Part 2. The Morbid Symptoms
(This is the second part of “Interregnum, Calling, and Resurrection: What is at stake today for young Mindanawon Lawyers,” the commencement address delivered by Professor Antonio Gabriel M. La Viña at the Cor Jesus College Law School in Digos City, Davao del Sur on 24 April 2018)
Let me talk now about the morbid symptoms in this interregnum.
First, the bedrock principles of the rule of law and due process have been eroded, some would say they have become irrelevant. I would not mince any words in describing the extrajudicial killings that have characterized the war against drugs as crimes against humanity and properly the subject of the International Criminal Court if we cannot stop it through our domestic efforts and processes.
This brings me to my second symptom, that today our institutions are under attack and at serious risk of being rendered helpless before pressures it cannot withstand. How can we stop the crimes against humanity happening around us if killings related to the war against drugs, in particular the nanlaban incidents, are justified by the presumption of regularity? It is alarming to me that the Philippine National Police asserted this, through the Solicitor General, in the ongoing Tokhang case. When someone dies in a police operation, when thousands die, because of the war against drugs, there is no presumption of regularity. Investigations must be conducted so that conclusions are supported by the evidence. Policemen who kill a suspect must prove that the circumstances warranted the death.Otherwise, as the Supreme Court itself has said, one can only conclude that there is in fact an illegal campaign of state-sponsored killings.
The Supreme Court itself, while so far doing the right thing on the cases in the war against drugs, has not been spared and sadly has not spared itself form undermining its own credibility.
We must pay attention to the Sereno quo warranto case – the likely impact of a decision granting the petition on constitutional rule, on the judiciary itself, and on the teaching of constitutional law in our country. In my view, even if the Court states that their decision on the quo warranto does not create precedent, it will in fact radically overturn our constitutional system not just of accountability but also of constitutional interpretation.
The other branches of government, and especially the Senate, should be alarmed if the Supreme Court took for itself the role of removing one of its own, effectively substituting its judgment for that of the political body assigned by the Constitution to try and decide cases involving the highest officials of the country. Such a decision could put the legitimacy of the Court in question, whether it can be trusted to be the last word in interpreting the law and the Constitution. As an officer of the court and as a constitutional law professor, I would study closely the quo warranto decision whatever it may be but I would be hard pressed to defend it if on its face the decision violated the Constitution. It is also likely that, when political winds change, there would be those who would seek accountability from everyone responsible.
How did we even get here? The answer is obvious, and that is the third morbid symptom I want to point at today. In this country, politics has completely overcome the legal and we live in a world where power is the sole arbiter of what will prevail. Political will, as I said, is good but it should not justify disregard of the rules. I can grant that in fact some rules might be cumbersome and an obstacle to reforms. But the solution is not to violate the rules but to change them with better, more practical rules. One must remember that legal rules were crafted and adopted to guide all of us – the government, the private sector, and citizens. When the President and his cabinet, the Congress, and the Supreme Court itself derogate from them, even for what seems to be valid reason, that is a big signal to everyone who has economic, political, and military power behind them to do the same.
Impunity was not invented by the Duterte government but what is different now is that acts usually considered as violative of due process, equal protection, and other basic principles of a rules-based system is justified in the name of political will to solve our country’s problems.
That in my view is where we are with the war against illegal drugs. The campaign, tried out in a few places like Davao City and other nearby areas, is based on wrong premises for a national solution. As the President himself admits, the problem of drugs is just as intense as when he took over and the defeat of the ones principally responsible for illicit drugs in this country is far from certain. Political will has killed thousands of poor people but it has not solved the problem. In the meantime, the rule of law has taken a big hit.
That is also my view of Boracay. As I wrote in my Manila Standard column, I appreciate the political will behind the decision to close our number one tourist destination,I support the closure, but with qualifications. I appreciate the political will behind this decision. President Duterte and the three lead cabinet members – Environment Secretary Roy Cimatu, Local Government Secretary Eduardo Año, and Tourism Secretary Wanda Teo – are taking a very big risk in this decision. I will not second guess them on this main decision.
However, I hope that in implementing the decision the government would in fact follow due process and respect the rights of all the stakeholders – including their due process right to be consulted and to participate in the decision-making process that will have major impacts on their livelihoods and communities.
Finally, a fourth morbid symptom of our times is the sad irony of our diversity, which should be a source of strength, being weaponized to intensify conflicts. Social media, designed with the good intention to connect and bring us together, to make grassroots democracy come alive, has instead turned the internet into a battle ground where fake news and hateful views contest against and sometimes prevail to the detriment of the good and social peace.
In addressing fake news, defined as deliberate fabrication and dissemination of false facts, my overriding concern is that we do not throw out the baby with the dirty bath water. Fake news and their promoters would have won if we sacrifice in any significant way the great freedoms of speech and press.
Freedom of speech, expression, and press are all necessities of a modern state. They come with risks though, of abuse and mis-use, but I do not think there is a way around that. This is not to say though that we are helpless against fake news. I think we are in that moment for these great freedoms, we need to reaffirm them while creating new norms to overcome the fake news challenge.
In short, we are not helpless before all these morbid symptoms. We do not have to accept as final the dethronement of the rule of law, the decline of our institutions, the triumph of politics over law and ethics, and the promotion of falsehood. We can fight back and we must fight back.
TOMORROW: The Second Word: Calling
(MindaViews is the opinion section of MindaNews. Antonio “Tony” La Viña of Cagayan de Oro City is former Dean and currently professor at Ateneo School of Government, as well as Constitutional Law professor of Xavier University, University of the Philippines College of Law, Polytechnic University of the Philippines College of Law, De La Salle University College of Law, San Beda Graduate School of Law, Lyceum College of Law and Pamantasan ng Lungsod ng Maynila Graduate School of Law. He was also a member of the government peace panel negotiating with the MILF from January to June 2010 following the aborted signing of the already initialed Memorandum of Agreement on Ancestral Domain in 2008).