injustice and irreparable injury will arise unless it is issued immediately. Parenthetically, the burden is on the petitioner to show in the application that there is meritorious ground for the issuance of the TRO in its favor. In this case, we are one with the Court of Appeals in finding that the petitioner failed to discharge such burden.”
Shortly after it was announced that the Supreme Court did not issue a TRO but instead had ordered the public respondents — the government — to comment on the petition (to which the court had not yet even given due course!), I posted on my Facebook wall that the court speaks both by what it says or does and in what it declines to do. That it did not issue the TRO prayed for can only mean that it did not find any “grave injustice” or “irreparable injury” that would arise unless it were granted.
By turning to the Supreme Court and raising precisely the issue of the validity of the ICC warrant of arrest, Bato has had his day before a Philippine court, and considering that there is no subsisting injunctive order, he may be arrested. It is only deference to the Supreme Court that has yet to rule conclusively on the matter (it has not even conclusively ruled on the Duterte petitions filed at the time of his own arrest!) that keeps the NBI from conducting the arrest that it would very well be legally warranted to effect.
What is profoundly distressing, however, is the moral issue of the use of State power — in this case, the powers of the Senate — to shield a person who is called to answer for the deaths of hundreds, perhaps thousands. It is the terrible specter of the mighty wielding the resources of power to insulate one of their own from the accountability that justice demands. When a boastful Bato who had dared former senator Sonny Trillanes to arrest and cuff him pleaded with his colleagues for succor, the Senate, presided over — regrettably — by Alan Peter Cayetano immediately granted “protective custody,” a fiction of law — in fact a legal anomaly — conjured instantly at the earnest request of an embattled Bato. To his credit, NBI Director Melvin Matibag contributed to the diffusion of the tension by agreeing not to pursue Bato within Senate premises that, legally, he could have done. But when one listens to Joel Butuyan and Gilbert Andres (assisted by Kristina Conti) tell us about the bloody trail the Duterte administration left behind — bullet-riddled bodies of adults and even of children — then what we have is the raw use of political clout in order to evade moral responsibility. This is what makes the whole rigmarole morally distressing. The Catholic Bishops Conference of the Philippines and others, including Archbishop Socrates Villegas, have spoken in behalf of the Catholic Church — and they have, in concert, called for accountability and the rendering of rights, including the vindication of those so pitifully violated when Duterte and Bato held the power of life and death over so many Filipinos. Archbishop Soc’s language was strong but necessary: “The height of Satanic lying and murder of truth just keeps getting higher. Instead of defending themselves, the accused hide behind legalese and procedural delay. The truth is glaring and unassailable.” That is the statement of our nation’s moral bankruptcy.
As troubling is the fact that a malevolent spell has apparently been cast on a significant portion of the population that has become almost irrational in its allegiance to one family and its fealty to a strong man — the palpable evidence of criminality and wrongdoing notwithstanding. It is the complete breakdown of the fundamental distinction between right and wrong, the utter collapse of any moral sense. And that can never augur well for any nation.
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
