I WAS developing a column on “due process of law,” built around the prizefight being promoted (by the Inquirer) between the fiscalizer (Sen. Leila de Lima) and The Punisher (President Rodrigo Duterte), when I realized that the boxing imagery would cheapen the more fundamental issues involved in the depressing spectacle of state-sanctioned killings in the country today.
I thought it would be more useful if I examined instead the underlying clash between the right of criminal suspects to due process and the right of society to protect itself and its members.
While doing research on this weighty subject, I was startled to find strong and persuasive literature in support of both sides.
Daniel Webster’s noble summation, “Due process of law is that which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,” stands out as a banner for due process, in addition to the Bill of Rights in the Constitution.
On the other side, there is also much persuasive literature and equally explicit constitutional provisions that argue eloquently for the assertion of state responsibility to suppress the lawless.
Conventional thinking presumes that this debate was settled long ago in favor of the rights of suspects to due process over the rights of society to protect itself.
The advent of Duterte is a reminder that the debate is far from settled. There is a strong current of opinion in this country in favor of a hard-line policy against crime, especially the illegal drugs trade.
Duterte conducting a class on public policy
I think what is happening is this: President Duterte is conducting a class in public policy in which we the citizens are the students.
The subject is not the illegal drugs trade, but two critical and related topics:
1. The moral argument or rationale for capital punishment and the execution of criminals.
2. The state’s monopoly of violence, which seeks to crush lawless elements (organized crime, terrorism, insurgency) in the country.
These are fields of study and research in political science, criminology and police science, and sociology.
To take the topics in sequence, this is what DU30 appears to be telling us.
Why the death penalty is necessary
Like other government executives before him, Duterte believes that the death penalty “affirms life.” By failing to execute murderers or stop drug lords, we signal a lessened regard for the value of the lives of victims. People who oppose the death penalty are like the neighbors of a teenage murder victim, who heard her cries for help but did nothing. They are like the neighbors who looked away while the drug pusher plied their ugly trade and ruined the lives of people.
This is the standard “moral defense” of death as punishment. Even if executions don’t deter violent crime or the drugs trade any more effectively than imprisonment, the death penalty is still required as the only means society has of doing justice in response to the worst of crimes.
One former mayor of New York City, Edward Koch, fully endorses this view of the death penalty. He has authored a famous article, “Death and justice: How capital punishment affirms life,” which lays out his argument cogently and persuasively.
He concluded the article with these words: “The death of anyone—even a convicted killer—diminishes us all. But we are diminished even more by a justice system that fails to function. It is an illusion to let ourselves believe that doing away with capital punishment moves the murderer’s deed from our conscience. The rights of society are paramount…
“It is hard to imagine anything worse than being murdered while neighbors do nothing. But something worse exists. When those same neighbors shrink back from justly punishing the murderer, the victim dies twice.”
Duterte’s thinking with respect to illegal drugs is similar to this. He shares the frustration and anger of people who see that the Aquino government did nothing to combat the drug menace. So what if the death penalty doesn’t work as a deterrent? At least it gives citizens the satisfaction of knowing that we got one or two of the sons of bitches.
State monopoly of violence
The other powerful argument focuses on the state’s monopoly of legitimate physical force in society.
State monopoly of violence is the concept that the state alone has the right to use or authorize the use of physical force. It is widely regarded as a defining characteristic of the modern state.
In his lecture “Politics as a Vocation” (1918), the German sociologist Max Weber defines the state as a “human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”
The concept does not imply that the state is the only actor actually using violence but, rather, that it is the only actor that can legitimately authorize its use. The state can grant another actor the right to use violence without losing its monopoly, as long as it remains the only source of the right to use violence.
The monopoly of the legitimate use of physical force, also known as the monopoly on violence, is a core concept of modern public law.
This monopoly is limited to a certain geographical area. A necessary condition of statehood is the retention of such a monopoly.
De Lima vs Duterte
Because government has failed miserably to solve the great problems of national life, Duterte is taking us back to the basics of governance to find the wellsprings for effective government.
In law enforcement, his government is searching for the right policy mix that will enable it to overcome the threat posed by organized crime, repel the threat of Islamist terrorism, and negotiate lasting peace with insurgents.
At the moment, the public eye is riveted more on the responsibility of government than on the rights of criminal suspects.
The safety of society comes first. The court process can wait. This is one big reason why the death toll is high and mounting.
The balance will tilt when Congress debates the issue and conducts its promised inquiries into the killings.
“I am watching you,” Sen. De Lima has warned the President.
No doubt, the President is watching her in turn.
This is going to be one hell of a prizefight, when Sen. Manny Pacquiao also gets into the ring.