Earlier this month, President Rodrigo Duterte and Supreme Court Chief Justice Maria Lourdes Sereno found themselves in a verbal tussle which, happily, appears to have finally dissipated after the President himself prevented the incident from escalating into something ugly and embarrassing.
The “not so friendly” banter between the heads of the executive and judicial departments of the government began after President Duterte publicly identified seven judges allegedly involved in the narcotics trade, and demanded that they surrender to the authorities or accept the dire consequences of their defiance.
President Duterte’s move was part of his ongoing campaign to fight the drug menace in the country. Earlier, the President revealed to the news media a list of elected officials involved in the illegal drug trade.
On August 8, Chief Justice Sereno wrote to President Duterte to inform him that the judges concerned should not be compelled to surrender without any warrant issued for their arrest. There being no warrants issued by any court, the Chief Justice scored the President for his bold move. She also said that the list containing the names of the judges was prematurely revealed to the public.
The next day, an obviously outraged Duterte hit back at the Chief Justice in a public speech in Cagayan de Oro City broadcast on television. After citing the slow pace of justice in the country, Duterte asked the chief justice if resort to martial law is a more acceptable option to solve the national drug problem. He also said that if the Chief Justice got in his way, he would order the executive department not to accord any respect for the judicial department.
When his anger and disappointment subsided, President Duterte made a public apology for his emotional outburst. After that, all was quiet on both sides of the controversy.
Political observers say that both the President and the Chief Justice have their share of shortcomings in this incident.
The principle of separation of powers provides, in theory at least, that the judicial department must refrain from conduct that may be construed as intrusion into the exclusive realm of another branch of government —in this instance, the executive department which is headed by the president. Like a double-bladed sword, the principle cuts both ways—the executive department is, in turn, expected to observe concommitant restraint from intruding in concerns which exclusively belong to the judicial department.
Such restraint is not without good reason. When a judicial officer publicizes his view on an existing legal controversy, he may find himself disabled by public opinion from passing judgment on that issue in the event it is brought to him for adjudication as a magistrate. The reason—his earlier public comments suggest, correctly or otherwise, that he has pre-judged the dispute. That is not good for a system where the cold neutrality of a judge helps make court rulings acceptable to litigants. With greater reason, that observation holds true for the justices of the Supreme Court, as the tribunal of last resort.
Should the issue regarding the judges identified by the President reach the Supreme Court, it is very likely that the President’s camp will ask Chief Justice Sereno to inhibit herself from participating in the adjudication of that issue precisely because she already made a public announcement that has all the indications of pre-judgment. That will be unfortunate because her vote is one vote removed, and in a tight contest among the legal minds in a collegial court, one vote can spell the difference between victory and defeat.
Jurisprudence posits that the Supreme Court does not render advisory opinions, or views which do not arise from an actual case pending in its dockets. Observers maintain that if the Supreme Court does not render advisory opinions, it should not dish out unsolicited advisories, either.
At any rate, the judges identified by President Duterte are not exactly devoid of legal remedies. Being learned in the law, the judges can very well take care of themselves without any overtures from the chief justice. Any one among them who refuses to surrender without a warrant for his arrest can always argue his case, unless the judge himself has lost faith in the judicial system.
In addition, there is a trial court judges association which can carry the cudgels for their beleaguered colleagues, also without help from higher officials in the judicial hierarchy.
It is understandable for President Duterte to get upset at what he considered an obstacle to his crusade against prohibited drugs. Nonetheless, to suggest that the executive department ought to hold the judiciary in sweeping contempt is unsettling. After all, a government that openly disobeys the courts encourages public contempt for the judicial system. Inevitably, this will lead to lawlessness and, ultimately, the collapse of government itself.
On the other hand, the President’s remark about martial law must be evaluated realistically. Far from being a threat to institutionalize dictatorship in the country, the president’s outburst was obviously prompted by his frustration in the slow justice system, a sentiment which, truth to tell, is shared by many.
Unlike martial law under previous Philippine charters, martial law under the present Constitution is hardly a blueprint for dictatorhip. The present charter explicitly provides that the proclamation of martial law is subject to scrutiny by Congress, and review by the Supreme Court. In view of such restraints, it is doubtful if martial law can be deemed synonymous to dictatorship.
From an optimistic perspective, the brief but sharp disagreement between President Duterte and Chief Justice Sereno should not be seen as a threat to the constitutional order, or a step towards a constitutional crisis. It only underscores that under the principle of separation of powers, conflicts among the three branches of government necessarily will occasionally arise, and those conflicts are indicators that the constitutional government, despite all its shortcomings, is alive and kicking.
