PROMOTING IMPUNITY

The imposition of the death penalty in a flawed justice system can open the floodgates to the execution of people wrongfully convicted.

The campaign by President Rodrigo Duterte and his allies in Congress for the restoration of the death penalty is replete with irony. Capital punishment is supposed to discourage criminality while at the same time insuring that those who commit certain crimes get what they deserve. But what’s likely is that rather than deter crime and assure crime victims of justice, it will further strengthen the impunity, or exemption from punishment, of the powerful, privileged, and well-connected.

The drive for the restoration of the death penalty is fueled by the mulish belief that it is the most effective means of addressing the country’s supposedly huge drug problem. Drugrelated crimes are inevitably described as “heinous” by people of limited vocabulary and even worse sociological awareness such as congressmen and presidents. When used to describe certain offenses, the word “heinous” provokes demands that the perpetrators be killed. Killing has been a particularly popular “solution” to everything from the drug problem to smuggling ever since Duterte made the directive to “kill them all” the core of his social policy.

However, whether one is killed or not depends on whether he or she is a slum dweller, a resident of a Makati gated community, or, for that matter, a highranking police official. The usual double standard explains why, in their rush to restore capital punishment, our distinguished congressmen aren’t including plunder in their list of crimes punishable with death. No slum dweller can commit plunder, but a congressman can — and too often does.

But do they really need to restore the death penalty at all? While it’s been officially abolished these last 11 years, killing has been the first, the last, and the only resort of what passes for governance in this country when addressing most of the issues and problems that beset it.

During the term of Gloria MacapagalArroyo, who suspended the death penalty in 2006 and later signed into law, Republic Act 9346 which repealed the death penalty law, over a thousand political activists, including lawyers, students, labor and peasant leaders, and even judges and reformist local officials were nevertheless killed or forcibly disappeared by State security forces. The killings occurred while Arroyo was commuting the death sentences of convicted rapists and murderers and in some instances giving them weekend and holiday passes. In her universe as well as the military’s, demanding reforms was worse than rape or murder — and isn’t it still so in the minds of the lords of the regimes that followed hers including this one?

And who can ignore the killing of journalists, most of which occur at the instigation of local officials who resent being exposed for corruption and other wrongdoing, and who often use police and military personnel to carry out the deed? For example, over 60 members of government-supported paramilitary groups as well as police and military personnel acting as the private army of a local warlord have been indicted and are currently undergoing trial for the massacre of 58 men and women including 32 journalists on Nov. 23, 2009 in Ampatuan town, Maguindanao province. The crime was committed eight years ago, but the trial is still plodding along, with no guarantee that anyone will ever be convicted.

In the course of the Duterte administration’s war on drugs, over 7,000 people suspected of being drug users or petty drug traders were killed by elements of the Philippine National Police (PNP) and by alleged vigilantes whom many suspect are policemen themselves or supported by the police. Not with too much exaggeration has the PNP been described by South Korean media as the most corrupt in Asia in reaction to the kidnapping for ransom and murder of Korean businessman Jee Ick Joo by, among others, four active duty police officers and a former policeman.

The death penalty has been officially abolished, but that hasn’t prevented the killing of Filipinos and even foreigners by State actors in these isles of fear. Neither did the death penalty, during the time it was in force in the country, prevent murders, kidnappings, rapes and other vicious crimes from being committed, and in numbers large enough to suggest that killing killers doesn’t deter the commission of even the foulest crimes.

To the argument that even while the death penalty was in force, terrible crimes were nevertheless being committed, President Rodrigo Duterte counters that that was because he wasn’t President then, arguing that it’s the determination to see to it that it is imposed that will make all the difference. And yet, isn’t it for the judiciary to decide who lives or dies? Is Duterte suggesting that, in repudiation of the principle of judicial independence, he will pressure judges and the courts to impose death sentences should the bill restoring capital punishment become law?

We aren’t surprised by this latest presidential post- truth assertion. But as the experience of even such supposedly “mature democracies” as the United States demonstrates, the imposition of the death penalty in a flawed justice system — and no man-made system is ever completely error- free or exempt from bias — can open the floodgates to the execution of people wrongfully convicted.

In the US state of Texas, for example, where the death penalty is in force and executions are as common as school shootings, more advanced forensic methods such as DNA tests have established that dozens of people have been executed for crimes they did not commit. Compromised by such infirmities as the prohibitive cost of competent representation, police bungling, and the heavy case loads of prosecutors and judges, the Philippine justice system is particularly susceptible to worse errors. Such errors are likely to lead to wrongful executions, particularly of the poor, for which error there would be no remedy. It should be obvious even to imbeciles that while a wrongfully imposed life sentence can be reduced and even reversed, a death sentence once carried out is forever.

The Duterte regime’s experience with the so-called “Oplan Tokhang” should be causing it to rethink its death penalty advocacy, but it isn’t. During that campaign’s lifetime in the hands of the PNP, its chief enforcers abused their mandate not only by ignoring the Bill of Rights but also by using the drug war as a cover for profit-making through kidnappings, blackmail and murder.

Susceptible to bribery and the usual blandishments of the rich and powerful, the police will continue to assure the prosecution, conviction and execution

only of the poorest and least powerful while the wealthy literally get away with murder as they have been doing so for decades. As in the case of “Oplan Tokhang,” the poor are likely to be the most likely recipients of death sentences, although this time judicially, while the drug lords and plunderers continue to enjoy their entitlements in the Philippine culture of impunity.

But wait: will the Duterte administration, as in the anti- drug campaign, designate the military instead of the PNP to build cases for the prosecution of “heinous” crimes? Besides its being patently unlawful, there is also the fact that the military has been as abusive as the police and worse, as the country’s experience with extrajudicial killings (EJKs) and other human rights violations has demonstrated during every regime since that of Ferdinand Marcos. Like the police, the military personnel involved in such atrocities against the population as torture, enforced disappearances and murder have also gotten away with it. No one from either the military or the police has been tried and convicted for EJKs, for example, and, given the fear of the military even among the highest civilian authorities in this country, that’s not likely to change.

Crimes are crimes whether committed by so-called law enforcers or by members of the civilian population. But only after policemen were implicated in the killing of Jee did it occur to anyone that the extrajudicial killing of over 7,000 individuals should be part of the crime statistics the PNP insisted had fallen during “Tokhang.” The irony would be the probability of enhancing police and military personnel’s already rampant immunity from punishment for such offenses as torture, murder, kidnappings and other “heinous” crimes once the death penalty is restored. While our attention would be focused on civilian wrongdoers, police and military criminals would continue to be exempt from punishment — and in addition would be contributing to the further erosion of whatever remains of the justice system.

And isn’t the allies of Duterte’s not including plunder among capital crimes already indicative of how biased for the wealthy and powerful and against the poor and powerless the return of the death penalty would be, and as it had been in the past?