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MANILA, Philippines — The granting of interim relief for fugitive Sen. Ronald "Bato" dela Rosa may set dangerous precedents by effectively providing him with "temporary immunity from arrest."
In a separate concurring opinion, Senior Associate Justice Marvic Leonen affirmed the Supreme Court’s decision to deny Dela Rosa’s bid for a temporary restraining order (TRO) and a status quo ante order (SQAO).
Dela Rosa, who is facing a publicized warrant of arrest from the International Criminal Court (ICC), had sought these measures to halt law enforcement efforts, a request Leonen described as essentially a prayer for temporary immunity from arrest.
“This incident, occasioned by petitioner's manifestations and motions, is principally a prayer to this Court to halt law enforcement through a temporary restraining order, a writ of preliminary injunction, or a status quo ante order. In effect, it seeks temporary immunity from arrest,” Leonen said.
Leonen warned that enjoining law enforcement in these circumstances would establish a “dangerous precedent.”
He explained that, as a general rule, Philippine courts do not issue injunctions to restrain criminal prosecutions or arrests before they occur, as the legality of state action is typically tested after it is invoked.
“Whether the contested warrant and its attempted enforcement are regular is precisely what a future proceeding must determine,” Leonen said.
Regarding the request for a status quo ante order, Leonen explained that the relief is intended to preserve the last peaceable and uncontested state of things before a controversy arises.
He noted that the senator’s previous state was that of an ordinary citizen subject to the operation of law, rather than someone possessing immunity from legal processes.
“To enjoin all arrests would not restore that prior state; it would manufacture a new one. Issuing a status quo ante order would create a zone of immunity that did not exist before. It would, again, prejudge the reserved questions in the applicant's favor,” Leonen said.
While Leonen acknowledged that the rights to liberty and security are firmly established in the “constitutional order,” he maintained that Dela Rosa failed to show a material and substantial invasion of these rights.
Instead, the petition presented only a contingent and anticipated invasion, which does not justify an extraordinary provisional writ.
“An injunctive writ does not issue to restrain an act whose unlawfulness has yet to be established and is, in truth, the contested heart of the main case,” Leonen said.
“To enjoin the threatened enforcement now would be to assume the very propositions petitioner is bound to prove, to dispose of the main case without trial, and to reverse the burden of proof,” he added.
The Justice pointed out that a plain, speedy and adequate remedy already exists in the form of a petition for habeas corpus, which is appropriate for testing the legality of restraint once a person is actually detained.
No equity for the ‘voiceless dead’
Leonen addressed the equitable considerations of the request of Dela Rosa. He stated that equity in the constitutional order must balance the interests of the applicant with the social justice and human rights commitments of the state.
He said that Dela Rosa, having occupied the apex of an institution bound to protect life, is central to the program from which many deaths arose.
“Equity cannot he invoked to suspend the operation of law against him without asking what equity owes those whose deaths the same institution caused or failed to prevent,” Leonen said.
“The ‘voiceless dead’ are not a rhetorical flourish. They are a constituency whose absence and coerced silence themselves are, in my view, constitutionally significant,” he added.
Legal options should not stop Bato from surrendering
Leonen stated that Dela Rosa will have access to judicial remedies such as the writ of habeas corpus if he is arrested, which would provide a proper forum for the parties to fully debate complex issues regarding jurisdiction, the interpretation of Republic Act No. 9851, and the Philippines' obligations to the ICC.
He added that these legal options should not prevent the senator from voluntarily surrendering to his former peers in the police force.
“Such an act of courage and leadership-the demonstration of which may be looked for from a sitting Senator of the Republic, who hails from a background of having served as a Chief of the Philippine National Police-ultimately expresses that he trusts our legal and judicial system, and is not exclusive of his assertions of his weighty legal questions,” Leonen said.
Leonen is one of the nine Supreme Court justices who voted to deny Dela Rosa’s plea for interim relief concerning the government’s cooperation with the ICC.
Five of the justices, on the other hand, voted to grant his petition. One is on leave.
Dela Rosa, who was the architect of the operation that led to the deaths of thousands during the drug war, has been hiding amid an ICC warrant against him.
He is accused of being liable for crimes against humanity of murder over the alleged killings of at least 32 people, committed between July 2016 and April 2018, under the administration of then president Rodrigo Duterte.
