Lawfare under Duterte
The first time I came across the word “lawfare” was when I read Justice Antonio Carpio’s book “The South China Sea Dispute: Philippine Sovereign Rights and Jurisdiction in the West Philippine Sea.” He used it to describe what the Philippines was doing to protect itself in the dispute with China. Engaging in lawfare, rather than warfare. The Philippines brought suit against China in the Permanent Court of Arbitration in The Hague and we won an outstanding victory.
That was lawfare in the positive sense—a nation’s use of legalized international institutions to achieve strategic ends, against a more powerful enemy. Using the rule of law to level the playing field.
But there is an ugly side to lawfare: that of using the law (weaponizing it) against democratic dissent. This was what was discussed at an international law forum held yesterday at the De La Salle University.
Lawfare has been defined as “the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.”
Lawfare—using the law, as practiced by the Philippines against China.
But President Duterte, his critics claim, has been misusing the law to achieve his objectives which are personal in nature. Where has he misused the law?
Let us start with Sen. Leila de Lima. Why start with her? Because, Reader, De Lima has been deprived of her liberty for 1,094 days. For what? The real reason is that she had crossed President Duterte (or so he thought).
Even the Supreme Court seemed confused with what she was charged with—some justices thought she was charged with illegal drug trading, others thought that it was conspiracy to trade in illegal drugs—but they still went along.
If you are following her case, you will have noted that the prosecution’s case is falling apart: One prosecution witness (Gen. Benjamin Magalong, former chief of the Criminal Investigation and Detection Group) totally belied another prosecution witness (former Bureau of Corrections chief Rafael Ragos), saying that the latter was the one “extorting and receiving payola from high-profile inmates.” Ragos was formerly coaccused with De Lima, became a prosecution witness and was reinstalled in the National Bureau of Investigation as a reward, in spite of the formal protest of the NBI.
More recently, another prosecution witness, from the Anti-Money Laundering Council said that De Lima was not involved in the bank accounts that former justice secretary Vitaliano Aguirre II claimed was hers. And it came out in court that Peter Co—a drug lord in jail who was supposed to have had millions of pesos delivered to De Lima for her senatorial campaign—actually paid the P10 million to the jail warden in 2013 to restore him to his life of relative luxury (De Lima ran for the Senate in 2016).
See how flimsy the case against De Lima is?
There are other cases: Maria Ressa, former chief justice Maria Lourdes Sereno, Sister Patricia Fox. They are all women, and they all, at one time or another, crossed President Duterte (or so he thought). Ressa had several warrants of arrest served against her, not to mention the 11 cases brought against her. Sereno lost her position due to a totally misapplied quo warranto case. Fox was forced to leave the Philippines.
The most recent cases are the sedition charges against 36 personalities (including the Vice President and four bishops) in connection with the “Bikoy” videos accusing the President’s family of being involved in drugs. Bikoy’s charges were never investigated, but the 36 were. The charges have been reduced to “conspiracy to commit sedition” and only 11 of the original 36 have been charged, including former senator Antonio Trillanes IV. This is the second attempt to bring Trillanes down, the first being the resurrection of long dead charges against him. Trillanes crossed the President, too (or so he thought).
And lastly, the move to disenfranchise ABS-CBN by the Solicitor General with his trusty quo warranto weapon. The franchises of GMA-7, TV-5 and the Iglesia ni Cristo TV companies were renewed without a murmur. Why is ABS-CBN’s being withheld? Correct, Reader. It crossed the President (or so he thought).
Lawfare. The President misuses the law against his perceived enemies or critics. Clearly a grave abuse of power. Why do we allow it?
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