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Weaponizing the law

/ 05:10 AM March 31, 2019

A weapon is an object that is used to inflict harm or injury on a person or a group. To “weaponize” is to transform or convert something into an instrument of attack. The implication is that something is deployed in a manner not normally expected. And this, precisely, is what lends “weaponization” its insidious character.

Virtually everything can be weaponized — law, religion, science, art, love, hatred, racial or ethnic prejudice, etc. Concealed behind the veneer of normality, the act of weaponizing rides on the established communication system of the domain in which a thing originally occurs.

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Take law as an example. As a functional domain of society, law operates by the code “legal/illegal.” The system determines for itself what is a valid legal communication and what is not. This determination is supposed to be based on the system’s own operational code, not on, say, what is morally acceptable or politically expedient or economically profitable.

All this, of course, does not prevent the filing of criminal charges in order to achieve political or other objectives.  Let’s take the situation of Maria Ressa, a respected journalist and CEO of online news agency Rappler, who has been served a slew of arrest warrants and has had to post bail seven times in the last two months in connection with cases filed by various government agencies. Any neutral observer can reasonably conclude that Ressa is being singled out for prosecution because of her critical views of the current administration. But to prove that within the legal system is something else.

Equality before the law is highly valued in all modern legal systems. Indeed, the equal protection of the laws is the first right listed in the Bill of Rights of the 1987 Constitution. “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 laws.”

This limitation on government’s power seems as clear as day. But, violation of the equal protection clause is not easy to prove. One has to show that the calling out of something as legal or illegal was done unfairly. Prosecutors and judges can always argue that they are just allowing the normal process of the law to take its course. Equal protection is a value that is upheld only in the course of a system’s self-observation. You can assert it only from within the legal system.

If we have strong independent courts that are not beholden to any powers outside the legal system, then it is possible to stop the political weaponization of the law. But, where law enforcers, prosecutors and judges are vulnerable to intimidation or manipulation because of personal ambition or fear arising from some hidden liability, it is futile to expect the law to serve as a check on the excesses of government.

So accustomed are we to regarding the law as the primary instrument of justice that we are incredulous when we see it deployed to achieve unabashedly political ends. The idea seems so absurd when first floated that we think somebody is obviously joking. But incredulity turns to shock as we watch every part of the legal system conspire to transform the joke into reality. The examples in the last three years under the Duterte presidency are too numerous to list down here, but we can name the most glaring.

Who would have thought that Chief Justice Maria Lourdes Sereno, after five years of leading the country’s highest court, could be removed from her position by “quo warranto” — a legal action that questions a person’s authority to exercise or occupy a public office? But, the Duterte administration, through Solicitor General Jose Calida, managed to show that certain documentary requirements needed in the process of qualifying for the position were not submitted. Therefore, her appointment was null and void ab initio. What makes this devious trick even more shocking is that it was consummated with the overt cooperation and participation of the majority of the high court’s members.  I would have thought that it was far easier to question the validity of Rodrigo Duterte’s substitution of Martin Diño as presidential candidate in the 2016 election.

Diño’s certificate of candidacy was, on its face, defective, and, arguably, void ab initio.

And who would have thought that a sitting senator, Leila de Lima, Mr. Duterte’s fiercest critic, could be arrested and detained without bail, for conspiracy to trade in illegal drugs — on the basis of testimonies of convicted drug criminals? The information failed to identify the allegedly traded drugs. Yet, three courts separately found probable cause and ordered her arrest.

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But, nothing perhaps can equal the absurdity of reopening the rebellion and coup d’état charges against Sen. Antonio Trillanes IV, another outspoken critic of Mr. Duterte, on the ground that the amnesty he received, which had prompted the dropping of these charges, was void ab initio. Why was it void?  Because, says the Department of Justice, he never filed for amnesty.  Proof? The application papers could not be found. Never mind that the custodian of these files is supposed to be the government. And never mind that only Trillanes’ amnesty is being questioned.

The successful deployment of legal processes as a weapon in politics undermines the credibility and stability of society’s normative expectations. As a result, less and less can we rely on judicial outcomes. When this nightmare is over — for everything comes to an end — it is difficult to say how long it will take to repair our damaged legal system.

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