Asserting sovereignty through the rule of law

BY ANTONIO CONTRERAS         JULY 16, 2019

PRESIDENT Rodrigo Duterte, Foreign Affairs Secretary Teodoro Locsin Jr., presidential spokesman Salvador Panelo and other government officials, and practically every pro-Duterte netizen and blogger I know, have condemned the resolution passed by the United Nations Human Rights Council (UNHRC) authorizing an inquiry into the Duterte administration’s war on drugs. The reaction was almost immediate in attacking Iceland for initiating an action even if it had allegedly very little knowledge about the actual conditions in our country. Mexico, which voted for the resolution with Iceland and 16 other countries that included Australia, Austria and the UK, was accused of hypocrisy for having the audacity to do so despite of its own record of human rights violations. The main bone of contention for our leaders and their sympathizers is that the UNHRC resolution is an unwarranted intervention into our sovereignty. Their defense is that we have robust mechanisms to adjudicate abuses by government authorities, and that we continue to uphold the rule of law in relation to the war on drugs.

At the outset, nobody is questioning our right to adopt our own national policy in relation to the drug menace. This is a right emanating from our sovereignty, which cannot be diminished by any other country or any international body such as the UNHRC.

However, sovereignty is not only manifested externally as we assert our status as an independent state. It is also expressed internally through a system of laws. The State is supreme through the law and the Constitution. No one, not even the President, is above the law. Modern states now exist within the constraints of limited government, with modern constitutions expressed as limits to governmental authority and power. The system of checks and balances is in place to ensure that the citizens are protected from abusive governments, and where internal sovereignty is expressed not as the absolute power of the President to enforce laws, but as the supremacy of the law and the Constitution. The President is not the sovereign. It is the people through the Constitution.

When we assert our sovereignty against intrusion from any country, or from an international body like the UNHRC, what we are in effect using as a line of defense is that external intervention is not necessary since our internal sovereignty is robust and that we have made steps to ensure that rules and processes are followed, and rights are accorded to our citizens. Beyond the bravado and the colorful language of our protesting leaders, this is exactly what we are telling the UNHRC, that our internal sovereignty manifested in a system or laws and constitutional processes is operational and supreme and higher than anyone, including the President.

Incidentally, this is also the same line of argument used by China in its response to allegations made by Western countries about the way it treats the Uighurs, the Muslim minority in Xinjiang province, which we supported. The Philippines, with 35 other countries, signed a letter commending China’s supposedly remarkable record in human rights, belying accusations about the presence of concentration camps allegedly designed for the forced assimilation of the Uighurs, claiming that these are perfectly legal vocational and training centers.

The UNHRC is not actually questioning our right to have our own anti-drug policy. What it seeks to inquire into is whether we are following our own laws and the Constitution.

It is a fact that the death penalty is outlawed in our country. Hence, the existence of 6,600 drug-related deaths, which is the number admitted by the Philippine National Police (PNP), would require justification, because they became exceptions to the law. The only instance that any death can be justified is when the killing was done to protect the lives of the police when the one being apprehended had fought back in a manner that became life-threatening. It is only here that state violence is justified as legitimate, and is warranted.

But we have to face the challenge of defending those thousands of cases of our police feeling threatened, some of whom by men who are even already in handcuffs. It raises many questions and makes you wonder also why majority of the dead have bullet wounds in their heads and backs. And many of them are children and the youth. It also puts into doubt the technical capability of our police authorities to skillfully engage the apprehended suspects.

The burden of proof is always on the State to prove that any death is warranted. This is because we have a law that disallows capital punishment. Even in the event that it will be restored, it can only be applied after due process and after automatic review by the Supreme Court.

Thus, the State has the burden to prove that each of these 6,600 deaths surpassed the minimum bar for justifiable state action. The question, therefore, is whether the State has provided such proof.

It is not enough to say that our judicial system is robust to address abuses of power. We can’t simply rely on the case of Kian Loyd de los Santos’ executioners being punished after going through the legal process. What we need to secure is a robust internal investigative mechanism within the PNP that would clearly and credibly ascertain that these deaths were acts of the State to defend itself as allowed by our laws and the Constitution. We also need to make sure that our judicial process is summoned not only after government authorities have already abused their power and when suspects have already died, but also to ascertain whether these suspects are in fact guilty after being arrested lawfully.

We cannot afford to use the robustness of our system of laws as our line of defense against the probing eye of the international community, if we are unable to show that they actually work.

https://www.manilatimes.net/asserting-sovereignty-through-the-rule-of-law/584964/