TRO and the Cybercrime Prevention Act

THERE has been much media coverage on the Temporary Restraining Order (TRO) that the Supreme Court issued against the Cybercrime Prevention Act or Republic Act 10175.

A good question to ask then is: when may a court issue a TRO?
Under the Rules of Court, there are several forms of TROs, of differing periods, which a Court may issue. One is a twenty day TRO which may be issued by a court when “great or irreparable injury would result to the applicant [for the injunction] before the matter can be heard on notice.”

Another form of TRO is one which a Judge may issues if the matter is “of extreme urgency and the applicant will suffer grave injustice and irreparable injury,” then “the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex-parte a temporary restraining order effective for only seventy-two (72) hours from issuance.”

In the case of the Court of Appeals, it may issue a TRO effective for 60 days.

For the Supreme Court, since it is the highest Court of the land, it can issue a TRO, which can be effective for a much longer period of time, such as the 120 day TRO it issued against the Cybercrime Law.

The requirement for any TRO is urgency and irreparable injury. Urgency is self-explanatory. For irreparable injury, the Philippine Supreme Court has explained that “[a]n injury is considered irreparable if it is of such constant and frequent recurrence that no fair and reasonable redress can be had therefore in a court of law, or where there is no standard by which their amount can be measured with reasonable accuracy, that is, it is not susceptible of mathematical computation.”

(Philippine Airlines v NLRC, G.R. No. 120567, March 20, 1998.) Whether or not the Supreme Court has found sufficient urgency and sufficient possibility of irreparable injury with the Cybercrime Law, I leave to your own conclusions in light of the fact that 14 Justices of the Supreme Court unanimously voted in favor of issuing the TRO.

It must be noted that the Supreme Court has explained that “a temporary restraining order is generally granted without notice to the opposite party, and is intended only as a restraint on him until the propriety of granting a temporary injunction can be determined, and it goes no further than to preserve the status quo until that determination.” (Villanueva v. Court of Appeals, G.R. No. 117661. July 15, 1996).

A TRO “is but a preventive remedy whose only mission is to prevent threatened wrong, further injury, and irreparable harm or injustice until the rights of the parties can be settled. Judges should thus look at such relief only as a means to protect the ability of their courts to render a meaningful decision. Foremost in their minds should be to guard against a change of circumstances that will hamper or prevent the granting of proper reliefs after a trial on the merits.” (Nerwin Industries v. PNOC-Energy Development Corporation, G.R. No. 167057. April 11, 2012, citations omitted).

In other words, a TRO’s function is to preserve the status quo. It would seem then that the Supreme Court’s purpose in recently issuing the TRO was precisely to preserve the status quo prior to the enactment of the Cybercrime Prevention Act.

Though the issuance of the TRO is not necessarily an indication that the
Cybercrime Prevention Act will be declared unconstitutional, it does give the public an indication of what the Supreme Court is currently thinking about the law.

Nevertheless, it remains to be seen whether or not the Supreme Court will declare the law unconstitutional after oral arguments scheduled on 15
January 2013.
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Lawyer Kelvin Lee is a Partner of the San Juan Tayag Lee & Verga Law Offices. He is legal counsel of the Philippine Internet Freedom Alliance (PIFA), one of the petitioners against the Cybercrime Prevention Act. However, the opinions expressed herein are his own. You can reach Kelvin at kelvinlesterlee@gmail.com