Tag Archives: Duterte

COVID-19: Present, Past, and Future

17 Mar

COVID-19: Present, Past, and Future

 

A few days ago when WHO officially declared the COVID-19 a ‘pandemic’ a Rubicon of consciousness and global governance was crossed. Hundreds of millions of individuals around the world are coping physically and mentally with what that word never before used in my lifetime means for themselves and those they care most about. The mental dimensions of self-isolation may turn out to be a big challenge almost as big as the disease itself. For once, government officials seem to be heeding the warning of health specialists rather than dutifully than scurrying about to address market signals of distress with public funds. At least this is the public face we see on our TV screens, although in Trump’s case even the appearances are mismanaged, considering the corporate smirk at his Rose Garden press conference when several CEOs pf prominent companies received better free PR that not even their most energetic publicist ever imagined attainable. There is a silver lining: if the American elections are actually held in November, we should see the fall of Trump, and as importantly, the end of Trumpism, that is, unless there is a quicker return to normalcy than now seems possible. Although one thing we might learn from how our lives changed overnight is to stop trying to outguess the future. Economists and future studies consultants may have their super-sophisticated models and graphs, but some of the most significant surges of history have a will of their own that often makes the most mathematically advanced computer models seem out of touch with transformative social forces that remain hidden until a shockingly unexpected eruption occurs.

 

If nothing else, COVID-19 reminds us of the perils and possible promise of radical uncertainty. As this mysterious deadly mutation of the Coronavirus suggests, our powers of anticipation are not much more impressive than those of our brothers and sisters in the jungle, and I am referring mainly not to tribal peoples looking up at the sky for signs of what is to come, but also of elephants and lions roaming freely on the savannas and grasslands of the world, yet suffering mass killings when wild fires rage out of control. What this uncertainty mandates above all else is preparedness and the acceptance as a matter of urgency of the Precautionary Principle as the long overdue Eleventh Commandment of our civilization. The Precautionary Principle should guide us to take steps to avoid known thresholds of irreversibility or curves of rising risks. The message is this.  Don’t wait until the predictable crisis is at hand, and don’t build on or near the known fault lines of the planet.

 

COVID-19 also suggests something else that is both instructive and worrisome. We as a species react to crises when their impact is immediate and lethal, and sometimes compensate for earlier complacency by over-reacting when widespread fear spirals out of control to produce panic, and in the process lurid memories of past failures are dredged from the depths of collective consciousness. The Spanish Flu Epidemic of 1918-19 is a current example of a past event I never heard discussed during my childhood, or throughout my adult life, but now is on the lips of many. While still a child this earlier flu pandemic was almost as recent then as the 9/11 attacks are now. We forget quickly past urgencies until replaced by new urgencies.

 

Another lesson here is that we cannot afford to treat climate change as we are treating this pandemic. Once the concreteness of climate change is revealed so that none can plausibly deny, or escape, or turn away from what happens at a distance, or be explained away as an anomaly of nature, or a danger that technology will address before the great collapse will occur, it will be probably too late to halt the downward trend.  For now, despite the fires, floods, and droughts the sky above remains as blue as ever in most places, the stock market showed no abiding concern about global warming, and the whole societal ecosystem lurches forward, producing the latest digital device and AI advance, without blinking. Even Brazil and Australia, scenes of catastrophic fires, seem to view these occurrences as one-time events that should not in the first instance interfere with neither sovereign rights nor with profit-making deforestation and cattle ranching, and in the second, with expanding coal production and exports. The short-termism of how we live our ordinary lives and how political leaders and corporate moguls are judged, makes it difficult to combine democracy and accommodating the global and the long-term, especially if its destructive impact can be imagined as always occurring to others far away or in the distant future. When we read of the ordeal of those living in prolonged subsistence confinement in Gaza or in the misery of refugee camps and border assaults, we may lament the news, and even sign petitions and make donations, but our nighttime sleep is rarely interrupted the way it would be if a next door neighbor or a loved one was so severely infected by the virus as to be carried off to a hospital, hopefully one with enough beds and ventilators, which in a matter of weeks might itself become a vain hope for many older infected people.

 

COVID-19 also further tears at the fabric of democratic governance. Israel reveals that it has elaborate secret files for the surveillance of all mobile phone users in the country, supposedly to help with counterterrorist efforts, but now to be used in identifying, locating, and confining those believed to be infected or having had recent contact with carriers of the disease. When Orwell imagined a tormenting Big Brother, it was read as an indictment of totalitarian systems of governance, specifically the Soviet Union, or at most a warning of a world in the making, an imagined dystopia that would hopefully never become actual. What the imagination could only worry about the technologists have now achieved. Are we safer, more secure and content when all of us have become suspects and our lives transparencies subject to the discretion of unaccountable bureaucrats?

 

As with the delusions of the militarist, excessive investments in weapons brings insecurity, not enhanced security. America is the best example in all of history. While our military arsenals grow, we shackle ourselves with more and more restrictions on our freedoms, which has been translated by our minder into electronic monitoring, long lines, and countless hidden cameras. Instead of improving lives by investing in social betterment through health, education, culture, parks and natural preserves, we spend public monies collecting meta-data and insist on a military capability that is dominant globally, able to strike catastrophic blows anywhere on the face of the earth from land, air, and sea platforms, and even from space. China, with all its imperfections, demonstrates to the world that the way to gain power, prestige, and influence is to manage clever fusions of state and market, taking advantage of soft power opportunities wherever they are found. By way of contrast, America is demonstrating that the way to lose power, prestige, and influence is to rely on geopolitical muscle through threat and coercive diplomacy, sanctions, and intervention. The result has been repeated frustration by striking its blows in dead end misadventures, yet learning nothing from each failure because the whole edifice is militarized, paralyzing the moral and political imagination, and the high-priced gurus offer tactical adjustments that misinterpret past failures, and thus prepare the way for new failures..

 

The democratic fabric of many countries was fraying badly long before COVID-19 added to the wear and tear. The end of the Cold War brought with it the expectation that the material and political benefits of democratic forms of governance would become so obvious to everyone as to produce a global tsunami of democratization, and to some extent it did during the 1990s. Bill Clinton spoke of ‘enlargement’ by which he meant that more capitalist democracies would emerge, and that this would be good for both economic prosperity and world peace as democracies do not make war on one another, especially when trade and investment are robust. Then came 9/11, the counterrevolutionary moves after the Arab Spring that caused severe civil strife and mass displacement, refugees and asylum seekers, ultra-nationalist reactions to neoliberalism, and now COVID-19 comes along. A mixture of alienation, scapegoating, and identity politics gave rise to the still bewildering phenomenon of societies freely electing, and even reelecting, autocratic demagogues that take away basic liberties without disguising their acts or intentions. A leader as regressive from the perspective of democratic values as Rodrigo Duterte enjoys an 80% approval rating in The Phillippines despite being responsible for as many as 20,000 extra-judicial executions, as well as numerous flagrant violations of human rights standards and disregard  of constitutional limitations on the exercise of state power. Modi remains popular in India despite his crude and cruel encroachment on the autonomy of Kashmir coupled with inflaming attitudes toward the large Muslim minority.

 

It is to be expected that there are no real democracies during wartime or in the midst of crises that give governments, regardless of ideology, a free hand to do whatever they proclaim as helpful in the name of national security, and now public health. During World War II the United States Government interned its West Coast Japanese minority without the slightest attempt to proceed in accord with the rule of law or even due process, and yet a majority of the U.S. Supreme Court had no trouble upholding this repressive undertaking as a reasonable security precaution given wartime apprehensions of disloyalty among Japanese citizens and residents. At least, the decision was controversial at the time, and there were dissenting opinions in the high court. Later on official apologies followed, especially 25 years after the end of the war when wartime fevers had dissipated. Now the U.S. government seeks to expel rather than intern, to keep the poor and unwanted out whether by erecting walls or imposing anti-Muslim bans and the like. Instead of global democratization, the recent international experience has been one of the previously unforeseen popularity of radical forms of de-democratization, proliferating ultra-nationalist outlooks, and the erosion of respect for the UN, international law, and global cooperation when such instruments of good order are more needed than ever. Also present in this anti-democratic ‘perfect storm’ is the penchant for undermining independent journalism and academic freedom, banishing free expression of ideas to private conversations among dissidents.

 

The cumulative effect of these political tendencies to weaken trust, and even draw the possibility of truth into question, making governance into a series of opportunistic fabrications. When scientifically backed opinions and unwelcome evidence can be dismissed as ‘hoaxes’ and ‘fake news,’ we no longer know what to believe, and most of all view skeptically what the government and its leaders tell us. Democracies depend for their legitimacy and effectiveness on trust as well as an atmosphere of normalcy, and when neither exists, there is confusion and chaos, and demagogues comes forth with self-confident and often malicious propaganda that is swallowed whole by large sectors of the population, however divorced from reality is the promise of rescue. One transcription of the message is this: making America ‘great’ again is being achieved at the price of inducing planetary collapse. This is the dark logic of our time that needs to be countered by a dialectic of resistance and transformation.

 

Interestingly, COVID has temporarily restored the stature and influence of the expert, at least for this current state of emergency. Can you imagine a future Trump press conference on climate change featuring the head of the Sierra Club, Environmental Defense Fund, and having Greta Thunberg share the platform with the experts. However absurd such a. musing, this  seems more or less how the American president seeks now  to reassure the public that despite some early stumbles, citizens can now have confidence that everything recommended by the best experts is being done to minimize the harm resulting from the global virus. Trump no longer appears in front of the TV cameras and assembled journalists as the preeminent know-everything leader. Instead he is flanked by health experts, corporate managers, and cabinet member to whom he regularly defers whenever a question by a journalist raises a technical issue. In this ironic turn, the supreme leader has become the novice, and hopefully will soon receive a pink slip of the kind he so gleefully issued while weekly performing on The Apprentice.

 

Of course, experts have their limits as well, and relying on the authority of the measurable is not a humane path to the future. Ethical sensitivity, especially empathy, is more important than following the evidence as interpreted by many experts, who are often hiding their own questionable policy agendas or career ambitions behind a flurry of numbers and graphs. So somewhere between banishing reality as fake news and worshipping the dapper expert as our supreme guide we need to find the courage, wisdom, and humility to reach difficult decisions that move humanity forward. Yet we are a long way from generating the political choices that include such constructive voices. So far what opposes the entrenched autocrat seems an improvement worth supporting, but It doesn’t even pretend to transform the system.

 

Without overdoing it, the real lessons to be learned are well depicted in a fine essay by Bruce Franklin, an admired friend and long one of the most perceptive and humane interpreters of the political scene, whose virtues have unfortunately automatically relegated him to the outer margins of public awareness. His piece, https://www.counterpunch.org/2020/03/13/what-is-covid-19-trying-to-teach-us/  stresses the idea that continuing to rely on state-centric world order and transactional geopolitics is to choose a doomsday destiny not only for country, but for the human species. If we cannot learn from the COVID-19 experience of our dependence on global cooperation, and a win/win approach to global problem-solving, the human species is far along on bio-ecological death march. As Franklin makes clear, in responding positively to a pandemic we help ourselves by helping other, and we hurt ourselves when we refuse to do so. His crucial point is that climate change, extreme poverty, biodiversity, global migration, nuclear disarmament, demilitarization are essentially the same: challenges of global scope that will not be resolved except by global win/win responses on a comparable scale.

 

 

Weaponizing Lawfare in The Philippines

22 Feb

[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

 

 Good Afternoon:

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.

 

Concluding Comment

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.