Why Calida’s motion insults the Court

Last week, Solicitor General Jose Calida filed an urgent motion with the Supreme Court, to ask it to cancel oral arguments in the Anti-Terrorism Act case. He argued that the “logistical restrictions and health threats” posed by the continuing rise in the number of COVID-19 cases in the country rendered in-person oral arguments “unsafe and impractical,” and even suggested that they may violate the pandemic-related ban on mass gatherings.

At first glance, this seems like a reasonable proposal, but a closer study of the argument should make the truth clear: This petition is not only untenable; its very existence is an implied insult to the Court itself.

First things first. Will “in-court oral arguments,” which would require the presence of many lawyers and the petitioners they represent in the Supreme Court’s en banc session hall, “violate the prohibition against mass gathering”? Not according to the IATF’s own language: Under a general community quarantine (which may still be in effect in late September, when the oral arguments are scheduled) or a modified enhanced community quarantine, “[g]atherings that are for the provision of critical government services and authorized humanitarian activities while adhering to the prescribed minimum health standards shall be allowed.”

It would be the height of irony for the government’s chief lawyer to argue that a Supreme Court hearing does not qualify as a critical government service. The only real question, then, is: What are the prescribed minimum health standards?

Calida does a disservice to the Court by describing the maximum, that is, the worst possible scenario: “The conduct of in-court oral arguments would necessarily entail the presence of the Chief Justice and the Associate Justices, at least 300 petitioners and their respective counsels, an estimate of 16 lawyers from the Office of the Solicitor General and their respective support staff, representatives from the respondents, and the members of the Office of the Clerk of Court.” In just such a scenario, perhaps it would be difficult to observe the prescribed minimum health standards, starting with physical distancing. (Disclosure: I am one of those petitioners, having signed the petition led by journalist Ceres Doyo against Executive Secretary Salvador Medialdea et al.)

But as the judiciary has already proven in the ongoing pandemic, the courts can innovate, revising the rules on procedural justice to meet the needs of substantive justice during the health emergency. Nothing prevents the Supreme Court from imposing a more reasonable limit on the number of petitioners, counsel, and staff allowed into the session hall. And nothing prevents it from using a hybrid arrangement, allowing some petitioners, counsel, and staff to enter the session hall and allowing others to take part through teleconferencing platforms.

In truth, nothing prevents the Court from mandating a fully digital setting for the oral arguments. If Calida’s reasons were genuine, he could have simply moved for the same thing. But not only did he not argue for virtual oral arguments; he argued against them. First, he noted that participants would still need to gather in one place. “For the OSG alone, this means that at least 25 individuals, including the Solicitor General, at least 7 Assistant Solicitors General, at least 8 solicitors and at least 8 administrative/support staff, and at least 4 I.T. personnel, would have to gather in a limited space during the entire proceeding.” And second, he suggested that the virtual proceedings would be interrupted frequently, because of the “sheer number of parties and counsels and the uneven quality of local internet service.”

But Calida is addressing a Court that has vigorously promoted virtual hearings in the country’s courts soon after the pandemic-induced lockdown began. The Court administrator issued a circular on Aug. 14, for instance, authorizing more courts to conduct “videoconferencing hearings,” noting that between May 4 and Aug. 7, “some 47,676 videoconferencing hearings have been conducted by the authorized courts, with a success rate of 85 percent.”

The same Court, in a circular dated Aug. 18, ordered all courts under GCQ to be “physically opened,” but at the same time allowed virtual hearings if needed. As for its own conduct, it announced that “The Court en banc and the Court’s three (3) Divisions shall hold their sessions in-court, except under exceptional circumstances where sessions may be conducted through videoconferencing …”

Not least, the Court has met in face-to-face en banc sessions during the pandemic, having installed the appropriate protective measures (such as acrylic panels). Is Calida, by pointing to his office as an example, suggesting that when the Court met en banc they violated the ban?

But absurd as this example is, it is not what turns his argument into an insult. It is his underlying assumption that the Office of the Solicitor General, by one theory the tribune of the people, cannot do anything else except float on the tide of the pandemic. His alternative is simply the exchange of more pleadings or, worse, the justices reducing their questions to writing. Such indolence.

I, like others, have my disagreements with certain Court rulings, but it is clear to me that the justices at least have been working hard during the pandemic to meet some of the changed requirements of justice. Surely the self-proclaimed 16th justice of the Supreme Court cannot do less. He can, for a start, outfit enough rooms in the OSG to meet international teleconferencing standards. Ensure better internet connection. Install acrylic panels and other protective measures. Given the lack of progress in containing the pandemic, he should prepare, not for one hybrid or virtual oral argument, but a whole future full of them.

On Twitter: @jnery_newsstand, email: [email protected]