[Prefatory Note: The following text is the transcript of my presentation by video transmission to a Forum held in Manila on February 21, 2020 in support of Senator Leila De Lima who has been detained in prison for many months on spurious charges of drug trafficking. Such a case is an example of ‘weaponizing law’ (regressive lawfare) to carry out the anti-democratic policies of a fairly elected autocrat, which in the case of Rodrigo Duterte, despite leaving by now a long trail of blood-stained abuse, retains an approval rating of more than 80%. As in the United States, we ask the question that prompted the leading thinkers in ancient Athens to abandon democracy—‘how can we trust the citizenry if they are drawn to support demagogues whose policies are self-destructive for the political community?” If not, the people, then whom? Surely, not the financial oligarchs. Plutocracy is not the answer.]
Weaponizing Lawfare in The Philippines
I salute those who have convened and are participating in this International Forum on Lawfare, and wish that I could have been with you in person to share this experience directly rather than addressing you from a distance. The title of the conference accurately identifies the core of the challenge facing the people of the Philippines: ‘Weaponizing the Law v. Democratic Dissent.’ The prolonged detention and framing of Senator Leila M. de Lima, not only a brave and dedicated political figure, but an elected member of the Senate of the Philippines, is a shocking reminder of how abuses of power occur in a country that claims to be a constitutional democracy.
Senator de Lima’s tragic saga, gives an anguished concreteness to the challenge being mounted by the President Rodrigo Duterte’s Government against freedom of expression and associated right of political dissent. What this pattern represents, above all, is the distorted application of law and the manipulation of basic institutions of government. This means, in practice, that law does not serve its proper role of protecting citizens against abuses by the state, but rather functions as an instrument of naked power deployed by the state against notable critics and opposition figures, including person elected to the highest offices in the land. Under these circumstances law becomes an instrument of the authoritarian designs of an oppressive political leader. Such a leader views criticism not as part of the essential give and take of a political democracy, but rather as an impermissible assault on his leadership, almost reducing political leadership to a menacing call for unquestioning obedience on the part of citizens. Even elected members of the most prominent legislative and judicial institutions of the country are commanded to obey or expect harmful consequences. It is against this background that I wish to offer some thoughts on ‘lawfare’ as a weapon of the powerful, displacing law from its appropriate role as a source of restraint that ensures the just exercise of power. Under autocratic leadership lawfare can function as an inquisitorial tool, as here, for the suppression of Senator de Lima, a deservedly revered and until detained, a leading legislative presence in The Philippines.
There are four preliminary observations that I wish to make:
–first, what is happening in The Philippines is taking place, in a variety of formats throughout much of the world; it is a global trend that threatens not only democracy, but the protection of human rights, the constitutional structure of government based on checks and balances, the dignity of individual citizens, and the independence of persons elected to serve in government; law is being deployed as a weapon of government to be used against the citizen, especially against persons with political credibility and high national stature as is the case with Senator de Lima;
–secondly, such repressive uses of law by leaders is not new, although its widespread and flagrant use by democratically elected governments that enjoy popular support among the citizenry is a rather new and deeply disturbing phenomenon, especially in the current setting of ultra-nationalist backlashes against neoliberal globalization that along the way gave rise to mass support for political demagogues in a series of countries in different parts of the world, suggesting its systemic character;
–thirdly, and most significantly, lawfare as such should not be uncritically condemned, but rather its use as a means to deny basic rights should be unconditionally exposed, opposed, and rejected. The manipulation of lawfare to serve regressive ends is particularly perverse, considering that lawfare has the potential, when properly deployed in the pursuit of justice.
To illustrate this duality I offer a current example drawn from recent European and North American experience. Criminalizing as hate speech or anti-Semitism criticism of Israel’s policies and practices is a clear case of regressive lawfare, but recourse by Palestine to the International Criminal Court to investigate allegations of Israeli criminality is illustrative of progressive lawfare. It is important to distinguish between these contradictory roles of law—as repressive and as emancipatory. The Palestinian BDS Campaign seeks boycott, divestment, and sanctions as lawful resistance against the apartheid practices of the Israeli state, and in my view, this is a nonviolent political campaign that convincingly relies on legal claims of Israeli wrongdoing to strengthen the pursuit of justice.
–fourthly, having made this conceptual point about the two faces of lawfare, in this presentation I will focus on its negative dimensions in ways that pertain to the case before us. I precede this assessment with a short observation about being attentive to lawfare’s progressive relevance to Senator de Lima’s plight.
Civil society activism can also claim to invoke the law to undermine the legitimacy of an abusive governing process. Many years ago, during the Marcos reign of power in The Philippines, I worked closely with Walden Bello to organize a session of the Permanent Peoples Tribunal in Brussels that listen to the testimony of witnesses and carefully documented the crimes of the Marcos government as perpetrated against the citizenry of the country. The proceedings of the tribunal produced a devastating record of abuse of state power, which when published, helped prepared the atmosphere for what later became the People Power Movement of the 1980s. In terms of lawfare, this civil society initiative was an example of progressive lawfare. Similar tribunal initiatives have been undertaken in many settings around the world to exhibit the abusiveness of government, especially when conventional means of judicial address are unavailable. I believe such a civil tribunal format might possess a similar potential in the present context if formal legal defense procedures now being pursued by a team of highly respected lawyers should fail to restore the rights, win freedom and fully exonerate Senator Leila M. de Lima in a manner that allows her to resume her legislative duties.
The Distinctive Challenge of Regressive Lawfare in the Context of Constitutional Democracy
The reliance by autocracies on repressive lawfare is neither surprising nor new, although this terminology was not previously used. Whether the autocratic political form is monarchical, fascist, or communist the use of law to impose its will on society occasions little commentary as it is taken for granted that such a governance style is a common and integral feature of all anti-democratic forms of governance. For constitutional democracies the story has been much different in the past, and thus recent developments raise profound concerns about the future of democracy given recent assaults on its respect for fundamental rights. We should not exaggerate. There have been regrettable aspects of constitutional legal orders that have relied on repressive uses of law, for instance, apartheid South Africa, which possessed a constitutional framework to validate its exploitation and oppression of non-whites, and their exclusion from civil rights. Racism was seen as so much part of the South African political system as to occasion little distinct commentary on its repressive uses of law beyond the realization that overcoming such structural lawfare depended on achieving a radical political transformation. Piecemeal corrective measures would not rid South Africa of the political virus of apartheid, only a total repudiation of the ideology and practice of apartheid could restore the rule of law for all South Africans regardless of their skin color.
In recent years, especially in the aftermath of the 9/11 attacks, national security discourse in the United States has been a battleground for contesting ideas about how lawfare was used and misused. National security hawks contending that according due process protection to those suspected of terrorist activities was ‘lawfare’ that interfered with national security imperatives requiring reliance on ‘enhanced interrogation’ techniques to obtain the information needed to protect the citizenry against terrorist threats. In sharp disagreement, civil libertarians invoked law and civil rights to oppose and denounce the demonization of Muslims and the accompanying denial of rights to those accused of criminal activities that supposedly endangered national security. This reliance on law as distinct from negative lawfare was also highly critical of the government’s slight of hand– officially calling ‘torture’ enhanced interrogation, and thus evading condemnation for lawlessness. Only apologists for torture allowed themselves to be manipulated.
The struggles between defense lawyers and government lawyers at the Guantanamo prison facility is one phase of this wider drama in which what is at stake is how far the law is bent to serve the purposes of a constitutional state that claims to be dealing with grave threats to its security. It has long been affirmed, and generally tolerated, that in times of war, law is silent, or almost so, and yet it is also true that anti-war activists have increasingly challenged such silence by insisting on the applicability of law regardless of circumstances.
The mass internment of Japanese, as a group, with legal residence in the West Coast, for alleged national security reasons at the start of World War II after the Pearl Harbor attacks, was a fundamental abuse of individuals rights to due process by the U.S. Government, but upheld by the majority of judges in the US Supreme Court, which lent its legal authority and prestige to this negative instance of lawfare. To this day, Japanese internment remains a major regrettable departure from the rule of law in the United States but is considered, not entirely accurately, as an exception, later gathering apologies and expressions of regret from presidents and other political leaders. This kind of departures from the rule of law in wartime, although to be opposed in defense of democratic values, is something different and less serious than the lawfare tactics of autocratic leaders seeking to stifle dissent and discredit opposition in state/society relations. These tactics, if successful, engulf all branches of government, having the effect of disabling democracy altogether. The regressive impact of such lawfare extends beyond the concrete abuse of an individual, however prominent. Such tactics intimidate many more than they punish, and thereby act to pacify society as a whole at the very time when the citizenry needs to be mobilized to protect the integrity of a political system that safeguards rather than punishes participation by the citizenry, including dissent and opposition.
A further somewhat ambiguous dimension of lawfare can be seen in the imposition of punishment via the application of law to surviving leaders of the losing side in a war, as was the case after World War II at the Nuremberg and Tokyo Trials of German and Japanese leaders accused of committing international crimes. Should the one-sidedness of such uses of law, so-called ‘victors’ justice’ be regarded as one category of regressive lawfare, or is the punishment of individuals who perpetrated terrible acts be treated as a contribution to constructing a global rule of law, and thus should be viewed as an instance of flawed, yet still progressive lawfare. This is an example of the ambiguity of lawfare in concrete circumstance. Lawfare can be viewed either positively or negatively depending on overall context and the motivations behind invoking and perceiving law. Let me be clear. There is no ambiguity in relation to Senator de Lima’s case. It is without doubt an extreme instance of negative lawfare.
What we have seen around the world with the emergence of such leaders as Trump, Modi, Bolsonaro, Erdogan, and Duterte is this new phenomenon of democratic electoral procedures elevating and even sustaining anti-democratic leaders despite their abuse of positions of preeminent authority to obstruct and punish those in the opposition by manipulating law and even the most basic government institutions to serve the purposes of power at the expense of justice. This is not a matter of deference to security claims made under wartime pressures and contexts of national emergency, although such pretexts are generally relied upon, presumed, and greatly exaggerated, even absent such security threats. Autocrats tend to explain and justify why a controversial particular action is taken by fictitious reasoning or why a formerly respected person is made to seem guilty by distorting normal legal practice. These tactics involve deliberate manipulations of law and government procedures, including the erosion and subversion of the vital independence of legislative and judicial institutions to cripple opposition politics by criminalizing its leading opponents. In the process, if unopposed and persistent, the very status of a constitutional political order is drawn into question.
There are those in the United States who view Trumpism as pre-fascist, or worse, and fear that his reelection in 2020 would mean the de facto replacement of democracy with fascism. In the recent impeachment process, we observed a polarized and Congress divided along partisan lines as to the application of diverse forms of lawfare, with the Democrats using impeachment as an intended and seemingly responsible reaction against severe abuses of power, in effect, a legal instrument designed in exceptional circumstances to rid the country of a profound threat to its system of government. In opposition, the Republicans stand firm behind their autocratically inclined leader, condemning recourse to impeachment as regressive lawfare, placing party discipline above fidelity to the rule of law and their oath of office to uphold the Constitution. This major setback for the rule of law in America ominously warns us that even in long established political democracies opportunistic politics can overwhelm constitutional protections against abuses of state power.
When addressing the realities that have been discussed these past days, it seems clear that we are in this case seeking to protect not only Senator de Lima, but the people of The Philippines as a whole against regressive lawfare. There is little ambiguity when dissent is muffled by criminalizing the dissenter, as here, although the real and unworthy motivations for such accusations are hidden beneath clouds of false and inflammatory accusations of criminality, as here.
In a deeply disturbing resemblance to the Trump impeachment experience, Senator de Lima has also been victimized by Duterte partisanship in the Senate, including being deprived of the opportunity to serve the people who her elected her to office for a term that does not expire until 2022. While detained in prison she has been denied the right to vote on legislative issues and to participate in debates. She has even been removed from her role as Chair of the Committee on Justice & Human Rights in apparent retaliation for accusing the Duterte policies of unlawful extra-judicial executions of persons accused of dealing in drugs. While acting against Senator de Lima, she was attacked in unspeakably vulgar terms by Duterte partisans in language that was a vicious form of character assassination. This Forum by calling wider public attention to this abuse of Senator de Lima by all branches of government is based on the hope that the resilience of Filipino constitutionalism will come even now to the rescue not just of a single individual but in a manner that restores confidence that the rule of law can function under the altered conditions of political democracy in The Philippines.
What Can Be Done
Responding to regressive lawfare as effectively as possible depends, in the first instance, on assessing the context, above all the degree to which executive authority, judicial independence, and legislative autonomy are operating within constitutional limits. If the deviation from adherence to the rule of law is partial, exceptional, and seems reversible, then a maximum effort should be made to make intelligent use of formal legal procedures as provided. Such professional lawyering should be supplemented, to the extent possible, by media coverage and the engagement of academic experts that exposes the political nature of any misuse of law, arousing a responsive public opinion. Such extra-legal pressure in a political system that maintains its claims of democratic legitimacy can be effective in persuading wavering judges and conformist legislators to do the right thing, and at least refrain from doing the wrong thing.
The challenge is more difficult where the institutions of government have been repeatedly subverted by the autocratic leader, and especially under conditions where the opposition media has been eliminated or cowed into submission, and popular protest activity is being met by harsh police tactics. Of course, such assessments should take account of nuances and the extent to which a leader seeks to avoid being nationally and internationally branded as an abusive autocrat.
Unfortunately, at the present time the overall political atmosphere makes resistance to lawfare more difficult as the combination of ultra-nationalism and right-wing populist leadership has become widespread, including in several countries previously considered reliable custodians stalwarts of liberal constitutionalism. In gentler times, international efforts to mount petition campaigns by prominent citizens around the world in defense of a ‘political prisoner’ were often successful, and still may be worthwhile
in a case of this sort where such a respected and prominent elected official is being victimized by such a crude recourse to lawfare. Autocracy is almost always a matter of degree, especially if free elections remain. If opposition politics are tolerated, then it remains possible sometimes to challenge the system effectively, as happened recently in Turkey when a much watched election of the mayor of Istanbul was won by a political leader in an opposition party. This, in turn, may lead the government to restore some liberal features of governance, which some commentators claim has modestly happened in Turkey in recent months. Autocrats prefer to act in the dark, using their control over media and supporters to smear opponents. Senator de Lima’s case is an extreme example of law gone wrong, a pattern of injustice being challenged to the extent possible by courageous and highly professional lawyers, but this may not be enough. Other course of action, including progressive lawfare, should be under consideration if further attempts to render justice on behalf of Senator de Lima do not succeed.
I would mention a few additional possibilities that deserve careful evaluation, and possible adoption, especially if human and financial resources are available:
–enlisting the support of nationally and internationally respected NGOs, encouraging the preparation of a public report on abuse of rights and regressive lawfare in The Philippines; Amnesty International and Human Rights Watch have often been effective over the years in documenting abuse, and exerting some leverage;
–filing allegations via Special Rapporteurs of the UN Human Rights Council in Geneva, including the SR for the Right to Freedom of Expression, to evaluate these multiple abuses, reporting to the 47 governments in an open session of the Human Rights Council, passing a resolution, and sending a letter of allegation to the government of The Philippines are steps worth consideration; in this regard, it is relevant to note that The Philippines is an elected member of the Human Rights Council, and likely does not want its reputation tarnished within the institution;
–explore the possibility of organizing an international civil society tribunal, possibly outside the country, along the lines of such an initiative taken during the Marcos presidency or possible modelled on the Iraq War Tribunal of 2005. Autocratic leaders are allergic to procedures that document their abuses and crimes, and pass judgment based on the conscience of moral authority figures, the testimony of victims, and the opinions of legal experts. The subsequent published and disseminated proceedings of such a tribunal can become a valuable mobilizing instrument of progressive lawfare;
–less formally, yet along the same lines, would be the preparation of a dossier on Senator de Lima’s experience that could be shared confidentially with sympathetic political leaders around the world.
It is definitely a positive sign of a degree of democratic resilience in The Philippines that a conference of this kind can be organized and go forward. It will be a test of sorts as to whether the Duterte government will extend its use of regressive lawfare to uphold the suppression of dissent and criticism. In my reading of the legal briefs and documents pertaining to Senator de Lima’s case, I am convinced of her innocence and her victimization. I believe that the impact of this Forum will help determine whether bringing her terrible experience to light will induce the Manila government belatedly to salvage its international reputation to some extent by dropping charges. She has been fortunate to have the benefit of an outstanding Chief of Staff, Fhillip Sawali, who works in coordination with Senator de Lima’s well-respected team of lawyers. Senator de Lima also has the high-profile support of such international admired warriors of human rights and democracy as Walden Bello. I fervently wish Senator de Lima a deservedly bright future in her struggle, which iss also a struggle for the soul of the country. It has been a privilege for me to have this opportunity to participate in this Forum. I wish you all the best for now and in the future.