That has become an unlikeable phrase—almost synonymous with corruption and judicial excess. And things did not get any better when President Digong, in his trademark colorful, bellicose and expletive-punctuated language, warned judges against improvidently issuing TROs against government infrastructure projects. He had reason to be dour. Hireling attorneys of mega construction corporations have been using the device to block the prosecution of government projects that their powerful clients did not win! For sure, TROs can be abused—as can anything good that God created, including the human tongue!
In fact, the temporary restraining order is a refinement of the legal system that provides even the humblest of citizens succor against the ponderous hand of the state or the insidious schemes of foes. When a court, no matter that it may sit in some ramshackle building, is able to issue an order that effectively halts an impending government act—no matter its lofty post in the hierarchy of State—that says a lot about the rule of law and highlights the supreme principle of constitutionalism: Ours is a government of laws and not of men (and women)! When the demolition crew of a megalithic business corporation is positioned to reduce to smithereens the hovel of a frightened family, the TRO is the most eloquent assertion of the equality of all before the law. It is what makes the charming promise that “those who have less in life must have more in law” a reality. The temporary restraining order is what maintains the necessary distinction between fact and validity. It prevents “what is” from overpowering “what ought to be.”
That it can be issued ex party (at the instance of the applicant) signals the availability of the law’s reliefs to all, as well as the urgency of the circumstances that require that it issue. But that, in courts of general jurisdiction, the court must conduct a summary hearing within a 72-hour period to determine whether the restraint should be in place for the full, allowable length of 20 days, bespeaks of the circumspection that the law requires and the fairness that is inscribed in the rules.
It does not become a high official of the land therefore to warn judges against issuing TROs, and to threaten with defiance of the orders of course. The government is the prime educator of the people, and it cannot, in the name of all that our history has struggled for and of all that it holds noble and lofty, encourage and abet transgression of the lawful orders of courts. Neither can it cultivate in the citizens the dangerous heresy that it is for them to judge what is lawful and what is not.
The stakes are high, but the judges themselves must keep the institutions of law sacrosanct. Spite and defiance become attractive propositions when the law’s protective institutions are prostituted by the monied, the powerful and the highly placed. But the Bench is no place for wimps, and when, under the rules, a temporary restraining order should issue, then it must issue, whoever it is who may grind and gnash his teeth. The gavel may be no match to the arsenal that is at the disposal of the Executive, but it is what prevents power from being self-legitimizing, from might being the terrible equivalent of right!