Column: The President as lawyer

Published on August 16, 2016.

IT HAS been some time—30 years, in fact, or an entire generation—since a lawyer served as president of the Philippines. Before San Beda graduate and city prosecutor Rodrigo Roa Duterte, there was UP graduate and bar topnotcher Ferdinand Edralin Marcos. That time did not end well.

What can we expect from another lawyer in Malacañang? President Duterte has used two constitutionally mandated ceremonies to speak directly to this question; he has also spent some time in his ongoing series of visits to military camps to say something about what we can call his philosophy of law. Believing, as I have written before, that in the democratic project the law is too important to be left to lawyers alone, I would like to put in my two centavos’ worth. (We all should.)

Before 1986, when the Marcoses were chased out of the presidential palace, almost all the presidents were lawyers. There were only two exceptions: Emilio Aguinaldo, the generalissimo who led the successful Philippine Revolution at the turn of the 20th century, and Ramon Magsaysay, the defense secretary who broke the back of the Huk insurgency in the 1950s. All the others were lawyers, and from the start promising ones: Manuel Quezon, Sergio Osmeña, Manuel Roxas, Elpidio Quirino, Carlos Garcia, Diosdado Macapagal, and Marcos were all bar topnotchers, a meaningless distinction in other countries but in the Philippines a definite political advantage. Even Jose Laurel, the president of the Second Republic under the Japanese, was also a topnotcher and a heavyweight lawyer.

In the first 50-odd years of Philippine self-government, then, lawyers served as president for 45.

In his well-received, well-crafted inaugural address, the lawyer-president who will serve for the next six years issued the following categorical declaration: “My adherence to due process and the rule of law is uncompromising.”

This was an encouraging sign, from someone who admitted that “there are those who do not approve of my methods of fighting criminality.” But immediately before he made the declaration, Mr. Duterte also said: “As a lawyer and a former prosecutor, I know the limits of the power and authority of the president. I know what is legal and what is not.”

This should be welcome and noncontroversial—but even nonlawyers know that lawsuits have lawyers on either side who “know what is legal and what is not.” Hundreds of lawyer-legislators over two decades knew, for a certainty, that the pork barrel was legal, until the Supreme Court changed its mind and ruled otherwise. Knowledge of the law, then, is not enough. It must be prepared to deal with the possibility that there may be another, perhaps superior, interpretation. “I know what is legal and what is not” cannot be used to end the discussion, or to prevent all criticism.

Case in point: In his first State of the Nation Address, President Duterte acknowledged the role of human rights in governance: “Human rights must work to uplift human dignity.” Then he added, controversially: “But human rights cannot be used as a shield or an excuse to destroy the country—your country and my country.” This is what American and British political commentators might call a dog whistle; the general population might warm to this passage as a rally-round-the-flag restatement of principle, about saving the country. A specific audience consisting of government agents and perhaps the contract hires they work with might hear it as encouragement to continue doing what they’re doing in spite of complaints about human rights abuses.

When the opportunity presents itself, this legal understanding of the President’s about the use of human rights as shield or excuse must be subjected to legal or political tests. And—the point I wish to make—the fact that it is the President’s understanding does not make it immune to these legal or political challenges.

In one of his camp visits, the President responded to Chief Justice Maria Lourdes Sereno’s well-tempered reply to the naming of seven judges among officials linked to the illegal drugs trade with an intemperate outburst. He has since apologized, and I for one do not doubt that the apology was sincere. But his initial response is still worth thinking over, because it might say something about his philosophy of law.

He said, in a mix of Filipino and English: “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 …. If this continues, that you’ll stop me, then, all right. Anything goes. Or would you rather that I will declare martial law?”

All lawyers should welcome the fact that “no judges patrol the streets” as one of the glories of the separation of powers; it is not a defect. It is true that the executive branch carries a heavy burden, but so do the other branches of government. (I’m happy to note that the proposed budget increases the judiciary’s budget substantially.) But under the post-Marcos Constitution, both the Supreme Court and Congress have defined roles to play in the event of the declaration of martial law; lawless violence, the only possible justification to declare martial law on account of an illegal drugs crisis, is in the 1935, but not in the 1987, Constitution. So why use martial law as a threat?

Marcos subverted the democratic project when he engineered a dictatorship through military rule—but he made sure to cloak it with legal authority. Indeed, he called it “constitutional authoritarianism,” the kind of construct that would appeal to lawyers who prize efficiency above democracy.

It is important to ask: Is this the kind of lawyer President Duterte is turning out to be?

* * *

Tonight, on INQ&A, our guest is Sen. Richard Gordon. Please tune in to Radyo Inquirer 990 at 8 p.m., or follow us on Facebook Live and on Inquirer.net.

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