IN the beginning, Chief Justice Ma. Lourdes Sereno looked like a scared rabbit. Now she looks even more scared. Ever since President Rodrigo Duterte took his oath of office on June 30, 2016 before Associate Supreme Court Justice Bienvenido Reyes instead of the Chief Justice, the lady jurist must have spent sleepless nights wondering when the sword of Damocles would drop on her head. She openly backed the wrong horse in the last election; her recent clash with DU30 on his narcotics war has apparently made her situation worse.
A dreadful precedent has been set. In 2010, BS Aquino 3rd chose Associate Justice (now Ombudsman) Conchita Carpio Morales, instead of Chief Justice Renato Corona, to swear him in as President. Then he bribed the members of Congress a year later to impeach and remove Corona from office. In an apparent flight of whimsy, Aquino junked the seniority rule among the Justices and named Sereno in his place, a total newcomer on the Court with a non-existent record or reputation as a sage. Since before the election, many noticed her fearing she could lose her job in the same manner the late CJ Corona had lost his.
During the SC hearings on our petitions (mine and three others) for the disqualification of Sen. Mary Grace Poe Llamanzares as a presidential candidate, on the ground of lack of natural-born citizenship and 10-year residence, Sereno was reported to have loudly suspected that her best chances lay with Poe—not with DU30, Vice President Jojo Binay, or Mar Roxas. So she ended arguing Poe’s case as though she were part of her legal panel, and she voted with eight other Justices to annul the constitutional authority of the Commission on Elections to disqualify Poe, arguing that the question on her citizenship was best decided by the Presidential Electoral Tribunal after the elections, which she appeared confident Poe would win.
One of the dissenting justices labelled this ruling penned by Associate Justice Jose Perez as a violation of the Constitution, and it was widely lampooned in legal circles. It was a first-grade embarrassment. It became an even bigger embarrassment when Poe’s previously favored candidacy collapsed at the polls. The justices who had ruled that Poe could run despite her not being a natural-born citizen were left holding an empty bag.
Upon Poe’s defeat, Sereno had ample reason to detect a coming storm.
DU30 did not treat Sereno as Aquino had treated Corona prior to his impeachment, though. He genially acknowledged her presence at his inaugural in Malacañang and during his State of the Nation Address at the Batasan. But his cold civility quickly vanished this week after he ordered some judges allegedly coddling illegal drug dealers to surrender to the police, and Sereno called on them to do so only if they had been charged with specific crimes and their arrest had been ordered by the court.
Archbishop Soc, then De Lima, now Sereno
She was simply quoting the Bill of Rights, Section 1 of which provides, “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the law.” She became the second high government official, the second woman in fact, after neophyte Sen. Leila de Lima, to show open defiance to the manner DU30 was conducting his anti-narcotics war. The only other person of high standing to speaking openly against the methods employed in the anti-drugs war has been Archbishop Socrates Villegas of Lingayen-Dagupan, president of the Catholic Bishops’ Conference of the Philippines.
But where De Lima denounced the extrajudicial killing of drug suspects by the police and unidentified vigilantes, Sereno merely reminded the judges of due process. Nevertheless, where De Lima merely received a quick riposte from her immediate successor, Justice Secretary Vitaliano Aguirre 2nd, who said she herself was being investigated for alleged links to drug lords when she was the justice secretary, DU30 himself scolded Sereno. To him, the CJ’s statement must have been lese majeste; he went ballistic. He accused Sereno of precipitating a constitutional crisis.
Who’s causing the crisis?
“There is a slaughter every day,” he said, “and you are just interested in the warrant of arrest?” According to the President, there are 600,000 drug addicts, and people would continue getting killed unless his methods were used. He warned that if Sereno insisted on her position, he would “order everybody in the executive department not to honor you…Would you rather that I declare martial law?” I have deleted the expletives from his statement.
Under Sec. 2 of the Bill of Rights, “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath, or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”
So Sereno was not inventing a political theory just to get in the crosshairs of DU30.
Although DU30 was right about the time it takes to secure warrants of arrest, the Constitution does not allow a mere order from the President or the police to replace due process. Malacañang hastened to assure the public that the question DU30 posed about “declaring Martial Law” was purely rhetorical (made to produce an effect rather than to elicit an answer) and should not be taken literally.
But even if there was an actual “invasion or rebellion” and public safety required DU30 to proclaim Martial Law, it would not suspend the operation of the Constitution and the requirement of due process. Were the privilege of the writ of habeas corpus suspended and the military and the police went around arresting people without warrant, those arrested or detained would have to be released unless they were judicially charged in three days.
Sereno clams up
The President’s outburst has compelled Sereno to “clam up,” said the press. In an obvious effort to stay on DU30’s good side, the High Court announced its own investigation of the judges on his hit list. Retired Justice Roberto Abad was asked to do the job. This is an executive function which the SC, as a trier of law rather than of facts, has now decided to exercise, apparently to prevent any souring of relations with the President, and possibly stay any punitive move against the Chief Justice.
But it does not settle the Bill of Rights issue she had raised, which she now appears to have interred, for the sake of career safety, inside the tomb of missed opportunities. Many thought that in taking up the issue of “no arrest without warrant,” Sereno had found the courage to perform a signal service to the Constitution and the rule of law, which only Archbishop Villegas and Senator De Lima had seemed willing to do before her. Many were prepared to gloss over the fact that she tried to limit her intervention to the case of the four to seven judges only, instead of speaking for all who deserve to be protected by the same due process. But she has apparently decided not to persist.
Will others stand up?
In this nation of lawyers, how many justices, judges, law deans, law professors, law practitioners, students of law and plain laymen will now stand up where she has decided to beg off? The Bill of Rights is the cornerstone of our Constitution; it precedes our constitutional history by nearly 800 years.
This political document began at Runnymede, England on June 15, 1215 when King John signed the Magna Carta (the Great Charter) which proclaimed that “everybody, including the King, was subject to the law.”
The 39th of its 63 clauses guaranteed “the right of free men to justice and a fair trial.” In 1791, the Bill of Rights found its way into the US Constitution through James Madison; then into the Universal Declaration of Human Rights (1948), then into the European Convention of Human Rights (1950), and the Constitutions of many nations, including our own.
The Bill of Rights as a checklist
Aside from the two sections previously quoted, the Bill of Rights provides for the following, among others:
Sec. 12 (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means, which vitiate the free will, shall be used against him. Secret detention places, solitary, incommunicado, or
other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Sec. 17 hereof shall be
inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section, as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.
Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.
Sec. 14. (1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and production of evidence in his behalf. However, after arraignment, trial may proceed, notwithstanding the absence of the accused, provided that he has been duly notified and his failure to appear is unjustifiable.
Sec. 17. No person shall be compelled to be a witness against himself.
Sec. 19. (1)Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua.
(2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law.
These provisions provide a valuable checklist in judging DU30’s war on drugs. One does not have to be a lawyer to do this. And the President should be the first one to know that we are not trying to promote criminal slaughter or instigate a constitutional crisis by pointing out where due process is not being observed. We are simply trying to prevent it.