After President Duterte named several judges in his list of government officials or employees involved allegedly in the illegal drugs trade, Chief Justice Maria Lourdes Sereno wrote him a four-page letter detailing “some observations” about his accusations and airing some concerns about his very public tack. (The letter was almost immediately made public.) But the letter also emphasized that the judiciary shared the administration’s alarm over the drug problem, and prayed for the administration’s success. In response, the one person entrusted by the Constitution with commander-in-chief powers issued a startling threat. “Would you rather that I will declare martial law?” President Duterte apostrophized.
To appreciate just how disproportionate, and problematic, Mr. Duterte’s response is, it is only necessary to stipulate the following undisputed facts:
One, the President included seven judges in his so-called “narco-list,” out of over 150 names.
Two, the Chief Justice observed that there were errors in the naming of the judges. One had already been dismissed (in 2007), one had been assassinated (in 2008), a third had just retired, and three (plus the one just retired) generally did “not have jurisdiction over drugs cases.”
Three, Sereno noted that, in sharing the public “consensus” on the dangers posed by drugs, the Supreme Court also abhorred the drug trade’s “ability to even destroy public institutions.” She also said, pointedly: “We are currently investigating a report on a judge who may be so involved. He is not on the … list.”
Four, Sereno argued, in the most diplomatic terms, that the President’s tack had an adverse impact on the work of the judiciary as an institution: “A premature announcement of an informal investigation on allegations of involvement with the drug trade will have the unwarranted effect of rendering the judge veritably useless in discharging his adjudicative role. Thus this Court has been careful, all too aware that more often than not, a good reputation is the primary badge of credibility and the only legacy that many of our judges can leave behind.”
Five, she gave the following advice to the judges named: “To safeguard the role of the judges as the protector of constitutional rights, I would caution them very strongly against ‘surrendering’ or making themselves physically accountable to any police officer in the absence of any duly-issued warrant of arrest that is pending.”
Six, she ended with a plea for context: “Mr. President, the judiciary shares with you and the Filipino people a common desire to see a country that is rid of drugs, in the same manner that you share with the judiciary and the Filipino people a common desire to see a country that is governed by the rule of law.”
Altogether, this was an elegantly worded response to the President’s listing of the judges, based on a sure sense of institutional dignity (the judiciary as the protector of constitutional rights), on a firm grasp of reality (the Court is aware of the problem, and is currently investigating a judge who is reportedly involved), and on an unshakeable faith in the role of the rule of law.
But, Fact No. 7: Mr. Duterte saw Sereno’s letter as a form of obstructionism. Addressing her, he said, in a mix of Filipino and English: “You are the kingpin of the judiciary.” (A sexist metaphor from organized crime, but let’s let that slide.) “I’m the President. I have a job to do; this is not your job. No judges patrol the streets. None of your sheriffs make arrests. That is my heavy burden, which I inherited [from previous administrations], including the one that appointed you. Please, don’t even … I’m not a fool. If this continues, that you’ll stop me, then, all right. Anything goes. Or would you rather that I will declare martial law?”
Aside from the obvious, that the Constitution allows the President to declare martial law only in cases of invasion or rebellion, Mr. Duterte is demonstrating an inability to accept criticism if he perceives it to be directed at himself. It is all right, as he has himself said, for the public to gather en masse to protest his decision to bury the remains of the dictator Ferdinand Marcos in the Libingan ng mga Bayani; the criticism is aimed at an unrepentant Marcos family. But let the country’s top judge issue a diplomatic rejoinder reminding him of the rule of law, and suddenly he’s talking martial law.
In debates, that’s called losing the argument.